v.\ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


k 


A   TREATISE 


LAW  OF  EYIDENCE. 


BY 


SIMOK    GREEKLEAF,  LL.D. 


Qiiorsum  eiiim  sacras  leges  inventie  et  sancit;i3  fiiere,  nisi  ut  ex  ipsarum  justitia  uniciiique 
jus  suum  tribuaturV  —  Mascakdus  ex  Ulpian. 


IN    THREE    VOLUMES. 

Vol.   I. 

FIFTEENTH   EDITION, 
REVISED,    WITH    LARGE    ADDITIONS, 

BY 

SIMON   GREENLEAF   CROSWELL. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

1892. 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

By  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  tlie  year  1863, 

By  James  Greenleaf,  , 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massaciiusetts. 

Entered  according  to  Act  of  Congress,  in  tlie  year  1800, 

By  Mrs.  James  Gkeenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massaciiusetts. 

Entered  according  to  Act  of  Congress,  in  tlie  year  1876, 

By  C.  K.  Euller  and  C.  A.  Croswell, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1883, 

By  C.  K.  Fuller, 
in  the  Office  of  tlie  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1892, 

By  C.  K.  Fuller, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

T 


University  Press: 
John  Wilson  and  Son,  Cambridge. 


TO  THE   HONORABLE 


JOSEPH    STORY    LL.  D., 


ONE    OF    THE    JUSTICES    OF    THE    SUPREME    COURT    OF   THE    UNITED    STATES, 
AND    DANE    PROFESSOR    OF    LAW    IN    HARVARD     UNIVERSITY. 


Sir,  —  In  dedicating  this  work  to  yon,  I  perform  an  office 
both  justly  due  to  yourself  and  delightful  to  me,  —  that  of 
adding  the  evidence  of  a  private  and  confidential  witness  to 
the  abundant  public  testimonials  of  your  worth.  For  more 
than  thirty  years  the  jurisprudence  of  our  country  has  been 
illustrated  by  your  professional  and  juridical  labors;  with 
what  success,  it  is  now  superfluous  to  speak.  Other  Jurists 
have  attained  distinction  in  separate  departments  of  the 
law ;  it  has  been  reserved  for  yourself,  with  singular  felic- 
ity, to  cultivate  and  administer  them  all.  Looking  back 
to  the  unsettled  state  of  the  law  of  our  national  institutions, 
at  the  period  of  your  accession  to  the  bench  of  the  Supreme 
Court  of  the  United  States,  and  considering  the  unlimited 
variety  of  subjects  within  the  cognizance  of  the  Federal 
tribunals,  I  do  but  express  the  consenting  opinions  of 
your  contemporaries,  in  congratulating  our  country  that 


IV  DEDICATION. 

your  life  and  vigor  have  been  spared  until  the  fabric 
of  her  jurisprudence  has  been  advanced  to  its  present 
state  of  lofty  eminence,  attractive  beauty,  and  enduring 
strength. 

But  many  will  regard  the  foundation  of  the  present  Law 
School  in  Harvard  University  as  the  crowning  benefit, 
which,  through  30ur  instrumentality,  has  been  conferred 
on  our  profession  and  country.  Of  the  multitude  of  young 
men,  who  will  have  drunk  at  this  fountain  of  jurisprudence, 
many  will  administer  the  law,  in  every  portion  of  this  wide- 
spread Republic,  in  the  true  spirit  of  the  doctrines  here 
inculcated  ;  and  succeeding  throngs  of  ingenuous  youth  will, 
I  trust,  be  here  imbued  with  the  same  spirit,  as  long  as  our 
government  shall  remain  a  government  of  law.  Your  anx- 
iety to  perpetuate  the  benefits  of  this  Institution,  and  the 
variety,  extent,  and  untiring  constancy  of  your  labors  in 
this  cause,  as  well  as  the  cheerful  patience  with  which  they 
have  been  borne,  are  peculiarly  known  to  myself ;  while, 
at  the  same  time,  I  have  witnessed  and  been  instructed  by 
the  high  moral  character,  the  widely  expanded  views,  and 
the  learned  and  just  expositions  of  the  law,  which  have  alike 
distinguished  your  private  Lectures  and  your  published 
Commentaries.  With  unaffected  sincerity  I  may  be  per- 
mitted to  acknowledge,  that  while  my  path  has  been 
illumined  for  many  3'ears  by  your  personal  friendship  and 
animating  example,  to  have  been  selected  as  your  associate 
in  the  arduous  and  responsible  labors  of  this  Institution, 
I  shall  ever  regard  as  the  peculiar  honor  and  happiness 
of  my  professional  life.  Beaie  vixisse  videar,  quia  cum 
Scipione  mxerim. 


DEDICATION.  "^ 

Long  may  you  continue  to  reap  the  rich  reward  of  labors 
so  vast,  so  incessant,  and  of  such  surpassing  vaUie,  in  the 
heartfelt  gratitude  of  our  whole  country,  and  in  the  pro.s- 
perity  of  her  institutions,  which  you  have  done  so  much  to 
establish  and  adorn. 

1  am,  with  the  highest  respect, 
Your  obliged  friend, 

SIMON   GREENLEAF. 

Cambridge,  Massachusetts, 
Februaiy  23,  1842. 


PREFACE   TO   THE  FIFTEENTH   EDITION. 


Every  branch  of  the  law  is  constantly  receiving  ad- 
ditions and  limitations  from  time  to  time,  as  the  Courts 
apply  its  principles  to  the  varying  conditions  of  business 
and  social  affairs.  Especially  is  this  true  of  the  law  of 
Evidence,  which  is  necessarily  discussed  and  applied  in 
every  case  where  an  issue  of  fact  is  joined,  and  which 
from  its  very  nature  is  apt  to  raise  doubtful  points  re- 
quiring the  decision  of  the  highest  courts  of  law  for  their 
ultimate  settlement.  The  great  number  of  cases  involving 
questions  of  Evidence  and  reported  since  the  last  (14th) 
edition  of  Prof.  Greenleaf's  Treatise,  rendered  it  desirable 
that  a  new  edition  should  now  be  prepared,  which  should 
incorporate  in  the  work,  the  substance  of  these  cases,  so 
far  as  they  add  anything  new  to  the  principles  of  this 
topic  of  the  Law.  The  editor  has,  therefore,  made  addi- 
tions of  new  cases  amounting  to  nearly  1,900  in  number, 
and  including  mainly  such  cases  decided  and  reported  since 
1883  as  he  deemed  most  important  in  principle,  or  instruc- 
tive, as  showing  the  tendency  of  the  courts  in  new  lines  of 
decision.  The  subjects  which  have  been  affected  most 
materially  in  the  period  covered  by  the  new  matter  of 
this  edition,  and  which  have  been  treated  with  more  or 
less  fulness  herein,  are  these :  Real  Evidence  ;  Presump- 


VIII  PREFACE. 


tions ;  the  admission  of  proof  of  Character  or  Reputation, 
especially  for  the  defendant  in  criminal  cases ;  the  admissi- 
bility of  Statements  of  pain,  suffering,  etc. ;  the  meaning 
of  the  terms  Belevancij  and  Res  Gestce ;  the  introduction  of 
proof  of  collateral  facts ;  Shop  Books  as  evidence ;  Plead- 
ings, how  far  evidence  ;  the  privileges  of  attorney  and 
client ;  of  doctors  and  patients ;  of  clergymen  and  peni- 
tents ;  oral  inducements  to  written  contracts  ;  and  a  very 
full  statement  of  the  statutes  and  decisions  affecting  the 
competency  of  parties  as  witnesses ;  the  competency  of 
husband  and  wife  for  and  against  each  other,  and  the 
competency  of  persons  convicted  of  crimes,  as  witnesses ; 
and  also  the  principles  affecting  the  introduction  of  ex- 
pert testimony  and  the  comparison  of  handwritings  in 
evidence. 

It  is  believed  that  these,  and   the   other  additions  to 
the  work,   represent   the  development  of  the   law  since 

the  last  edition. 

S.  G.  C. 

Cambridge,  September,  1892. 


ADVERTISEMENT   TO   THE   FIRST   EDITION. 


The  profession  being  already  furnished  with  the  excel« 
lent  treatises  of  Mr.  Starkie  and  Mr.  Phillips  on  Evidence, 
with  large  bodies  of  notes,  referring  to  American  decisions, 
perhaps  some  apology  may  be  deemed  necessary  for  ob- 
truding on  their  notice  another  work,  on  the  same  subject. 
But  the  want  of  a  proper  text-book,  for  the  use  of  the 
students  under  my  instruction,  urged  me  to  prepare  some- 
thing to  supply  this  deficiency  ;  and,  having  embarked  in 
the  undertaking,  I  was  naturally  led  to  the  endeavor  to 
render  the  work  acceptable  to  the  profession,  as  well  as 
useful  to  the  student.  I  would  not  herein  be  thought  to 
disparage  the  invaluable  works  just  mentioned;  which,  for 
their  accuracy  of  learning,  elegance,  and  sound  philosophy, 
are  so  highly  and  universally  esteemed  by  the  American 
Bar.  But  many  of  the  topics  they  contain  were  never 
applicable  to  this  country ;  some  others  are  now  obsolete ; 
and  the  body  of  notes  has  become  so  large,  as  almost  to 
overwhelm  the  text,  thus  greatly  embarrassing  the  student, 
increasing  the  labors  of  the  instructor,  and  rendering  it 
indispensable  that  the  work  should  be  rewritten,  with  ex- 
clusive reference  to  our  own  jurisprudence.  I  have  en- 
deavored to  state  those  doctrines  and  rules  of  the  Law  of 
Evidence  which  are   common   to  all   the  United  States ; 


X  ADVERTISEMENT    TO    THE    FIRST    EDITION. 

omitting  what  is  purely  local  law,  and  citing  only  such 
cases  as  seemed  necessary  to  illustrate  and  support  the 
text.  Doubtless  a  happier  selection  of  these  might  be 
made,  and  the  work  might  have  been  much  better  exe- 
cuted by  another  hand ;  for  now  it  is  finished,  I  find  it 
but  an  approximation  towards  what  was  originally  desired. 
But  in  the  hope  that  it  still  may  be  found  not  useless,  as 
the  germ  of.  a  better  treatise,  it  is  submitted  to  the  candor 
of  a  liberal  profession. 

Cambridge,  Massachusetts, 
February  23,  1842. 


PREFACE   TO   THE   FOURTEENTH   EDITION. 


In  preparing  this  edition  of  "  Greenleaf  on  Evidence," 
the  editor  has  endeavored  to  follow  the  plan  of  the  origi- 
nal work,  by  noticing  those  general  changes  in  the  law  of 
evidence  which  have  been  adopted  throughout  the  United 
States  since  the  last  edition  of  the  book  which  the  author 
himself  revised,  was  published. 

Among  most  obvious  changes  may  be  mentioned  the 
admission  as  witnesses  of  parties  to  a  suit  and  those  in- 
terested in  the  suit.  Besides  the  direct  results  of  the 
statutes  which  accomplish  this  change,  and  which  are 
noticed  under  the  Competency  of  Witnesses,  the  indirect 
effects  of  these  statutes  are  worthy  of  observation.  Thus, 
the  harmonious  adjustment  of  these  statutes  with  the 
common-law  rules  regarding  the  competency  of  husband 
and  wife  as  witnesses,  has  given  rise  to  a  number  oi 
decisions,  which  will  be  found  in  the  notes  to  the  chapters 
on  "Evidence  excluded  from  Public  Policy"  and  "Com- 
petency of  Witnesses."  Again,  the  questions  how  far,  if 
at  all,  a  party  to  a  suit  who  testifies  in  his  own  behalf 
waives  his  privilege  of  not  criminating  himself,  particularly 
in  a  criminal  case,  and  how  far  his  character  for  truth  is 
brought  in  issue  by  his  so  testifying,  have  been  fruitful 
themes  of  disputation. 

Another  important  change  is  the  gradual  decrease  in  tlie 
w^eight  given  to  presumptions  of  law,  the  tendency  to  con- 
sider nearly  all  such  presumptions  rebuttable,  and  to  treat 


X^j  PREFACE    TO    THE    FOURTEENTH    EDITION. 

many  Avhich  were  formerly  called  rebuttable  presumptions 
of  law  as  presumptions  of  fact  or  inference  to  be  drawn 
by  the  jury.  This  last  change  results  from  a  disposition, 
strongly  marked  in  courts  of  the  present  day,  to  enlarge 
the  province  of  the  jury  as  much  as  possible,  and  to  leave 
the  jury  as  free  as  possible,  constituting  it  the  ultimate 
arbiter  of  the  case,  and  restraining  it  only  by  the  general 
principles  of  law  applicable  to  the  case  in  issue,  and  con- 
veyed to  the  jury  in  the  instruction  of  the  court.  A  large 
addition  to  the  province  of  the  jury  is  the  submission  to  its 
decision  of  questions  of  reasonable  and  proper  care,  negli- 
gence, reasonable  cause,  and  kindred  subjects, — the  wisdom 
of  which  submission  is  undoubted,  as  the  decision  of  these 
questions  depends  upon  the  standard  of  conduct  which  an 
ordinarily  prudent  man  would  adopt  in  such  cases;  and  the 
jury  is,  from  the  manner  in  which  its  members  are  selected 
and  their  number,  a  tribunal  eminently  fitted  to  pass  upon 
these  topics. 

These  and  other  changes  in  the  rules  of  evidence  have 
furnished  the  substance  of  the  notes  of  the  editor,  which, 
together  with  such  notes  of  previous  editors  as  have  been 
retained,  are  placed  in  double  columns  at  the  foot  of  the 
page ;  for  it  was  thought  advisable  to  separate  the  text  and 
notes  of  the  author  from  the  editor's  notes,  so  as  to  leave 
the  text  and  notes  of  the  author  as  they  stood  in  the  last 
edition  revised  by  him.  The  editor  has  retained  many 
of  the  notes  of  the  previous  editors, — particularly  those  of 
Judges  Redfield  and  May,  though  the  matter  has  been 
recast  into  new  form  and  combined  with  additional  notes. 
In  consequence  of  pursuing  this  mode  of  treatment,  it  was 
not  feasible  to  distinguish  the  notes  of  previous  editors, 
except  a  few  important  notes  of  Judges  Redfield  and  May, 
which  have  been  cited  verhatim  in  the  present  edition. 

In  the  large  addition  to  the  citation  of  cases,  and  in  tlie 
discussions  of  points  of  evidence  in  the  notes,  the  editor 


PREFACE   TO    THE    FOURTEENTH    EDITION.  XIII 

has  endeavored  to  present  a  view  of  the  decisions  of  the 
Courts  of  the  United  States  generally.  To  this  end,  cita- 
tions of  cases  have  been  made  from  nearly  all  the  State 
Courts,  and  from  the  decisions  of  the  Federal  Courts ;  and 
the  aim  has  been  to  have  the  citations  as  far  as  possible 
leading  cases,  or  cases  where  the  point  in  question  has  re- 
ceived thorough  discussion.  In  the  discussion  of  points 
which  have  been  variously  decided  in  different  jurisdic- 
tions, a  presentation  of  both  sides  of  the  discussion  has 
been  given  by  citation  from  some  of  the  leading  opposing 
decisions. 

The  statements  of  the  present  English  law  have  been  for 
the  most  part  given  by  references  to  or  quotations  from  the 
"Digest  of  the  Law  of  Evidence,"  by  Sir  James  Stephen. 
The  General  Index  has  been  thoroughly  revised  by  J.  M. 
Gould,  Esq.,  of  the  Suffolk  bar,  and  its  usefulness  largely 
increased  by  additional  references,  both  to  the  author's 
text  and  the  editor's  notes.  It  is  believed  that  the  value 
of  these  additions  will  be  fully  appreciated  by  the 
profession. 

This  has  been  the  plan  of  the  editor.  However  imper- 
fect the  execution  may  have  been,  he  offers  the  results  of 
his  labor  to  the  profession,  in  the  hope  that  it  may  be 
of  some  assistance  to  them,  —  serving  at  least  to  guide 
them  to  the  reports  of  decided  cases,  which  are  the  foun- 
tains of  the  law. 

S.  G.  C. 

Cambridge,  September,  1883. 


NOTE. 


Some  of  the  citations  from  Stailvie's  Eeports,  in  the  earlier  part  of  this 
work,  are  made  from  the  Exeter  edition  of  1823,  and  the  residue  from  the 
London  edition  of  1817-20.  The  editions  of  the  principal  elementary  writers 
cited,  where  they  are  not  otherwise  expressed,  are  the  following  :  — 

Alciati,  Opera  Omnia.     Basilese.     1582.     4  torn.  fol. 

Best  on  Presumptions      Lend.     1844. 

Best  Principles  of  Evidence.     Lond.     1849. 

Canciani,  Leges  Barbarorum  Antiquae.     Venetiis.     1781-178.5.     5  vol.  fol. 

Carpzovii,  Practice  Rer.  Crim.     Francof.  ad  Msenum.     17.38.     3  vol.  fol. 

Corpus  Juris  Glossatum.     Lugduni.     1G27.     0  tom.  fol. 

Danty,  Traite  de  la  Preuve.     Paris.     1097.     4to. 

Everhardi  Concilia.  Ant.     1043.     fol. 

Farinacii  Opera.     Francof.  ad  Maenum.     1618-1686.     9  vol.  foL 

Glassford  on  Evidence.     Edinb.     1820. 

Gresley  on  Evidence.     Philad.     1837. 

Joy  on  Confessions.     Dublin.     1842. 

Mascardus  de  Probationibus.     Francof.  ad  M.-enum.     1084.     4  vol.  fol. 

Matthews  on  Presumptive  Evidence.     New  York.     1830. 

Menochius  de  Presumptionibus.     Genevpe.     1670.     2  tom.  fol. 

Mittermaier,  Traite  de  la  Preuve  en  Matiere  Criminelle.     Paiis.     1848. 

Peake's  Evidence,  by  Norris.     Philad.     1825. 

Phillips  and  Amos  on  Evidence.     Lond.     1838.     8th  ed, 

Phillips  on  Evidence.     Lond.     1843.     8th  ed. 

Pothier  on  Obligations,  by  Evans.     Philad.     1826. 

Russell  on  Crimes.     3d  Amer.  ed. 

Starkie  on  Evidence.     6th  Amer.  ed.     2  vols. 

Stephen  on  Pleading.     Philad.     1824. 

Strykiorum,  Opera.     Francof.  ad  Ma3num.     1743-1753.     15  vol.  foL 

Tait  on  Evidence.     Edinb.     1834. 

Tidd's  Practice.     9th  Lond.  ed. 

AVigram  on  the  Interpretation  of  Wills.     3d  Lond.  ed.     1840. 

Wills  on  Circumstantial  Evidence.     Lond.     1838. 


CONTENTS. 


PART  1. 

OF   THE   NATURE   AXD   PRINCIPLES   OF   EVIDENCE. 

CHAPTER    I.                                                     Section 
Preliminary  Observations 1-3 

CHAPTER   H. 

Of  Things  judicially  taken  Notice  of  without  Proof     .     .     .     4-C 

CHAPTER   III. 
Of  the  Grounds  of  Belief 7-13 

CHAPTER  IV. 
Of  Presumptive  Evidence 14-48 

PART    II. 

OF   THE    RULES    WHICH    GOVERN    THE   PRODUCTION    OF 

TESTIMONY. 

CHAPTER   I. 
Of  the  Relevancy  of  Evidence 49-55 

CHAPTER   H. 
Of  the  Substance  of  the  Issue 56-73 

CHAPTER  III. 
Of  the  Burden  of  Proof 74-81 

CHAPTER  IV. 
Of  the  Best  Evidence 82-97 

CHAPTER   V. 
Of  Hearsay 98-126 

CHAPTER  VL 
Of  Matters  of  Public  and  General  Interest 127-110 

CHAPTER   VIL 

Of  Ancient  Possession 141-146 

vol.  i.  —  b 


XVIII  CONTENTS. 

CHAPTER   VIII.  g,,„,. 

Of  Declarations  against  Interest 147-155 

CHAPTER   IX. 
Of  Dying  Declarations 156-162 

CHAPTER   X. 

Of  the  Testimony  of  Witnesses  subsequently  Dead,  Absent, 

OR  Disqualified 163-168 

CHAPTER   XI. 
Of  Admissions 169-212 

CHAPTER   XII. 
Of  Confessions 213-235 

CHAPTER   XIII. 
Of  Evidence  excluded  by  Public  Policy 236-254 

CHAPTER   XIV. 
Of  the  Number  of  Witnesses  and  the  Xature  and  Quantity 

OF  Proof  required  in  Particular  Cases 255-274 

CHAPTER   XV. 
Of    the    Admissibility    of     Parol    or    Verbal    Evidence     to 

affect  that  which  is  "Written 275-305 

PART   III. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 

CHAPTER   I. 
Of  Witnesses  and   the   Means   of    procuring   their  Attend- 
ance         306-325 

CHAPTER  11. 
Of  the  Competency  of  Witnesses 826-430 

CHAPTER   III. 
Of  the  Examination  of  Witnesses 431-469 

CHAPTER   IV. 
Of  Public  Documents 470-498 

CHAPTER   V. 
Of  Records  and  Judicial  Writings 499-556 

CHAPTER   VI. 
Of  Private  Writings 557-584 


INDEX   TO   CASES   CITED. 


A. 

Section 

Section 

Addaiiis  V.  Seitzinger 

121 

,  122 

Abbey  v.  Li  11 

440 

Addington  v.  Magan 

66 

Abbot  V.  Iiiliabitants  of  Hermon 

197 

Addis  0.  Van  Buskirk 

66 

V.  Massie 

291 

Adler  v.  Friedman 

303 

V.  riiiDibe 

569,  572 

V.  State 

5 

Abbott  V.  Coleman 

578 

iEtna  Life  Ins.  Co.  v.  Deming 

248 

V.  Mitciieil 

385 

Atlalo  V.  Fourdrinier 

356 

V.  Pearson 

112 

Agriculturist  Co.  v.  Fitzgerald 

568 

Abby  V.  Goodrich 

428 

Aiken  v.  Kilburne 

237 

Abeel  V.  Haflcliff 

26-i 

Aitcheson  v.  Madock 

80 

Abercromhie  r.  Allen 

197 

Aitkin,  Ex  pctrte 

238 

Aberl  v.  Van  Gekler 

101) 

Ake  V.  State 

233 

Abney  v.  Kingsland 

51fl,  109 

Alban  v.  Pritchett 

185 

341 

Abrahams  v.  Bunn 

414,  422 

Albany  (Com.  Bk.  of)  v.  Hughes 

387 

Abrani  v.  Ehle 

30 

Alliertson  v.  Robertson 

104 

Acerro  et  ul.  v.  Petroni 

435 

Albrittin  v.  Huntsville 

5 

Acker  v.  Ledyard 

564 

Alcock  V.  Cooke 

139 

Ackerman,  Matter  of 

41 

V.  VVhatmore 

6 

Ackroyd  &  Warburton's  Case 

280 

Alden  v.  Dewey 

352 

Adae  v.  Zangs 

437 

V.  Goddard 

329 

Adamthwaite  v.  Synge 

608 

Alderson  v.  Clay                 42,  97, 

197 

198 

Adams  r.  Allen 

329 

Aldricli  V.  Kinney 

548 

V.  Balch 

539 

Alexander  ih  Caldwell 

189 

V.  Barnes                              22, 

531,  536 

V.  Chamberlain 

104 

V.  Bctz 

502,  509 

V.  Gibson 

443 

V.  Broughton 

533 

V.  Harris 

58 

V.  Clark 

41 

V.  Kaiser 

449 

V.  CouUiard                        116 

189,  565 

V.  Milwaukee 

5 

V.  Cuddy 

397 

V.  Moore 

305 

V.  Davidson 

190 

(Succession  of) 

34 

V.  Davis 

305,  416 

V.  Thompson 

305 

V.  Edwards 

329 

Alford  V.  State 

6 

V.  Field 

581 

Alger  ?;.  Andrews 

190 

V.  French 

109 

V.  Castle 

449 

V.  Frye 

568 

Alghieri  ?•.  State 

13a 

V.  Kerr 

672,  575 

Alivon  V.  Furnival 

94 

546 

V.  Lloyd 

451 

Allaire  v.  Allaire 

272 

V.  McMillan                       268 

269,  551 

Allan  V.  Comstock 

292 

V.  Morgan 

284 

Allcott  ?'.  Strong 

177 

V.  Pearson 

534 

Allegheny  r.  Nelson 

5,20 

V.  People 

440 

Allegheny  Ins.  Co.  v.  Hanlon 

436 

V.  Power 

73 

Allen  r.  Allen 

301 

V.  Sanders 

212 

V.  ]>cnnet 

268 

V.  Stanyan 

145 

r.  Butler 

197 

V.  Swansea 

109 

V.  Carter 

329 

V.  Wiieeler 

444 

V.  Coit 

197 

493 

V.  Wordley                * 

275 

V.  Denstone 

113 

XX 


INDEX   TO    CASES    CITED. 


Allen  7'.  Duncan 
I'.  Furbish 
r.  Harrison 
V.  Hawks 
V.  Killiiiger 
i\  Kingsbury 
V.  McKeen 

V.  Portland  Stage  Co. 
V.  Koot 
V.  Say  ward 
V.  Taylor 


Section 

lOH 
281,  'ASi 

392,  420,  4;J0 

182 

2'.);j 
lt)7 
521 
245 
24 
322 


V.  Trustees  of  School  Fund  528 

V.  Watson  489 

Ailing  V.  Wenzell  118 

Allington  v.  Bearcroft  392 

AUnian  v.  Owen  5 
Allyn  V.  Boston  and  Albany  R.  R. 

Co.  49 

Almgren  v.  Dutilh  283 

Alna  V.  Plummer  264 

AIner  v.  George  172,  173,  305 

Alsager  v.  St.  Katherine's  Dock  Co.    278 

Alston  V.  Taylor  120 

Altham's  Case  301 

Altscbul  r.  San  Francisco,  &c.  Ass.      287 

Alvord  V.  Baker  38 

Ambrose  v.  Clendon  110 

American  Fur  Co.  v.  U.  S.  Ill,  233 

American  L.  Ins.  Co.  v.  Rosenagle       488 

Ames  V.  Brooks  275 

V.  McCamber  489 

V.  VVitliington  427 

Ames  (Succession  of)  337 

Ames'  Will,  In  re  440 

Amey  v.  Long  216,  309,  558 

Amherst  Bank  v.  Root  572 

Ammerman  v.  Teeter  10 

Amos  V.  Hughes  74 

Anchor  Milling  Co.  v.  Walsh  118 

Anderson  v.  Anderson  5 

V.  Brock  333,  427 

V.  Cramer  81 

V.  Dunn  309 

r.  Hamilton  251 

V.  Kent  189 

V.  Long  54,  55 

V.  McPike  171 

V.  Nagle  503 

V.  Parker  104 

V.  Robson  558 

r.  Root  563 

V.  Sanderson  185 

r.  Weston  38,40,121,122 

Andrews  v.  Andrews  319 

V.  Beck  34 

V.  Beecker  173 

V.  Brown  534 


V.  Dyer 

291 

V.  Frye 

451 

V.  Lembeck 

317 

V.  Ohio  &  Miss.  R.  R.  Co. 

2.3i) 

V.  Palmer 

168 

V.  Parker 

322 

V.  Solomon 

239 

Section 
Andrews  v.  Vanduzer  55 

Androscoggin  Bank  v.  Kimball  38a 

Angell  V.  Hester  329 

V.  State  220 

Anglesey  v.  Hatherton  140 

Angus  V.  Smith  462 

Anheuser-Busch  Brew.  Ass.  v. 

Hutmacher  88,  445 

Ankersmit  v.  Tucli  462 

Ankerstein  v.  Clarke  69 

Annandale  (Marchioness  of)  v.  Harris  23 

Annesley  v.  Earl  of  Anglesea  37,  244,  469 

Anon.  4,  5,  28,  37,  173,  237,  243, 

247,  249,  259,  284,  310,  319, 

339,  348,  349,  409.  432,  438, 

461,  479,  480,  509,  572 

Anscomb  v.  Shore  137,  405 

Anthony  v.  State  156 

Apollon,  The  6 

Apothecaries'  Co.  v.  Bentley  79 

Appeal  of  Nicely  445 

Ajipleton  ;-.  Boyd  172,  330,  452 

V.  Lord  Braybrook  514 

Arayo  i'.  Currel  5 

Aibon  (•.  Fussell  38« 

Arbouin  v.  Anderson  81 

Archer  v.  English  205 

V.  N.  y.  N.  H.  &  H.  R.  R.  Co  82 

V.  Walker  205 

Arding  v.  Flower  316,  317 

Armory  r.  Delamirie  34,  37 

Armstrong  v.  Hewitt  485 

Arnd  r.  Amling  370 

Arnfield  v.  Bate  60 

Arnold  r.  Arnold  369,  528,  532 

V.  Bishop  of  Bath  and  Wells  484 

V.  Cessna  281 

V.  Jones  568 

V.  Revoult  69 

V.  Tourtellot  498 

Arnold's  Case  229 

Arnott  i\  Redfern  546 

Arrison  v.  Harmstead  568 

Arthur  v.  Roberts  279,  280 

Artz  r.  Chicago,  R.  I.  &  P.  R.  R.  Co.  443 

Arundel  v.  Arundel  554 

Arundell  v.  White  513 

Ashcraft  v.  De  Armond  99 

Ashland  v.  Marlborough  102,  440 

Ashley  i'.  Ashley  86 

V.  Martin  5 

V.  Root  489 

r.  Wolcott  64 

Ash  more  v.  Hardy  97,  204 

Ashton  V.  Parker  361 

Ashworth  t\  Kittredge  497 

Aslin  V.  Parkin     -  635 

Aston  f.  Perkes  81 

Aston 's  Case  451 

Astor  ('.  Union  Ins.  Co.  280 

Atalanta,  The  31 

Atcrheson  v.  Everitt  328,  371,  374 

Atchison,  &c.  R.  R.  Co.  v.  Blackshire      5 

V.  Harper  62 


INDEX   TO    CASES    CITED. 


XXI 


Section 

Atherfold  v.  Beard  475 

Atkins  V.  Hatton  485 

V.  Sanj^er  el  al.  174 

V.  Tredgold  174,  176 

Atkinson  r.  Atkinson  43 

V.  (hininiins  290 

Atlantic  Ins.  Co.  v.  Conard  332 

Atlantic  Miit.  Ins.  Co.  v.  Fitzpatrick    323 

Att'y-(ien.  c.  Boston  293 

r.  Bowman  54,  55 

V.  Briant  250 

V  Buijiit  432 

V.  Cast  Plate  Glass  Co.  280 

V.  Davison  554 

V.  Drnniniond  295 

V.  Ewelme  Hospital  45 

V.  (Glasgow  College  295 

V.  Hitchcock     443,  449,  450,  455,  461 

V.  Jefferys  60 

V.  Parntlier  42,  81 

V.  Bearson  295 

i\  Proprietors,  &c.  46 

V.  Shore  295 

V.  Theakstone  479,  492 

V.  Windsor  37 

Attwood  w.  Small  171 

At  water  l\  Schenck  5 

Atwood  r.  Scott  310 

V.  Wei  ton  369,  370,  450 

Aubert  v.  Walsh  38 

Auditor  r.  Browne  480 

Audley's  (Lord)  Case  343 

Augur  Co.  V.  Whittier  88 

Augusta  r.  Hafers  51a 

V.  Windsor  115,  116,  117 

Augusta  (Bank  of)  v.  Earle  5,  43 

Austen  v.  Vesey  237 

Austin  ('.  Austin  20 

V.  Bostwick  112 

V.  t^hamber  171 

V.  Holland  40 

V.  llunisey  572 

V.  Sawver  271 

V.  State  445 

V.  Thompson  563 

V.  Vesey  237 

V.  Willes  384 

Australasia  (Bank  of)  v.  Nias  546 

Avery  v.  Miller  275 

V.  Pixley  273 

V.  Stewart  288 

Aveson  v.  Kinnaird   102, 156, 254,  337,  341 

Avilla  V.  Nash  49 

Ayer  v.  Austin  76 

Ayers  v.  Hewett  569 

V.  Watson  462 

Ayrey  i-.  Davenport  510 


B. 


Babb  i\  Clemson 
Babcock  v.  People 
Baccio  V.  People 


180,  568 
443 
102 


Baclielder  v.  Nutting 

SectSon 
558 

Backenstoss  v.  Stabler 

294 

Backhouse  v.  Middleton 

552 

Bacon  v.  Bacon 

322 

V.  Charlton 

102,  205 

V.  Chesney 
V.'  Towne 

187 
55 

V.  Williams 

581 

Badger  v.  Badger 
V.  Titcomb 

329 
532 

Bagley  v.  M'Mickle 
Bagot  V.  Williams 

37 
532 

Bailey  v.  Bailey 
V.  Haines 

392 

584 

V.  Hole 

430 

i;.  Hyde 
V.  Lumpkin 

55 

386 

V.  McMeckle 

84 

V.  Musgrave 

73 

V.  O'Bannon 

171 

V.  Taylor 
V.  Trumbull 

564 
52 

V.  Woods 

164 

Bailiffs  of  Tewkesbury  v.  Bricknell       58 

Baillie  v.  Hole  392 

i:  Jackson  485 

Bain  v.  Mason  493 

V.  Whitehaven  &  Furness  R.  R. 

Co.  49,  584 

Bainbridge  v.  Wade  289,  297 

Baird  o.  Cochran  452 

Baker  v.  Arnold  245 

V.  Blunt  574 

V.  Bradley  38a 

V.  Dening  272 

V.  Dewey  26 

V.  Field  504 

V.  Haines  581 

r.  Milburn  121 

V.  Monk  38a 

V.  Mygatt  6 

V.  Rand  532 

V.  Singer  Manfg.  Co.  212 

V.  Stackpole  112 

V.  Tyrwhitt  392,  428 

Balbo  V.  People  230 

Balcetti  v.  Serani  52 

Baldney  v.  Ritchie  560 

Baldwin  v.  Carter  287 

V.  Dixon  397,  398 

V.  Hale  502 

V.  McKay  87 

?;.  Parker  254 

Balfour  r.  Chew  505 

Ballard  v.  New  York,  &c.  R.  R.  Co.      440 

V.  Noaks  357 

V.  Walker  304 

Ballen  v.  Michel  142 

Ballou  i:  Ballou  523 

Balls  V.  Westwood  25 

Balston  v.  Bensted  17 

Baltimore  v.  State  5 

Baltimore,  &c.  R.  R.  Co.  v.  Glenn  5 

Bamfield  v.  Massey  54 


XXll 


INDEX   TO   CASES    CITED. 


Section 

Banbury  Peerage  Case  28,  81 

Bancrott  v.  (irover  287 

Banert  v.  Day  10>] 

Bank  of  Augusta  v.  Earle  5,  4;J 

Bank  of  Australasia  v.  Nias  546 

Bank  of  Hindustan  r.  Alison  22 

Bank  of  I.ansingburg  r.  Crary  271 

Bank  of  Middlebury  r.  Rutland  440 

Bank  of  Monroe  v.  Culver  115 

V.  Field  113 

Bank  of  Newbury  v.  Greenville  R.  R.  Co.  5 

Bank  of  Tennessee  v.  Cowan  115 

Bank  of  United  States  v.  Corcoran  2 

V.  Dandridge  21,  40,  Sa 

V.  Dunn  385 

V.  Johnson  416 

I'.  Stearns  416 

Bank  of  Utica  v.  Hillard        385,  474,  559 

V.  Mersereau  240,  242,  243,  422 


V.  Siniilley 

430 

Bank  of  Woodstock  v.  Clark 

108 

Banks  ;'.  Burnam 

6 

V.  Farquharson 

572 

V.  Kain 

420 

Barada  v.  Carondelet 

331 

Barb  v.  Fish 

533 

Barbat  v.  Allen 

334 

Barber  v.  Gingell 

200 

I'.  Holmes 

484,  493 

V.  Lyon 

37 

V.  Merriam 

102 

V.  Terrell 

569 

Barbour  v.  Watts 

505 

Barclay  r.  Hopkins 

284a 

V.  Wain  Wright 

284,  284« 

Barden  v.  Boston,  &c.  R.  R. 

Co. 

4!) 

Baring  r.  Clark 

113 

V.  Reeder 

342 

Barker  v.  Bushnell 

192 

V.  Coleman 

440 

V.  Comins 

440 

V.  Dixie 

334,  340 

V.  Haskell 

117, 118 

?".  Kuhn 

238 

V.  Macrae 

416 

V.  Parsons 

310 

V.  Ray                        37, 

116 

147, 149 

Barlew  v.  Vowell 

167 

Barlow  v.  Dupuy 

510 

V.  Vowell 

418 

Barnard  v.  Crosby 

484 

V.  Darling 

302 

Barnes  v.  Allen 

108 

V.  Camack 

337 

V.  Dow 

329 

V.  Harris 

238 

239,  241 

V.  Lucas 

207 

V.  Mawson 

137,  139 

V.  State 

219,  432 

V.  Trompowsky 

572 

Barnuni  v.  Barnum 

323 

Baron  I)e  Bode  v.  Reginam 

487 

Baron  de  Bode's  Case 

109 

Barough  ;-'.  White 

171 

190,  191 

Barr  v.  Gratz 
Barret  v.  Gore 
Barrett  v.  Allen 
V.  Buxton 
V.  Gore 
V.  Rogers 
V.  Stow 

V.  Thorndike 
V.  Union  Mut.  Fire  Ins. 
Barretto  v.  Snowden 
Barrick  v.  Austin 
Barrington  ;'.  Bank  of  Was 
Barronet's  Case 
Barrow  v.  Humphreys 
Barrows  v.  Downs 

V.  Turner 
Barrs  v.  Jackson 
Barr3'  i\  Bebbington 

V.  Ransom 

V.  Ryan 
Barstow's  Case 
Bartheleiney  v.  People 
Bartholomew  v.  Farwell 

V.  People 

I'.  Stephens 
Bartlet  v.  Delprat 
Bartlett  v.  Decreet 

V.  Emerson 

r.  Pickersgill 

r.  Smith 

r.  Tarbox 

V.  W3'man 
Barton  r.  Thompson 
Baits  V.  Morse 
Bas  i\  Steele 
Bass  V.  Clive 
Bassett  v.  Marshall 

i\  Shepardson 
Basshor  r.  Forbes 
Bast  V.  Bank 
Batchelder  v.  Batchelder 

V.  Sanborn 
Bate  V.  Hill 

V.  Kinsey 

V.  Russell 
Bateman  r.  Bailey 
Bates  r.  Barber 

??.  Forcht 

V.  N.  Y.  Ins.  Co. 

V.  Ryland 

V.  Thompson 
Bateson  v.  Hartsink 
Batthews  v.  Galindo 
Battin  v.  Bigelow 
Battles  V.  Holley 
Batturs  v.  Sellers 
Bauerman  v.  Radenius 
Baxter  v.  Doe 

V.  Graham 

V.  Knowles 

V.  Rodman 
Bay  V.  Cook 

V.  Gunn 
Bayard  v.  Malcolm 


Section 
142,  144,  539 
347 
288 
284 
356 
305 
283 
265,  568 
Co.  281 

391 
174 
hington      564 
34 
319 
487,  488 
285 
550 
150,  158 
281 
569 
218 
108 
115 
872 
561 
100,  180 
101 
109,  145 
362 
49 
192 
281 
13a 
441 
559 
196,  207 
86 
329 
284a 
275 
462 
118 
54,  458 
241, 562 
356,  358 
108,  180 
461 
329 
173 
423 
532 
246 
207,  339 
41 
46.  84 
199 
172 
51a 
398 
191 
422 
117 
400 
275 


INDEX   TO    CASES    CITED. 


XXIU 


Section 

Bayley  v.  Osborn 

427 

V.  Wylie 

516 

Baylies  v.  I*\'ttyplace 

58 

Baylis  v.  Tlie  Att'y-Gen. 

291 

Bayly's  Adm'r  v.  Chubb 

.5 

Bay  lie  v.  Stone 

89 

Baynes  v.  Forrest 

70 

Bay  View,  &<•.  Ass.  v.  Williams 

90 

Beach  v.  Mills 

118 

V.  Packard 

2t3 

V.  PeniK'll 

329 

V.  Kar.  &  Del.  R.  R.  Co. 

284a 

Beachcrof  t  «>.  Beaclicrot't 

288 

Beacon  L.  &  F.  Ass.  Co.  (■.  Gibb 

292 

Beal  V.  Nichols 

445 

V.  Thompson 

322 

Beale  v.  Commonwealth 

19 

Bealey  v.  Shaw 

17 

Beall  V.  Beck 

187 

V.  Poole 

88 

Beaman  v.  Russell 

564 

Beamon  v.  Ellice 

432 

Bean  o.  Green 

334 

V.  Quimby 

241 

Bearce  v.  Jackson 

24 

BearJ  r.  First  Nat.  Bank  of  Minn. 

329 

V.  Hale 

455 

V.  Talbot 

145 

Beardslee  v.  Ricliardson 

108 

Beardstown  r.  Virginia 

78 

108 

Beasley  v.  J5radley 

358 

V.  Magrath 

179 

V.  Watson 

281 

Beatson  u.  Skene 

251 

Beatty  v.  Clement 

121 

Beaty  v.  Kiiowle 

5 

Beauchamo  o.  Parry 

190 

Beaufort  v.  Crawshay 

49 

V.  Smith 

13G 

139 

V.  Swan 

45 

Beaumont  v.  Fell 

289 

291 

V.  Field 

277 

Beaver  v.  Lane 

69 

V.  Taylor 

108 

Beavers  v.  State 

13fi 

Becker  v.  Koch 

442 

Beckett  v.  Ramsdale 

329 

Beckley  v.  Freeman 

392 

,430 

Beckrow's  Case 

568 

Beckwith  v.  Benner 

245 

V.  Sydebotham 

440 

Becquet  c.  McCarthy 

546 

Bedell  v.  Russell 

76 

Bedingfield's  Case 

108 

Beebe  v.  Parker 

130 

139 

V.  United  States 

6 

Beech's  Case 

65 

Beeching  v.  Gower 

421 

Beers  v.  Beers 

284 

Beery  n.  United  States 

221 

Beggarly  v.  St;ite 

223 

Beidelman  v.  I<oulk 

397 

Beitman  r.  Hopkins 

334 

Beitz  V.  Fuller 

112 

174 

Section 

Belcher  v.  Magnay  421 

Belden  tt.  Lamb  51rt 

V.  Scott  329 

V.  Seymour  26 

Belhavcn  &  Stenton  Peerage  13 

Bell  V   Ansley  180 

V.  BrLW.ster  581 

f.  Hruen  283 

V.  Chaytor  571 

V.  Fireman's  Ins.  Co.  288 

V.  Hull  Railw.  Co.  430 

V.  Martin  287 

I-.  Morrison  112,  174,  323 

V-  Prewitt  445 

V.  Smith  395 

('.  Woodman  279 

Bellamy  r.  Cains  347 

Bellevv  v.  Russell  347 

Bellinger  i-.  New  York  Central  R.  R. 

Co.  440 

V.  People  451,  463 

Bellinger's  Case  224 

Bellows  r.  Ingham  548 

Belmoiit  V.  Morrill  5 

Beltziioover  o.  Blackstock  240 

Benaway  /;.  Conyne  432 

Bend  t:  Georgia  Ins.  Co.  292 

Bender  o    Fromberger  180 

i:  Pitzer  109 

Benham  v.  Dunbar  52 

n.  Hendrickson  288,  289 

Benjamin  r.  Hathaway  452 

V.  Porteus  115,  416 

V.  Sinclair  305 

Benner  v.  Frey  73 

Bennet  r.  Robison  167 

V.  Watson  313,  319 

Bennet's  Case  228 

Bennett  v.  Bennett  506 

17.  Clemence  441 

V.  Francis  205 

V.  Holmes  532 

V-  Hyde  55 

V.  Libhart  38 

V.  Morley  548 

V.  Runyon  21 

y.  Sharpe  272 

V.  State  of  Tennessee  6 

V-  Syndicate  Ins.  Co.  462 

v-  Womack  49 

Bensley  v.  Brockway  114 

Benson  n  Lundy  190 

(-•.  McFadden  440 

7'.  Olive  41 

Bent  r.  Baker  167,  386,  389,  390,  418 

Bentlcy  v.  Cooke  334,  339,  343 

V.  HoUenback  118 

V.  O'Bryan  189 

r.  Ward  117 

Benton  v.  Burgot  548 

Bentzing  v.  Scott  73 

Berd  c.  Lovelace  237 

Bergen  v  Bennet  46 

V.  People  217 


XXIV 


INDEX  TO   CASES    CITED. 


Section 

Berjrman  v.  Koberts  1«5 

Berkeley  Peerage  Case  104,  106,  125, 

128,  131,  133,  134 

Berkey  v.  Judd  329 

Bernion  v.  Woodbridge  201 

Bernasconi  v.  Farebrother  181 

Beriiett  v.  Taylor  572 

Berrenbert?  *■.  Boston  51a 

Beriingtoii  d.  Dormer  v.  Fortescue  359, 3b0 

Berry  v.  Banner  139 

V.  Commonwealth  218 

r.  Haddin  91 

V.  Stevens  329,  334,  341,  356 

Berrynian  >\  Wise  58,  83,  92,  195 

Bertlion  v.  Longhman  441 

Bertie  v.  Beaumont  142,  154 

Besson  v.  Cox  329 

Best  V.  Sinz  275 

Betiiam  r.  Benson  113 

Betts  V.  Badger  671 

V.  Bagley  548 

V.  Jones  427 

I'.  Starr  531 

V.  State  432 

Bettv  V.  Nail  104 

Bevan  v.  Waters  241,  245 

V.  Williams  195 

Beveridge  v.  M inter  254,  337 

Beverley  v.  Beverley  41 

V.  CJraven  144 

Beverley's  Case  189 

Bibb  V.  Tliomas  273 

P.iddis  V.  James  480,  489,  505 

Biddulpb  r.  Atlier  139 

Bigelow  )•.  Capen  285 

V.  Collamore  277 

V.  Legg  292 

V.  Sickles  254a 

x).  Windsor  532 

Biggs  V.  Lawrence  284 

Bigler  v.  Rey  lier  238 

Bilbie  i'.  Lumlev  212 

Billings  V.  Billings  281 

Binford  v.  Young  192 

Bingliam  r.  Cabbot  491 

V.  Dickie  65 

V.  Disbrow  334 

V.  Rogers  348 

V.  Stanley  81 

Bircb  v.  Depeyster  280 

Bircliard  v.  Booth  197 

Bird  V.  Commonweath  5 

V.  Hueston  148,  254,  334 

V.  Randall  531 

Birt  V.  Barlow  107,  493 

V.  Hood  395 

r.  Kershaw  391,  416 

r.  Rotbwell  6 

Bishop  c.  Chamhre  564 

f.  Cone  484 

V.  Doty  271 

Biss  r.  Mountain  397 

Bissell  r.  Briggs  542,  548 

V.  Edwards  505 


Section 

Bissell  V.  Morgan 

81 

V.  West 

13a 

Bissenger  v.  Guiteman 

284a 

Bixby  V.  Franklin  Ins.  Co. 

4»4 

Bixler's  Adm'x  v.  Parker 

5 

Black  V.  Fizer 

117 

V.  Hill 

287 

17.  Lamb 

284  a 

V.  Lord  Braybrook 

70,  514 

V.  State 

13a,  74 

V.  Woodron 

105 

Blackburn  c.  Commonwealth 

444 

V.  Crawfords                        103, 

104,  243 

V.  Hargreave 

311 

V.  Scholes 

205 

V.  State 

41 

Blackett  v.  Lowes 

137 

V.  Roval  Exch.  Ass.  Co.  292,  294 

r.  Weir  356,  389,  395 

Blackbam's  Case  550 

Blackington  v.  Johnson  186,  445 

V.  Rockland  96 

Blackwell  v.  Bull  288 

Blad  V.  Bamfield  541,  542 

Blade  r.  Noiand  37,  84,  568 

Blague  V.  Gold  301 

Blair  v.  Ellsworth  329 

V.  Pelliam  577 

Blake  v.  Albion  L.  Ass.  See.  53 

V.  Doherty  288 

V.  Exch.  Ins.  Co.  288 

r.  Fash  84 

r.  Ladd  356 

V.  Lynn,  &c.  Co.  19 

V.  Pilfold  251 

V.  Russ  563 

V.  Sanderson  25 

V.  White  109 

Blakemore  v.  Glamorganshire  Canal 

Co.  536,  537 

Blanchard  i-.  Ellis  24,  26 

V.  Pratt  49 

V.  Young  74,  91,  561 

Bland  v.  Haselrig  112 

V.  Swafford  319 

Blaney  v.  Rice  301 

Blanton  v.  Miller  349 

Blewett  r.  Tregonning  468 

Bligh  V.  Brent  270 

Blight  V.  Fisher  316 

V.  Rochester  25 

Bliss  V.  Brainard  79,  310 

V.  Mclutyre  568 

Blodget  V.  Jordan  605 

Blood  r.  Fairbanks,  329 

V.  Goodricb  304 

r.  Rideout  108 

Bloodgood  V.  Jamaica  175,  331 

Bloomington  v.  Shrock  440 

Bloor  V.  Davits  392 

Blossom  V.  Cannon  20,  46 

V.  Griffin  297 

Blower  v.  Hollis  511 

Bloxam  v.  Elsie  96 


INDEX   TO   CASES   CITED. 


XXV 


Section 

Section 

Blumhardt  ik  "Rohr 

118 

Boucher  v.  Lawson 

4»8 

Blundell  v.  Gladstone 

291 

Boucicault  v.  Fox 

88 

Blurton  v.  Toon 

572 

Bondereau  v.  Montgomery 

10;j 

Blytlie  V.  Sutlierland 

145 

Bouldin  (.'.  Massie 

84,  558 

Boardman  v.  Gore 

5G8« 

Bound  u.  Lathrop 

174 

V.  Reed 

145 

301 

Bourne  v.  Boston 

661 

V.  Spooner 

260a 

V.  Gatliff 

293 

Bob  V.  State 

199 

V.  Turner 

406 

Bock  V.  Wcigant 

462 

Bours  V.  Tuckerman 

316 

Boddy  V.  Boddy 

53 

Bovee  r.  McLean 

86,  91,  92 

Bodine's  Case 

13a 

Bowden  r.  Home 

632 

Bodvvell  V.  Osgood 

18 

Bowditch  V.  Mawley 

69 

V.  Swan 

55 

Bowen  v.  Bell 

26 

Body  !».  Jensen 

41 

V.  Chase 

109 

Boelitlinck  v.  Schneider 

487 

V.  Newport  Nat.  Bank 

89 

Boester  v.  Byrne 

329 

Bower  v.  State 

218 

Bogardus  v.  Trinity  Church 

145 

Bowerbank  v.  Monteiro 

283 

Bogart  V.  Brown 

5liO 

Bowie  V.  Maddox 

13 

Bogert  V.  Cauman 

275 

281 

Bowlby  V.  Bell 

267 

Boiieau  v.  liudlin 

551 

Bowles  ('.  Langworthy 

569 

V.  Ruthn 

171 

V.  Neale 

81 

Boisbanc,  Succession  of 

34 

V.  Orr 

546 

Bdlin  V.  Mellidew 

320 

Bowman  v.  Norton 

239,  243 

Bolivar  Man.  Co.  v.  Neponset  Man. 

V.  Noyes 

356,  357 

Co. 

17 

V.  Flunket 

581 

Bolles  V.  Beach 

573 

V.  Rostron 

211 

Bolton  V.  Bishop  of  Carlisle 

265 

568 

r.  Sanborn 

322,  577 

V.  Corp.  Liverpool           238 

,240 

244 

V.  Taylor 

22 

V.  Jacks 

26 

V.  Woods 

440 

Boltz  V.  Ballman 

39 

Bowsher  i'.  Calley 

180 

Bond  v.  Fitzpatrick 

190 

Boyd  V.  Jones 

189 

V.  Ward 

180 

?;.  Ladson 

118 

Bonham  v.  Craig 

284 

V.  McConnell 

566 

Bonelli,  Goods  of 

488 

V.  McLean 

266 

Bonnet  i'.  Glattfeldt 

436 

V.  State 

62,  219,  220 

Bonney  v.  Morrill 

284a 

Boydell  v.  Drumraond 

112,  268 

Boone  ?'.  Miller 

103 

Boyden  v.  Burke 

108 

Boorman  v.  Ara.  Exp.  Co. 

38 

V.  Moore 

110,  205 

V.  Browne 

394 

Boyer  v.  Teague 

108 

V.  Johnston 

275 

278 

Boyle  V.  State 

159 

Boorne's  Case 

214 

V.  Webster 

197 

Booth  V.  Swezey 

190 

V.  Wiseman 

94,  451 

Boothby  v.  Stanley 

564 

Boynton  v.  Kellogg 

54, 461 

Boothe  v.  State 

108 

V.  Turner 

408,  427 

Borland  v.  Mercantile  M.  Ins.  Co. 

48 

r.  Willard 

40 

Borthwick  v.  Carruthers 

81 

Boys  ('.  Williams 

291 

Borum  v.  Fonts 

239 

Brace  v.  Ormond 

474 

Boston  V  State 

6 

Bracegirdle  ;;.  Bailey 

445 

V.  Weymouth 

150 

Brackett  v.  Hoitt 

513 

Boston  &  Wore.  R.  R.  Corp.  o. 

V.  Mountfort 

569a. 

Dana           93,  108,  197, 

252a 

469 

V.  Norton 

488,  489 

V.  Old  Colony  R.  R.  Corp. 

440 

Bradfield  v.  Tupper 

174 

Boston  India-Rubber  Factory  v. 

Unit 

516 

Bradford  v.  Manley 

305 

Boston  Water  Power  Co.  v.  Hanlon 

145 

Bradlee  r.  Neal 

353,  356 

Bostwick  y.  Leach 

271 

Bradley  w'  Arthur 

491 

Boswell  V.  Smith 

38 

V.  Beckett 

22 

Bosworth  V.  Cotchett 

122 

V.  Bradley                  41, 

527a,  537,  578 

V.  Crotchet 

153 

V.  Goodyear 

118 

Bothara  v.  Swingler 

95 

422 

?.'.  Holdsworth 

270 

Botsford  r.  Morehouse 

265 

V.  Ricardo 

443 

Bott  ('.  Wood 

37 

V.  Wash.,  &c.  Co. 

297 

Bottomley  v.  Forbes 

292 

Bradshaw  (;.  Bennett 

571 

V.  United  States 

53 

('.  Bradshaw 

289,  290 

V.  Wilson 

391 

401 

V.  Combs 

329,435 

XXVI 


INDEX   TO   CASES   CITED. 


Braclstreet  v.  Neptune  Ins.  Co. 
BraJy  v.  Brady 

V.  Cassidy 
Bragg  V.  Colwell 

V.  Geddes 
Brain  v.  Preece 
Brainard  v.  Buck 

Braiicli  Bank  of  Mobile  v.  Coleman 

]?raii(lao  v.  Barnett  5 

Brauder  v.  Ferriday  138 

Brandigee  r.  Hale  420 

Brandon  i\  Cabiness  171 

V.  People  329 

Brandram  r.  Whartou  112.  174 
Brandt  v.  Klein                241,  245,  561,  564 

Branger  v.  Lucy  329 

Brard  v.  Ackerman  241 

Brasiiier  v.  Jackson  73 
Brattle  St.  Cli.  (Prop'rs  of)  v.  Bul- 

lard  17,  46,  189 

Braye  Peerage  Case  20 

Bray  ley  »-.  Kelley  576 

Brazen  Nose  College  v.  Salisbury         491 

Breadalbane  Case  103,  104,  107 

Breedon  v.  Gill  260« 

Brembridge  v.  Osborne  38 

Brent  v.  State  34 

Breton  v.  Cope  38,  97,  484 

Brett  V.  Beales         137,  139,  143,  481,  570 

Brewer  i\  Knapp  38 

V.  Palmer  87,  96 

Brewster  v.  Countryman  303 

V.  Doane  115 

V.  Reel  305 

Briant  v.  Eicke  73 

Brice  v.  Bauer  192 

Brick  V.  Brick  284,  296rt 

Bridge  v.  Eggleston  53,  180,  397 

V.  Gray  112,  532 

V.  Sumner  629 

V.  Wellington  423 

Bridges  i\  Armour  354 

V.  N.  London  Ry.  Co.  49 

Bridgewater  v.  Plymouth  2.52a 

Bridge  water's  (Lord)  Case  497 

Bridgman  r.  Jennings  189 

Briggs  V.  Crick  397,  398 

V.  Georgia  117 

V.  Greenfield  357 

V.  Hervey  40,  48 

V.  Prosser  46 

V.  Wells  532 

V.  Whipple  5 

Brigham  v.  Palmer  569 

V.  Peters  114,  577 

V.  Rogers  281,  303 

V.  Smith  26 

Bright  V.  Sugg  73 

Brighton  v.  Walker  322 

Brimhall  v.  Van  Campen  43 

Brind  v.  Dale  81 

Brinkerlioof  ('.  Rerasen  272 

Brisco  V.  Lomax  139 

Brister  v.  State  214 


Secti  m 

Section 

18,  541 

Bristol  V.  Dann 

171 

440 

Bristow  V.  Cormican 

143 

286 

V.  Sequeville 

488 

581 

V.  Wright 

51,  58,  60,  63,  66 

329 

Britain  v.  Ivinnaird 

548 

116 

Britton  v.  State 

502 

197 

Britton's  Case 

226 

n      281 

Broad  v.  Pitt 

240,  247,  248 

Broad  St.  Hotel  Co.  ;•.  Weaver's  Adm'rs  5 

Brobston  v.  Cahill  578 

Brock  V.  Brock  334 

V.  Kent  182 

V.  Milligan  369,  370 

r.  Sturdivant  303 

Brockbank  v.  Anderson  423 

Brocket  v.  Foscue  26 

Brodliead  v.  Wiltse  440 

Brogy  V.  Commonwealth  163 

Bromage  v.  Prosser  34 

V.  Rice  578,  580 

Bromfield  v.  Jones  51 

Bronner  v.  Loomis  581 

Brookes  v.  Tichbourn  581a 

Brooks  V.  Barrett  75,  77 

V.  Bemiss  70 

V.  Blanshard  73 

V.  Claiborne  Co.  .    275 

V.  Clay  104 

1'.  Duggan  108 

V.  Goss  329 

V.  Lowrie  68 

V.  M'Kinney  356 

V.  Weeks  444 

V.  White  305 

Broome  i'  Wooton  533 

Brotherton  v.  Livingston  358,  573 

V.  People  159 

Brower  v.  Bowers  288 

Brown  v.  Bell  329 

V.  Bellows  443,  444,  462 

V.  Brooks  292 

V.  Brown     81,  280,  356,  395,  429,  582 

V.  Burr  us  358 

V.  Byrne  292 

r.  Commonwealth      53,  156,  165,  372 

V.  County  Corn's  86 

V.  Edson  505,  513 

V.  Fales  286 

V.  Foster  292 

V.  Getchell  316 

V.  Hicks  485,  493 

?;.  Howard  358 

V.  Jewett  212 

V.  Kenyon  109 

V.  Kimball  575 

V.  King  42 

V.  Laselle  341 

V.  Leeson  253 

V.  Lewis  329 

V.  Luehrs  461 

V.  Lynch  420 

V.  Metrop.  L.  Ins.  Co.  248 

V.  Metz  38 

V.  Mooers  372,  469 


INDEX   TO   CASES   CITED. 


XXVU 


Section 

Section 

Bt-own  V.  Payson 

245 

Bullock  V.  Koon 

87 

V.  Pinkham 

507 

V.  Wallingford 

498 

V.  Saltonstall 

200 

Bunbury  i-.  Bunbury 

239, 

210 

V.  Slater 

286,  287 

V.  Matthews 

92 

V.  State 

18,  63,  217,  21'J 

Bundy  v.  Hart 

43 

V.  Thorndike 

287,  288 

Bunker  v.  Shed 

116 

V.  Tliornton 

4!) 

Buiin  L\  VVinthrop 

288 

V.  Tliurber 

279 

Bunnell  v.  Butler 

461 

V.  Wood 

19,  254,  443 

Burbank  o.  Gould 

2(J 

V.  Woodman 

84,  97,  582 

Burchfield  v.  Moore 

505, 

568 

Brown's  Case 

218,  34:J 

Burden  r.  Pratt 

445 

Browne  v.  Gumming 

471 

Burdick  i\  Hunt 

252 

V.  Murray 

74 

Burford  v.  McCue 

38 

V.  Pliiladelphia  Bank 

5 

Burges  v.  Steer 

58 

Brownell  v.  Pacific  R.  R. 

Co.         108,  156 

Burgess  /•.  Bennett 

437 

Browning  v.  Huff 

519 

V.  Lane 

167 

177 

418 

V.  State 

13a 

V.  Merrill 

. 

356 

Brubaker  v.  Taylor 

462 

Burghardt  v.  Turner 

571 

Bruce  v.  Nicolopopulo 

38a,  94 

Burghart  v.  Angerstein 

104 

493 

V.  Priest 

55 

Burgin  r.  Chenault 

301 

V.  Slemp 

284 

Burgoyne  r.  Siiowler 

38(/ 

564 

Brucker  l\  State 

6 

Buriians  v.  Blanshau 

144 

Brundred  v.  Del  Hoyo 

492 

Burk  V.  Andis 

432 

Brune  v.  Rawlings 

678 

Burke  v.  Elliott 

92 

Brunswick  v.  McKeen 

20 

i\  Miller 

447 

532 

Brush  V.  lilanchard 

613 

V.  Ray 

305 

V.  (iibbon 

659 

Burleigh  v.  Stibbs 

97 

V.  Taggart 

521 

V.  Stott 

174 

V.  Wilkins 

484 

Burlen  r.  Shannon 

525 

Bryan  v.  Farnsworth 

605 

Burley's  Case 

229 

V.  Forsyth 

479 

Burling  v.  Paterson 

38a 

572 

V.  Harrison 

280 

Burlington  v.  Calais 

175 

V.  Wear 

484 

Burn  V.  Miller 

303 

Bryant  v.  Foot 

5 

Burnand  v.  Nerot 

507 

('.  Ilittersbush 

385 

Burnell  v.  Weld 

606 

V.  Stilwell 

87 

Burnett  v.  Phillips 

70 

Buchanan  v.  Moore 

145 

V.  Smith 

532 

V.  llucker 

514 

Burney  v.  Ball 

41 

Bucher  v.  Jarratt 

89 

Burnham  v.  Adams 

118 

Buclunan  v.  State 

310 

V.  Allen 

74 

Buck  V.  Appleton 

385 

V.  Ellis 

113 

V.  Ashbrook 

334 

V.  Mitchell 

329 

V.  Haynes 

329 

V.  Morrissey 

309 

Buckler  v.  Millerd 

284 

t'.  Stevens 

322 

Buckley  v.  Beardslee 

268 

V.  Webster 

5 

V.  Buckley 

445 

Burns  v.  Burns 

273 

Buckniinster  v.  Perry 

77,  440 

V.  Fay 

118 

Bucknam  r.  Barnum 

177 

r.  Madigan 

329 

Buell  c.  Warner 

♦                65 

Burr  V.  Harper 

677 

581 

Buford  V.  M'Luny 

V.  Sim 

41 

V.  Tucker 

5 

V.  Willson 

13a 

Buie  V.  Carver 

165 

Burr's  Trial 

251 

252 

255 

Bulkley  v.  Dayton 

427 

Burrell  v.  Nicholson 

76 

474 

V.  Devine 

286 

V.  North 

90 

V.  Landon 

68 

Burrell  Township  v.  Uncapl 

ler 

834 

V.  Smith 

572 

Burress  v.  Commonwealth 

577 

Bull  V.  Clarke 

554,  559 

Burrough  v.  Martin 

436 

V.  Loveland 

246,  452,  558 

Burroughs  v.  McLain 

329 

V.  Strong 

356 

Burt  V.  Palmer 

27 

182 

Bull's  Case 

160 

V.  Walker 

572 

Bullard  r.  Briggs 

266 

?".  Wigglesworth 

75 

440 

V.  Pearsall 

444 

Burtenshaw  ;•.  Gilbert 

273 

BuUen  (;.  Michel 

•  139,  142 

Burton  r.  Driggs 

94 

509 

561 

Bulley  V.  BuUey 

211 

V.  Griffiths 

49 

XXVlll 


INDEX  TO   CASES   CITED. 


Burton  v.  Hinde 

V.  Issitt 

V.  Piiyne 

V.  Fluinmer 
Busby  V.  Greenslate 
Bush  V.  Railing 

c.  Stowell 
Busliel  V.  Barrett 
Bushwood  V.  Pond 
Bussard  i'.  Levering 
Bustin  V.  Rogers 
Buswell  r.  Lincks 
Buswell  Trimmer  Co.  v.  Case 
Butcher  v.  Brownsville 

V.  Steuart 
Butcher  &  Aldworth's  Case 
Butchers'  Co.  v.  Jones 
Butler  r.  AUnut 

V.  Benson 

c.  Butler 

V.  Carver 

V.  Collins 

V.  Cooke 

V.  Gale 

V.  Moore 

V.  Mountgarret  40, 

V.  Price 

V.  St.  Louis  L.  Ins.  Co. 

V.  Suffolk  Glass  Co. 

V.  Tufts 

V.  Warren 

V.  Wright 
Butman  v.  Howell 
Butterfield  v.  Smith 
Buttrick  v.  Allen 

v.  Holden 
Butts  V.  Swartwood 
Buxton  V.  Cornish 
Buzard  v.  McAnulty 
Byrne  v.  Massasoit  Pack.  Co. 


c. 

Caddy  r.  Barlow 
Cadwell  v.  State 
Cady  V.  Shepherd 

V.  Walker 
Cahn,  hi  re 
Caine  i'.  Horsefall 
Cake  V.  Pottsville  Bank 
Calder  v.  Rutherford 
Caldwell  r.  Murphy 

V.  N.  J.  St.  Nav.  Co. 
Caley  v.  Phila.,  &c.  R.  R.  Co. 
Calhoun  r.  Dunning 
Calkin  v.  Evans 
Calkins  v.  State 
Call  V.  Dunning 

V.  Perkins 
Callan  v.  Lukens 
Callanan  v.  Shaw 
Calliand  v.  Vaughan 
Calmady  v.  Rowe 


Section 

Section 

391,  4U5 

Calvert  v.  Bovill 

541 

11-.^ 

V.  Flower 

563 

560 

Campbell  v.  Chace 

254 

436,  437 

c.  Dearborn 

284 

307 

Cambridge  v.  Lexington 

47,  293 

413 

Camden  v.  Doremus 

421 

174 

Camden,  &c.  R.  R.  Co.  v.  Stewart 

86,  91 

373 

Cameron  v.'  Blackman 

436 

58,72 

V.  Lightfoot 

210 

40 

Camoys  Peerage  (The) 

105 

118 

Camp  V.  Dill 

174 

101 

Canipau  r.  Dubois 

192 

55 

V.  North 

248 

5 

Campbell  r.  Chace 

254 

285 

V.  Coon 

190 

502 

V.  Dearborn 

284 

95,  422 

V.  Hastings 

177 

40 

V.  Hodgson 

281 

436 

V.  Hood 

356 

423 

V.  Phelps 

533 

95,  422 

V.  Rickards 

441 

52,  53 

V.  State                       99, 156, 

215,  440 

392 

V.  Tousey 

392 

280 

V.  Twemlow 

339 

247 

Canada  Appeal 

272 

104,  131 

Canaday  v.  Johnson 

329 

185 

Canal  Co.  v.  Railroad  Co. 

5,  490 

440,  484 

Cane  v.  Lord  Allen 

80 

532 

Cannady  v.  Lynch 

365 

421 

Cannell  v.  Curtis 

83,92 

391,  402 

V.  Phoenix  Ins.  Co. 

441 

116 

Canney's  Case 

165 

296a 

Cannon  v.  Crook 

329 

523 

V.  Jones 

402 

514 

Card  v.  Foot 

872 

532 

V.  Grinman 

273 

369 

V.  State 

63,  108 

304 

Careless  v.  Careless 

289 

171 

Carey  v.  Adkins 

185 

292 

V.  Baughn 

273 

V.  Pitt 

577 

Cariss  v.  Tattersall 

564 

Carleton  v.  Whitcher 

427 

Carlisle  v.  Burley 

392 

471 

V.  Eady                                 95, 

422,  426 

54 

V.  Garland 

180 

112,  174 

V.  Hunley 

462 

241 

Carlisle  (Mayor  of)  v.  Blamire 

211 

288 

Carlos  V.  Brook 

461 

280,  294 

Carlton  v.  Ifescox 

52 

284 

V.  Patterson 

322 

78 

V.  Vineland  Wine  Co. 

275 

102 

Carmack  v.  Commonwealth 

180 

74 

Carmalt  v.  Post 

440 

284a 

Carnarvon  r.  Villebois 

139 

535 

Carne  »•.  Litchfield 

451 

260 

V.  Nicoll 

109 

829 

Carpenter  r.  Ambroson 

434 

569,  572 

i\  BuUer 

20 

322 

V.  Carpenter 

189 

284a 

V.  Crane 

357 

49 

V.  Dame 

84 

320,  324 

I'.  Dexter 

5 

45 

V.  Groff 

168 

INDEX   TO    CASES   CITED. 


XXIX 


Section 

Section 

Carpenter  v.  Hay  ward 

4y 

Cator  V.  Stokes 

40S 

V.  IloUister 

190 

Catt  V.  Howard 

179, 

201,  439 

V.  King 

281 

Caufman  v.  Cong,  of  Cedar  Spring       145 

7).  Leonard 

101 

CaujoUe  v.  Ferric 

2S 

,  41,  104 

V.  Wall 

54,  402 

Caune  o.  Sagory 

416 

Carpenters   of  Shrewsbury   v.   Hay-         ] 

Cavan  v.  Stewart 

514 

ward 

405 

Cavelier  v.  Collins 

118 

Carpniucl  v.  Powis 

239,  240 

Cavender  o.  Guild 

5 

Carr  v.  liurdiss 

571 

Cazenove  v.  Vaiighan 

516, 

553,  554 

V.  Cornell 

334 

Cecil  Bank  v.-  Snividy 

89 

V.  Gale 

421 

Central    Brancii,   &c.    R. 

R.    Co.   V. 

V.  Miner 

84 

Biitman 

114,  192 

V.  State 

219 

Central  Bridge  Corp.  v.  Butler 

74 

Carradine  v.  Hotchkiss 

400 

Central  Bridge  Co.  v.  Lowell 

00 

Carrington  v.  Cornock 

516 

Central  Penn.  Tel.  Co.  v. 

Tliomp 

son    114 

V.  Jones 

155 

Cliabbock's  Case 

219,222 

V.  Roots 

271 

Chad  V.  Tilsed 

293 

V.  Stiinson 

322 

Cliadsey  v.  Greene 

182 

Carroll  v.  Commonwealth 

380 

Chadwick  v.  Burnley 

286 

V.  Norwood 

144 

V.  Fonner 

185 

V.  State 

108 

V.  Upton 

402 

V.  Tyler 

116,  120 

Chaffee  ('.  Baptist  M.  C. 

272 

V.  Waring 

39 

V.  Jones 

316 

Carskadden  i'.  Poorman 

104 

V.  Thomas 

420 

Carson  v.  Smith 

5 

Chamberlain  v.  Bradley 

91,  484 

Carson's  Case 

65 

V.  Carlisle 

527,  531 

Carter  v.  Bennett             197,  204 

210,  523 

V.  Gorham 

349 

V.  Boeiim 

440,  441 

V.  Willson 

451 

V.  Buchannon 

108 

Ciiamberlain's  Case 

311 

V.  Jones 

76 

Chambers  v.  Bernasconi 

109, 

115,  152, 

V.  Montgomery 

103 

491 

V.  Pearee 

408,  409 

Cliamp  V.  Commonwealth 

444 

V.  Prior 

329 

Champion  v.  Plummer 

268 

V.  Pryke 

52 

Champney's  Case 

257 

V.  Tinicum  Fishing  Co. 

45,46 

Champneys  d.  Peck 

40,  116 

V.  Wilson 

502 

Chance  v.  Hine 

423 

Cartwri^rht  v.  Cartwright 

488 

Chandler  v.  Grieves 

5 

V.  Williams            v 

426 

V.  Home 

432 

Carver  v.  Jackson                22,  23 

189,  523 

V.  Jam.  Pond  Aq.  Corp. 

51a 

V.  Tracy 

173 

V.  Le  Barron 

576,  581 

Carver,  In  re 

272 

V.  Mason 

385 

Cary  v.  Gerrish 

38 

V.  Morton 

385 

V.  Wliite 

329 

r.  Von  lloeder 

49 

Case  V.  Case 

34 

Chanoine  '•.  Fowler 

5,488 

V.  Mobile 

5 

Chapel  V.  Bull 

24 

V.  Potter 

118 

I-.  Washburn 

187 

V.  Reeve 

523 

Chapin  c.  Curtis 

523 

Casey  v.  O'Shaunessy 

103 

V.  Dobson 

284a 

Cass  V.  Bost.  &  Low.  II.  R.  Co. 

74 

Chaplain  v.  Briscoe 

569 

V.  Cameron 

409 

Chapman  v.  Beard 

196 

Cass's  Case 

220,  222 

0.  Callis 

285 

Cassidy  v.  Stenart 

6 

V.  Chapman 

103 

Cassin  r.  Delaney 

28 

V.  Chicago,  &c.  R.  R 

Co. 

202 

Casson  v.  Dade 

272 

V.  Coffin 

469 

Castellano  v.  Peillon 

375 

V.  Cowlan 

135 

Castelli  v.  Groom 

320 

V.  Davis 

319 

Castle  !'.  Bullard 

53 

V.  Emden 

81 

V.  Fox 

288,  289 

V.  Graves 

356,  357 

Castner  v.  Sliker 

440 

V.  Searle 

207,  208 

Cates  V.  Hardacre 

451 

V.  Twitchell 

182 

V.  Loftus 

38 

V.  Walton 

441 

Catlett  V.  Pacific  Ins,  Co. 

484 

Chardon  v.  Oliphant 

112 

Catlin  V.  Bell 

284 

Charkish,  The 

6 

Caton  V.  Lenox 

165 

Charles  v.  St.  L.  &  I.  M. 

R.  R. 

Co.       334 

XXX 


INDEX   TO   CASES    CITED. 


Section 

Charleston,  &c.  R.  R.  Co.  v.  Blake        ll-'. 

Charlotte  v.  Chouteau  5,  48S 

Charlton  v.  Coombes  240,  242 

I'.  La  wry  118 

Charnock  c  Dewings  432 

Charnock's  Case  379 

Charter  v.  Charter  2'.t0 

Chase  v.  Evoy  329 

V.  Hathaway  503,  513,  518 

V.  Horton                           .  109 

V.  Jewett  281 

V.  Lincoln  440 

V.  Lovering  357 

V.  Smith  120 

V.  Spencer  118 

Chasemore  v.  Richards  4(5 

Chatfield  v.  Fryer  138 

V.  Latlirop  423 

Chattaes  v.  Raitt  562 

Chaurand  v.  Angerstein  280,  440 

Cheetham  v.  Ward  427 

Chelmsford  Co.  v.  Demarest  181 

Chelsea  Water  Works  (Gov.  &c.  of) 

V.  Cowper  21,  570 

Chemical  El.  L.  Co.  v.  Howard  278 

Chenango,  Supervisors  of,  v.  Birdsall  356 

Chenango  Bridge  Corp.  v.  Lewis  115 

Cherry  v.  Boyd  145 

L-."Slade  301 

Chesley  v.  Frost  568 

Chess  V.  Chess  163,  165,  166,  168 

Chester  Emery  Co.  v.  Lucas  290 

Cheyne  v.  Koops  395 

Cheyney's  Case  289 

Chicago  V.  O'Brennan  329 

V.  Powers  51« 

Chicago  B.  &  Q.  R.  R.  Co.  v.  Wilson    147 

Chicago  W.  1).  R.  R.  Co.  v.  Becker      108 

Chickering  v.  Brooks  440 

Child  V.  Ciiamberlain  358 

V.  Grace  199 

i\  Kingsbury  145 

Childrens  v.  Saxby  348 

Childress  v.  Cutter  484,  493,  498 

Chiles,  In  re  329 

Chinmark's  Estate  273 

Chippendale  v.  Thurston  174 

Chirac  v.  Reinicker  73,  237,  245 

Chitty  V.  Dendy  6 

Choate  v.  Burnham  293 

Christian  r.  Coombe  212 

V.  Williams  317 

Christie  v.  Bishop  178 

("hubb  V.  Salomons  251 

Chumasero  v.  Gilbert  5 

Church  r.  Howard  329 

V.  Hubbart          4,  5,  14,  487,  488,  514 

V.  Shelton  171,  195 

Churchill  I'.  Holt  532 

V.  Snter  379,  385 

V.  Wilkins  58 

Churchman  v.  Smith  118 

Cilley  V.  'Penny  303 

Cincinnati  c.  White  207 


Section 
Cincinnati  Ham.  &  Ind.  R.  R.  Co.  v. 

Clifford  5 
Cist  (.'.  Zeigler  531 
Citizens'  Bank  v.  Nantucket  Steam- 
boat Co.                        •  426 
City  Bank  v.  Adams  281 
City  Bank  of  Baltimore  v.  Bateman   113, 
329,  332,  452 
City  Council  n.  King  331,  332 
City  of  Berne  v.  Bank  of  England  4 
City  of  London  v.  Gierke  139 
City  of  Washington,  The  440 
Clatlin  V.  Carpenter  271 
Clageti  V.  Phillips  240a 
Clancey's  Case  373 
Clanton  r.  Barnes  489 
Clap  V.  IiigersoU  121 
Clapp  r.  Balch  73 
V.  Fullerton  440 
V.  Herrick  523,  532 
V.  Mandeville  389 
V.  Tirrell  26 
Clarges  v.  Sherwin  539 
Clark  V.  Alexander  42,  174 
V.  Bigelow  440 
V.  Bond  469 
V.  Boston  &  Albany  R.  R.  Co.         49 
V.  Bradstreet  13u 
V.  Carter  426 
V.  Clark  290 
V.  Eckstein  564 
V.  Faunce  17 
V.  Fletcher  563 
V.  Gifibrd  284 
V.  Gill  310 
V.  Gleason  112 
V.  Hall  375 
V.  Hopkins  39 
V.  Houghan  191 
V.  Huffaker  209 
V.  Irvin  537 
V.  Lucas  394,  397 
V.  Morrison  1"4 
V.  Mun\an  301 
V.  Rhodes  681 
V.  Richards  245 
V.  Saunderson  575 
V.  Trinity  Church  4»3 
V.  Van  Riemsdyk  260,  351 
V.  Vorce  166,  437 
i;.  Wilmot  116 
Clark's  Case  65 
Ex'rs  V.  Carrington  180 
Ex'rs  ;;.  Van  Riemsdyk  174, 178,  257 
Lessee  v.  Hall  375,  37r) 
Clarke  v.  Bank  of  Mississippi  489 
V.  Barnwell  305 
V.  Bradshaw  112 
V.  Canfield  41 
V.  Clarke                            196,  204,  207 
V.  Courtney                         84,  142,  575 
V.  Gannon  408.  430 
r.  Gray  66,  69 
V.  Lyman  40 


INDEX   TO   CASES    CITED. 


XXXI 


Section 

Section 

Clarke  v.  Magruder 

lit) 

Coblcigh  V.  Young 

20 

V.  Robinson 

551 

Cochran  v.  Almack 

329 

V.  Saffery 

485 

V.  Amnion 

358 

V.  Spence 

81,  348 

I'.  Langmaid 

329 

V.  Wiiite 

180 

Coeke  i:  Jennor 

533 

V.  Wyburn 

361 

Cockle  V.  London,  &c.  Ry.  Co 

49 

Clarksoii  >•■  Woodhouse 

139,  141, 143 

Cocks  V.  Purday 

487 

Clary  v.  Ciary 

440 

Cockshot  V.  Bennett 

172 

u.  Grimes 

189 

Codman  v.  Caldwell 

117 

Clawson  v.  Eichbaum 

38 

Coe  V.  Hutton 

197 

V  Riley 

329 

Gofer  V.  Tliermond 

41 

Cylaxton  V.  Swift 

533 

Coffin  V.  Anderson 

469 

Clay  V.  Kirkland 

392 

V.  Bucknam 

121 

V.  Langslow 

181 

V.  Jones 

254,  3:!8 

V.  Stephenson 

320 

V.  Vincent 

437 

V.  Williams 

241 

Coggswell  V.  Dolliver 

118 

Clayes  c.  Ferris 

469 

Coghlan  v.  Williamson 

572 

Clayton  v.  Gregson 

280 

Cohen  V.  Templar 

246 

V   Greshara 

550 

Coit  V.  Millikin 

4,479 

V.  Siebert 

581 

V.  Starkweather 

288 

V.  State 

186 

V.  Tracy 

112.  174 

v.  Warden 

107 

Coker  v.  Guy 

275 

Clealand  r.  Haey 

164,  165 

Colbern's  Case 

340 

Cleave  f.  Jones 

237 

—            333 

Cleavehuid  v.  Flagg 

301 

Colclough  r.  Smith 

301 

Cleaves  v.  Foss 

269 

Cole  V.  Anderson 

118 

V.  Lord 

68 

V.  Cole 

192 

Cleavland  v.  Burton 

200 

V.  Hall 

322 

Clegg  V.  Levy 

487 

V.  Hawkins 

316 

Clem  V.  State 

469 

V.  Howe 

284 

Clement  v.  Brooks 

457 

V.  Jessup 

437 

V  Durgin 

302,  304 

V.  Shurtleff 

329 

Clementi  v.  Golding 

5 

Cole's  Lessee  v.  Cole 

376 

Clements  v.  Hunt 

103 

Coleman  v.  Commonwealth 

49,  365,  496 

V.  Marston 

329,  334 

V.  Dobbins 

480 

Clementson  v.  Gandy 

288 

V.  Fobes 

174 

Gierke  v.  Isted 

69 

V.  People 

53 

Clermont  v.  TuUidge 

581 

V.  Wolcott 

349 

Cleveland,  Col.  C.  &  Ind 

R.  R.  Co. 

Coles  V.  Trecothick 

269 

V.  Newell 

102 

Colette's  Estate 

290 

Cleveland,  &c.  R.  R.  Co. 

V.  Perkins        84 

Colledge  v.  Horn 

186 

Cleveland,  &c.  R.  R.  Co. 

V.  Wynant     51rt 

Collender  v.  Dunsmore 

282 

Cleverly  v.  Cleverly 

286,  287 

Collett  V.  Lord  Keith 

193 

Clifford  V.  Burton 

185 

Collier  v.  Nokes 

192 

V.  Hunter 

445 

V.  Simpson 

440 

V.  Parker 

564 

V.  State 

161 

V.  Turrill 

285,  304 

Colling  V.  Tremeck 

84 

Clifton  V.  United  States 

37 

Collins  !'.  Bayntun 

571 

Clinan  v.  Cooke 

269 

V.  Blantern 

284 

Cline  V.  Little 

427 

V.  Carnegie 

195 

Clinton  v.  Hooper 

296 

V.  Commonwealth 

163 

Clipper  (The)  v.  Logan 

440 

u.  Godefroy 

310 

Close  V.  Olney 

451 

V.  Lemasters 

437 

Clothier  v.  Chapman 

52,  137,  145 

r.  Mack 

334 

Clough  V.  Bowman 

290 

V.  Mathews 

502 

V.  State 

49,  436 

V.  Maule 

84 

Cloutman  v.  Tunison 

495 

V.  McCrummen 

420 

Cluff  I'.  Mat.  Benefit  Life  Ins.  Co.          43 

V.  Richart 

322 

CluGTgage  V.  Swan 

116,  120 

V.  Waters 

102 

Clunnes  v.  Pezzey 

37 

Colman  v.  Anderson 

20,46 

Coates  V.  Birch 

241,  245 

V.  Southwick 

101 

Cobbett  V.  Hudson 

432 

Colman,  In  re 

272 

V.  Kilminster 

581 

Colpoys  V.  Colpoys 

288 

Coble  V.  State 

372 

Colsell  V.  Budd 

39 

XXXll 


INDEX  TO   CASES   CITED. 


Section 
Colson  IK  Bonzey  484,  494 

Colt  V.  McConnell  241 

V.  Miller  60 

Columbia  (Bank  of)  v.  Magruder         423 
Columbia  Ins.  Co.  v.  Lawrence  2 

Columbian  Man.  Co.  v.  Dutch       353,  356 
Columbus,  &c.  Co.  v.  Semmes  51fi 

Colvin  ('.  Procurator-General  30 

V.  Warford  46 

Combe  v.  Corp.  of  London  240a 

V.  Pitt  210 

Combs  ?'.  Hodge  171 

V.  Winchester  52,  449 

Commercial  Bank  of  Albany  v. 

Hughes  387 

Commercial  Bank  of  Buffalo  v.  Kort- 

wright  568n 

Commercial  Bank  of  Natchez  v.  King  207 
Commonwealth  v.  Abbott  49,  55/) 


r.  Ackert 
V.  Allen 
V.  Andrews 
V.  Anthes 
17.  Babcock 
V.  Bachelor 
V.  Bagley 
V.  Baird 
V.  Beckley 
V.  Bigelow 
V.  Blood 
V.  Bolkora 
V.  Bonner 
V.  Bosworth 
V.  Boynton 
V.  Brayman 
V.  Briant 
V.  Briggs 
V.  Britton 
V.  Brown 
V.  Brownell 
V-  Bullard 
I'.  Burk 
V.  Butler 
V.  Buzzell 
V.  Byron 
V.  Call 
V.  Campbell 
V.  Carey 
V.  Casey 
V.  Castles 
V.  Chaney 
V.  Chase 
V.  Choate 
V.  Clark 
V.  Coe 
V.  Conrad 
V.  Corkin 
V.  Costley 
V.  Cotton 
V.  Crocker 
V.  Crowley 
V.  Cuffee 
V.  CuUen 
V.  Culver 


221 

581 

440 

49 

79 

369,  370 

34 

331 

65 

97 

19,82 

513 

329 

381 

382 

440 

44,48 

341 

158 

216,  440 

51a 

284 

28 

28 

52,  371,  449 

450 

190 

53 

156,  577,  580 

1616 

6736 

435 

484 

81,  440 

225 

49,  53,  677,  581 

28 

53 

13a 

53 

199 

5 

199,  219,  220 

219,  221 

219 


Commonwealth  v.  Cunningham 
V-  Curran 
V.  Curtis 
V.  Dam 
V.  Dame 
V.  Damon 
V.  Dana 
V.  Davidson 
V.  Dean 
V.  Densmore 
V.  Desmond 
V.  Donahoe 
V.  Dorsey 
V.  Downing 
V.  Drake 
V.  Dudley 
V.  Eagan 
V.  Eastman 


382 


197,  108, 


Eberle 

Eddy 

Elisha 

Emery 

Evans 

Falvey 

Feely 

Fenno 

Ferry 

Flaherty 

Ford 

Fox 
,  Frost 

Galavan 

Galligan 
,  Garth 
.  Gibson 
.  Goodwin 
.  Gorham 
.  Gormley 

Gray 

Green 
.  Griffin 
.  Hackett 
.  Hall 
.  Haney 
.  Hanlon 

Hargesheimer 
.  Harman 
.  Harvey 
.  Harwood 
.  Haskell 
.  Hawkins 
.  Hayes 
.  Heath 
.  HefEron 
.  Hill 
.  Hills 
.  Hogan 
.  Holmes 
.  Hopkins 
.  Horton 
.  Howe 
.  Hudson 

Huggeford 


Section 

440 

79 

53 

51a 

373 

63 

264a 

563 

79 

199 

6 

462 

440 

,  501,  613 

229,  247 

265 

28 

358,  363. 

446,  581 

233 

81 

537 

91,  561 

637 

65 

316 

51a 

51a 

28 

372,  436,  437,  513 

437 

414 

435 

200 

49 

158 

13o,  87 

372,  375 

28 

49 

375,  376,  421,  605 

254 

108 

53 

,  159,  161 

,  229,  376 

430 

220,  221 

197 

108 

61n 

18 

44,  48,  254,  381,  440 

81 

146,  493 

,  51a,  366 

370 

33 

381 

28 

53,  537 

223,  229 

52,  444 

316 


158, 
222, 


13,  Ic 


144, 

28, 


INDEX   TO   CASES    CITED. 


XXXlll 


Section 

Section 

Commonwealth  v.  Hutchinson              307 

Commonwealth  v.  Pease 

284 

I!.  Iiigraham 

m) 

V.  Peckham 

5 

j;.  Jackson 

51«,  53 

V.  Pejepscot  Proprietors 

23 

V.  James 

108 

V.  Phillips 

501 

V.  Jardine 

254 

t;.  Pierce 

65 

V.  Jeflfries 

40,  197,  581 

V.  Piper 

52,219 

V.  Jeffs 

437 

t;.  Pitsinger 

218 

V.  Jeffls 

6 

V.  Pollard 

257 

V.  Jenkins 

462,  469 

t'.  Pope 

82,  440 

V.  Kane 

92 

V.  Porter 

49 

V.  Keefe 

65 

V.  Pratt 

451 

V.  Kendall 

54 

V.  Preece 

219 

v-  Kenney 

43,  197,  199 

V.  Price 

451 

V.  Kimball 

79 

V.  Purdy 

65 

V.  King 

5,  158,  497 

V.  Quin 

8t$ 

V.  Knapp 

200,  229,  231,  379 

V.  Regan 

458 

V.  Kneeland 

5 

V.  Keid 

342 

f.  Lahy 

79 

V.  Kichards 

165 

V.  Lavery 

65 

V.  Ricliardsoa 

480 

V.  Lawler 

461 

V.  Koark 

609 

V.  Leo 

79 

V.  Robbins 

341 

V.  Lindsey 

28 

V.  Roberts 

158 

V.  Littlejohn 

484 

V.  Robinson 

53,  407 

V.  Locke 

79 

V.  Rogers 

373 

17.  Luscomb 

65 

V.  Ryan 

556 

V.  Lyden 

447,  450 

V.  Sacket 

456 

V.  Lynes 

367 

V.  Samuel 

78 

V.  JManson 

335,  363 

V.  Sanborn 

215 

V.  Marsh 

330,  334,  353, 

V.  Schaffner 

447,  462 

357,  363 

V.  Scott 

53 

V.  Marzynski 

5 

V.  Sego 

220,  222 

V.  Mason 

455 

V.  Shaw 

449, 

451,456 

V.  Maxwell 

78 

V.  Shepherd 

28, 

253,  344 

V.  McCarthy 

53 

V.  Slocum 

275 

V.  McCue 

92 

V.  Smith                    219, 

220,  252,  370 

V.  McDermott 

233 

V.  Snell 

362 

V.  McDonald 

460 

V.  Soper 

70 

V.  McKie 

18,74 

V.  Stevenson 

44,  104 

V.  McGorty 

34- 

V.  Stow 

86 

V.  McGrath 

35 

V.  Sturtivant 

440 

V.  McGulre 

372 

V   Sullivan 

457 

V.  McLaughlin 

65 

V.  Talbot 

34 

V.  McPike 

108,  158 

V.  Tarr 

217 

V.  Mead 

252 

V.  Taylor 

219,  223 

V.  Minor 

372 

V.  Thompson 

283 

V.  Mitchell 

220 

V.  Tlirasher 

53 

V.  Montgomery 

108 

V.  Thurlow 

79 

V.  Moore 

65 

V.  Thyng 

444 

V.  Moran 

329 

V.  Tilden 

252 

V.  Morey 

210,  223 

V.  ToUiver 

451,  462 

V.  Morgan          280, 

329,  331,  451,  457 

V.  Towle 

79 

V.  Morrell 

90,  445 

V.  Trider 

451 

V.  Mosler 

222 

V.  Tuckerman 

229 

V.  Moulton 

412 

V.  Tuey 

74 

V.  Mullen 

329,  451 

V.  Turner 

53 

V.  Munsey 

28 

V.  Vass 

158,  159 

V.  Murphy 

54,  461 

V.  Waite 

414,  423 

V.  Murray 

160,  449 

V.  Walker 

37, 

199,  233 

V.  Nefus 

581 

V.  Webster        13a,  18,  37,  54,  65,  576 

V.  Nichols 

451 

V.  Welch 

79,  82,  284 

V.  Nnrcross 

86 

V.  Wentz 

28 

V.  O'Brien 

440 

V.  White 

53,  252a 

V.  Parmenter 

65 

I'.  Whittaker 

34 

V.  Paul! 

403 

i\  Williams 

49, 

160,  440 

VOL.  I.—C 

XXXIV 


INDEX   TO   CASES   CITED. 


Section 

Commonwealth  v.  Wilson 

440,  46y,  4^7 

V.  Woelper 

493 

V.  Wood 

382 

V.  Wright 

451 

V.  York 

18 

Comparet  v.  Jernegan 

489 

Compton  V.  Wilder 

317 

Comstock  V.  Carnley 

88 

V.  Hadlyme       74,  75,  76 

,  77,  108,  409 

V.  Paie 

392,  430 

V.  Kayford 

390 

;;.  Smitii 

61a 

Condit  V.  Blackwell 

5 

Conley  v.  Meeker 

461 

Conn  V.  Penn 

145 

Connecticut  v.  Bradish 

331 

Connecticut  Mut.    Life  In^ 

Co.    V. 

Eilis 

440 

Connecticut  River  R.  R.  Co. 

V.  Clapp     75 

Connors  v.  People 

451 

Conover  v.  Bell 

452 

Conrad  v.  Griffe}'^ 

462,  469 

Continental  Nat.  Bank  v.  McGeoch          5 

Converse  v.  Hobbs 

436 

V.  Wales 

290 

Conway  v.  State 

379,  444 

Conyers  v.  Jackson 

71 

Cood  V.  Cood 

493 

Cook  V.  Ashmead 

117 

V.  Barr 

171 

17.  Castner 

252a 

27  Cook 

41 

V.  Grange 

334 

V.  Parsons 

272 

V.  Remington 

849 

17.  Stearns 

270 

V.  Stout 

163 

V.  Totton 

21 

V.  Union  R.  R.  Co. 

49 

V   Wood 

84 

Cooke  V.  Booth 

293 

r.  Curtis 

469 

V.  Lamotte 

38n 

17.  Loxley 

207 

V.  Maxwell 

251,  375 

r.  Soltau 

46 

V.  Wilson 

5 

V.  Woodrow  572,  575 

Cooley  V.  Norton  113,  450 

Coolidge  V.  Learned  17 

V.  New  York  Firemen's  Ins.  Co.    484 

Coombs  V.  Coether  139,  484 

Coon  V.  Swan  239 

V.  The  State  215 

Coons  ';.  Renick  91 

Cooper  V.  Bockett  664,  580 

V.  Dedrick  41 

■    V.  Gibbons  37 

V.  Cranberry  40 

V  Marsden  572 
V.  Morrell  118 

V  Mo  wry  207 

V  Reaney  48 

V  Sheplierd  633 


Section 

Cooper  V.  Slade  36 

V.  Smith  201,  268 

V.  Wakley  7G 

V.  Whitehouse  73 

Coot  V.  Berty  54 

Coote  V.  Boyd  296 

Cooth  V.  Jackson  260 

Coots  V.  Farnsworth  275 
Cope  17.  Cope                              28,  253,  344 

Copeland  v.  Watts  246 

Copes  V.  Pearce  103 

Copland  v.  Toulmin  171 

Copp  V.  Uphani  452 

Copperman  v.  People  53 

Corbett  et  al.  v.  Barnes  633 

V.  Corbett  75 

V.  Gibson  319 

Corbin  v.  Adams  113 

V.  Jackson  658 

Corbishley's  Trusts,  In  re  41 

Corey  v.  Janes  165 

Corinth  i\  Lincoln  108 

Cork  V.  Brown  462 

Cornelius  v.  State  108 

Cornell  v.  Green  165 

V.  Vanartsdalen  338 

Cornett  v.  Williams  84 

Corning  v.  Walker  329 

Cornisli  v.  Pugh  341 

V.  Searell  207 

Cornville  v.  Brigliton  108 

Cornwall  v.  Richardson  55 

Corn  well  v.  Isham  175,  333 

Corporations  (tlie  Case  of)  40 

Corps  V.  Robinson  197 

Corse  V.  Patterson  334 

V.  Peck  275 

Corsen  v.  Dubois  246,  558 

Corser  v.  Paul  197 

Cort  V.  Birkbeck  139 

Corwein  v.  Hames  175,  331 

Corwin,  In  re  310 

Cory  V.  Bretton  192 

Cossens,  Ex  parte  451 

V.  Cossens  23,  2t> 

Cossham  v.  Goldney  395 
Costello  V.  Crowell                  436,  437,  581 

Coster  17.  Baring  559 

Costigan  v   Lunt  163,  165 
I'.  Mohawk  and  Hudson  R.  R.  Co.  74 

Cotes  V.  Davis  185 

Cottle  V.  Payne  39 

Cotton  17.  James  76 

V.  Liittrell  358,  361 

V.  Witt  310 

Cottrill  V.  Myrick  302,  440 

Couch  V.  Meeker  283,  284 

Coughlin  V.  Haeussler  166 

Coulson  V.  Walton  564 

Coulter  V.  Am.  Ex.  Co.  443,  444 

Counden  v.  Clarke  289 

County  V.  Leidy  348 

Courteen  v.  Touse  43o 

Courtenay  v.  Hoskins  554 


Section 

Oovcney  i'.  Tannahill  '■^'^^ 

Covington,  &c.  K..K.  Co.  v.  Ingles        113 

Covington  Drawbridge  Co.  v.  Shepherd    5 

Cowan  V.  Cooper  304 

V.  Kinney  174,  177 

Coward  v.  Clanton  171 

Cowden  v.  Reynolds  44;3 

Cowley  V.  Knapp  272 

V.  People  82 

Cowling  V.  Ely  179 

Covvper  V.  Earl  Cowper  37 

Cox  V.  Allinghara  518 

V.  Brain  205 

V.  Commonwealth  381 

V.  Copping  474 

V.  Couveless  5^3 

V.  Davis  572 

V.  Eayres  444 

V.  England  86 

i;.  Hill  452 

V.  Jones  505 

V.  Morrow  5,  43 

V.  Painter  73 

V.  Parry  27 

V.  People  '       220 

V.  Williams  385 

Coxon  V.  Lyon  61 

Coye  V.  Leach  30 

Coyle  V.  Cole  84 

Cozzens  v.  Higgins  5,  82 

Crabtree  v.  Clark  564 

Crafts  V.  Hibbard  301 

Cragin  i'.  Carleton  527a 

Craib  )'.  D'Aeth  173 

Craig  V.  Brown  605,  506 

V.  Craig  409 

V.  Cundell  392 

V.  Proctor  79 

V.  State  461 

Craigin  v.  Lambkin  489 

Cramer  v.  Burlington  37 

V.  CuUinane  445 

V.  Shriner  90 

Crandall  v.  People  329 

V.  Slaid  347 

Crane  v.  Barkdoll  241 

V.  Crane  329 

V.  Elizabeth  284a 

V  Marshall  •  109,  570 

V.  Morris  23,  33 

Crary  v.  Sprague  163 

Craven  v.  Shaird  118 

Craven's  Case  65 

Crawford  v.  Abraham  310 

V.  Elliott  41 

V.  Morrell  58 

V.  Spencer  281 

Cray  v.  Halls  201 

Crease  v.  Barrett     103,  128,  130,  136,  139, 

153,  166,  189,  584 

Creed,  In  re  41 

Creevy  v.  Carr  445 

Crenshaw  v.  Davenport  51a 

Crew  V.  Blackburn  475 


\SES    CITED. 

1 

XXXV 

Section 

Crew  V-  Saunders 

475 

Cribbs  v.  Adams 

43 

Criddle  v.  Criddle 

190 

Cridland,  Ex  parte 

5 

Crimmins  v.  Crinmiins 

329,  334 

Crippen  v.  Dexter 

469,  550 

Crisp  V.  Platel 

240 

Crispin  v.  Doglioni 

94,  546 

V.  Williamson 

60 

Critchlow  v.  Parry 

196 

Crocker  v.  Agenbroad 

443 

V.  Crocker 

289 

Crofton  V.  Poole 

195 

Crofts  V.  Marshall 

280 

Cromack  c.  Heathcote 

240,  241 

Crompton  v.  Butler 

2(J0« 

Cronk  v.  Frith 

572 

Crookham  v.  State 

108,  156 

Crosby  v.  Percy 

101,  572 

V.  Wadsworth 

271 

Grose  v.  Rutledge 

334 

Cross  V.  Bell 

37 

V.  Cross 

28,  334,  442,  443 

V.  Kaye 

92,  195 

V.  Mill  Co. 

485,  498 

V.  Wilkins 

52 

Croudson  r.  Leonard 

6,541 

Croughton  v.  Blake 

142 

Grouse  v.  Holman 

41 

Crowe  V.  Colbeth 

329 

Crowley  v.  Page 

52,  81,  449,  402 

Crowninshield  u.  Crowninshield  74,  75,  81 

Crowninshield's  Case  111 

Growtlier  v.  Hopwood  373 

Crusell's  Case  13 

Cubbison  v.  McCreary  369 

Cuddy  V.  Brown  103 

Cudlip  V.  Bundle  60 

Cuff  V.  Penn  304 

Culkin's  Case  65 

Cullen's  Case  451 

Cullmans  r.  Lindsay  284 

Culver  V.  Dwight  440 

Cumberland  Bank  v.  Hall  564 

Cumberland  (Duke  of)  v.  Graves  41 

Cuming  v.  Robins  329 

Cummin  v.  Smith  195 

Gumming  v.  French  192 

Cummings  v.  Arnold  302,  30.3,  -304 

V.  Stone  6 

Cundell  V.  Pratt  454,  456,  459 

Gunliffe  v.  Sefton  572,  574,  575 

Gunnineham  v.  Commonwealth  217 

V.  Milner  279 

V.  Otis  320 

V.  Wrenn  296a 

Cupper  V.  Newark  356 

Curran  v.  Pullman  Pal.  Car  Go.  114 

Curren  17.  Crawford  117 

Gurrie  v.  Child  672 

Curry  v.  Lyles  26 

V.  Raymond  91 

Curtis  u.  Aaronson  109,  145 

V.  Belknap  5734 


XXXVl 


INDEX  t:o  cases  cited. 


Section 

Section 

Curtis  V.  Central  Railroad 

323 

David  V.  Moore 

348 

V.  Graham 

358,  389 

Davidson  v.  Bodley 

303 

V.  Groat 

533 

V  Cooper 

568 

V.  Herrick 

40 

V   Harrisson 

174 

V.  Marsh 

5 

V.  Peticolas 

6 

V.  Rickards 

38 

Davie  v.  Briggs 

41 

V.  Wlieeler 

74 

V.  Jones 

437 

Curtiss  v.  Strong 

369,  370 

Davies  v.  Davies 

408,  463 

Curzon  v.  Lomax 

130,  139 

V.  Edwards 

112,  174 

Cushing  V.  Billings 

74 

V.  Humphreys 

115,  152 

V.  Nantasket  Beach  R.  R 

Co.        480 

V.  Lewis 

137 

V.  Rice 

284 

V.  Lowndes 

105,  131 

Cushman  v.  Loker 

375,  420 

V.  Morgan          133, 

135,  154, 

333,  395 

Cussons  V.  Skinner 

569,  569n 

V.  Pierce 

109, 

147,  189 

Cutbush  V.  Gilbert 

84,  116,  120 

V.  Ridge 

176 

Cuthbert  v.  Purrier 

41 

V.  Waters 

241 

Cutler  V.  Howe 

52 

Davis  V.  Allen 

437 

V.  Nevvlin 

187 

V.  Barr 

421 

V.  Pope 

271 

V.  Byrd 

432 

V.  Wright 

5,43 

V.  Best 

5 

Cuts  V.  Pickering 

245 

V.  Campbell 

109 

Cutter  V.  Howe 

52 

V.  Carlisle 

564 

V.  Powell 

292 

V.  Dale 

445 

Cutts  V.  United  States 

566 

V.  Din  woody 

334, 

340,  341 

Cuyler  v.  Ferrill 

5 

V.  Dodd 

558 

V.  McCartney 

189 

V.  Fuller 

V.  Fulton  Bank 

V.  Glenn 

115,  130 
5 

280 

D. 

V.  Gray 
V.  Hare 

91 

90 

Da  Costa  v.  Jones 

253 

V.  Jenney 

564 

Daggett  V.  Johnson 

275 

V.  Lloyd 

115,  147 

V.  Shaw 

109 

V.  Lowndes 

539 

Daily  V.  N.  Y.  &  N.  H.  R.  R. 

156 

V.  Mason 

75,  440 

Dainese  v.  Hale 

5 

V.  McEnaney 

6 

Dale  V.  Livingston 

241 

V.  Rainsford 

301 

Dalgleish  v.  Hodgson 

541 

V.  Robertson 

269 

Dalison  v.  Stark 

90 

V.  Roby 

449 

Dairymple  v.  Dalrymple 

488 

V.  Salisbury 

349 

Dalston  v.  Coatsworth 

37 

V.  Sanford 

118 

Dan  V.  Brown                    172, 

174,  176,  273 

i;.  Shields 

268 

Dana  v.  Fiedler 

292 

V.  Spooner 

397,  568 

V.  Kemble 

40 

V.  State               164, 

165,  22C 

,  231,  440 

V.  Tucker 

252a 

V.  The  Liberty  &  Camden  G 

ravel 

Danforth  v.  Mclntyre 

302 

Road  Co. 

296a 

Daniel  y  Daniel 

239 

V.  Wood 

99,  524 

V.  North 

17 

Davis  &  Carter's  Case 

374 

V.  Pitt 

182 

Davis  Sewing  M.  Co.  v. 

Stone 

277 

V.  Wilkin 

139,  142,  145 

Davison  v.  Bloomer 

572 

Daniels  v.  Conrad 

449 

Davlin  v.  Hill 

283 

V.  Foster 

329 

Dawes  v.  Shedd 

187 

V.  Hudson  River  Fire  Ins 

,.  Co.        441 

Dawkins  v.  Smith  wick 

5 

V.  Potter 

111,  176 

Dawson  v.  Coles 

173 

V.  Woonsocket 

192 

V.  Dawson 

6 

Danville,  &c.  Plank  Road  Co. 

V.  State      5 

V.  Massey 

260 

Darby  v.  Ouseley 

201,  440 

V.  Wait 

■     329 

Darling  v.  Westmoreland 

61« 

Day  V.  Cooley 

444 

I^arrah  v.  Watson 

606 

V.  Floyd 

550 

Dartmouth  College  v.  Woodward         331 

V.  Moore 

613 

Dartmouth  (Countess)  t\  Roberts     .     189 

V.  Trig 

301 

Dartmouth  (Lady)  v.  Roberts                512 

Dayrell  v.  Bridge 

510 

Davenbagh  v.  M'Kinnie 

559 

De  Armond  v.  Neasmith 

115 

Davenport  v.  Commonwealtl 

I                  49 

Deacle  v.  Hancock 

133,  135 

V.  Freeman 

385 

Deacon's  Case 

256 

INDEX   TO   CASES   CITED. 


XXXVll 


Section 

Deady  v.  Harrison  180 

Dean  v.  Kniglit  444 

V.  State  28 

Dean,  &c.  of  P:iy  v.  Caldecott  150 

Dearborn  v.  Cross  302,  304 

Deas  I'.  Darby  118 

De  Bode's  Case  109 

De  Cosse  Brissao  v.  Rathbone  546 

Deck  V.  Jotinson  185 

Decker,  Ej-  j)aiie  568a 

Deering  v.  Sawtel  385 

De  la  Chauinette  v.  Bank  of  England     81 

Delacroix  v.  Bulkley  303 

Delafield  v.  Freeman  392 

V.  Hand  503 

Deland  u.  Dixon  Nat.  Bank  13 

Delano  v.  Bartlett  74 

De  Lavallette  v.  Wendt  282 

Delaware  County  v.  Diebold  Safe  Co.  171 

Delesline  v.  Greenland  27,  184 

Dellone  v.  Relimer  '  387 

Deloach  v.  Worke  510 

Delogny  v.  Kentoul  192 

Delphi  V.  Lowery  51a 

De  Meli  v.  Be  Meli  334 

Dement,  Ex  parte  310 

Den  V.  Applegate  38a 

V.  Clark  556 

V.  Downam  437 

V.  Herring  145 

V.  Johnson  335,  341 

V.  McAllister  84 

V.  Oliver  208 

V.  Page  301 

V.  Southard  145 

V.  Vreelandt  503 

Denison  v.  Denison  329 

Denmead  v.  Maack  5 

Denn  ik  Cornell  23 

V.  Fulford  507 

V.  McAllister  84 

V.  Spray  139 

V.  White  185,  341 

Dennett  v.  Crocker  87 

V.  Dow  443 

Dennie  v.  Williams  171 

Denning  v.  Roome  484 

Dennis  v.  Codrington  237 

Dennis's  Case  224,  537 

Denslow  v.  Fowler  559 

Denton  i:  State  102 

Denver,  &c.  R.  R.  Co.  v.  Glasscot  52 

Depeau  v.  Hyams  416 

Depue  V.  Place  581 

Derby  v.  Gallup  440 

V.  Rounds  174 

De  Rosne  v.  Fairlie  389 

De  Rutzen  (Baron)  v.  Farr    150,  154,  584 

Desborough  v.  Rawlins  242,  244 

Descadillas  v.  Harris  416 

Deshon  v.  Merchants'  Ins.  Co.  469 

Despau  v.  Swindler  6 

De  Symonds  v.  De  la  Cour  394 

Devlin  (;.  Commonwealth  41 


Section 

Devonsiiire  (D.  of)  v.  Lodge  293 

Devries  v.  Phillips  451 

Dewdney  c.  Palmer  421 

Dewees  v.  Colorado  Co.  6 

Dewey  v.  Dewey  38a,  272,  572 

V.  Field  207 

De  Whelpdale  v.  Milburn  189,  210 

Dewhurst's  Case  228 

De  Witt  V.  Berry  275,  292 

De  Wolf  V.  Strader  239 

Dexter  v.  Booth  118,  254 

V.  Hall  440 

Deybel's  Case  6 

Dezell  V.  Odell  207 

Diana,  The  488 

Dicas  V.  Lawson  319 

Dickenson  v.  Dickenson  272 

V.  Fitchburg  440 

Dickerman  v.  Graves  344 

Dickinson  v.  Clarke  180 

V.  Commissioner  281 

V.  Coward  195 

V.  Dickinson  192,  384 

V.  McCraw  519 

V.  Prentice  399 

V.  Shee  445 

V.  Valpy  207 

Dickson  v.  Evans  78 

Didsbury  v.  Thomas  145 

Diet  V.  Mo.  Pac.  R.  R.  Co.  51a 

Digby  V.  People  158 

V.  Stedman  116 

V.  Steel  97 

Dilleber  v.  Home  Life  Ins.  Co.  440 

Dilley  v.  Love  329 

Dillon  V.  Dillon  386,  440/^ 

V.  Harris  288 

Dillon's  Case  220 

Dills  V.  State  310 

Dimick  v.  Downs  461 

Dimsdale  v.  Dimsdale  38a 

Dinkins  v.  Samuel  35 

Di  Sora  (Duchess)  v.  Phillips  514 

D'Israeli  v.  Jowett  ,484 

District  of  Col.  v.  Armes  51a 

Ditchburn  v.  Goldsmith  253 

Diven  v.  Johnson  275 

DivoU  V.  Leadbetter  195,  207,  339 

Dix  ('.  Atkins  560 

V.  Otis  281 

Dixon  r.  Cooper  115,  410 

V.  Hamond  207 

V.  NiccoUs  5 

V.  Ramsay  544 

V.  Sinclear  630 

V.  Vale  451 

Doak  V.  Wis  well  532 

Doane  v.  Glenn  323 

D'Obree,  Ex  parte  40 

Dodd  /'.  Norris  54,  451,  458 

Doddington  v.  Hudson  409 

Doddington's  Case  26 

Dodge  ?'.  Freednian's  Saving,  &c.  Co.  189 

V.  Stanhope  329 


XXXVlll 


INDEX   TO   CASES   CITED. 


Dodge  V.  Zimmer 
Doe  c.  Allen 

V.  Andrews 

V.  Arkwriglit 

V.  Askew 

V.  Austin 

V.  Barnes 

V.  Bell 

17.  Benjamin 

V.  Benson 

V.  Beviss 

V.  Bejnon 

V,  Biggs 

V.  Bingham 

V.  Bird 

V.  Brawn 

V.  Bray 

)•.  Burdett 

V.  Burt 

V.  Burton 

V.  Campbell 

V.  Caperton 

V.  Cartwright        89, 

V.  Catamore 

V.  Chichester 

V.  Clifford 

V.  Cole 

V.  Cooke 

V.  Coombs 

V.  Davies 

V.  Davis 

V.  Deakin 

V.  Derby 

V.  Durnford 

V.  E.  of  Jersey 

V.  E.  of  Pembroke 

V.  Edwards 

V.  Errington 

V.  Flanagan 

V.  Fleming 

V.  Ford 

V.  Forster 

V.  Galloway 

V.  Green 

V.  Greenlee 

r.  Grey 

V.  Griffin 

V.  Gwillim 

V.  Harris 

V.  Harvey 

V.  Hatheway 

V.  Hawkins 

V.  Hertford 

V.  Hilder 

V.  Hirst 

V.  Hiscocks 

V.  Hodgson 

V.  Holton 

V.  Hubbard 

V.  Huddart 

V.  Huthwaite 

V.  Jack 

V.  Jesson 

V.  Johnson 


Section 

Section 

304 

Doe  V.  Joinville 

288 

197,  291 

V.  Jones 

109,  147,  189 

41,245 

t'.  Keeling 

49,  142 

144,  484,  4y3 

V.  Kelly 

559 

484 

V.  Kemp 

53« 

109,  189,  207 

V.  Lambly 

208 

75,  92,  493 

V.  Langdon 

241,  246 

263 

V.  Langfield 

109,  584 

584 

V.  Lea 

280 

280 

V.  Lewis 

558 

300,  584 

V.  Lloyd 

24 

21,  142,  291 

V.  Long 

73 

197 

V.  Lord  Geo.  Thynne 

154 

265,  406,  568 

V.  Lyford 

301 

180 

V.  Maisey 

389 

83 

V.  Manifold 

272 

104,  485 

V.  Martin 

277,  287,  291 

570 

V.  Mason 

130 

286,  287 

V.  Mew 

518 

151 

V.  Michael 

164 

109 

V.  Miles 

97 

272 

V.  Morgan 

289 

90,  150,  484,  493 

V.  Morris 

561 

564 

V.  Murray 

166 

287,  291,  301 

V.  Needs 

289,  290 

560 

V.  Nepean 

41 

94,  189 

V.  Newton 

578,  580 

46 

V.  Palmer 

564 

81 

V.  Passingham 

144 

49>  103,  133 

V.  Payne 

25,  109 

272,  570 

V.  Pearee 

142 

41,  570 

V.  Pegge 

207 

164 

V.  Pen  fold 

41 

569 

V.  Perkes 

273 

287 

V.  Perkins 

436,  437,  438 

104 

V.  Pettett 

109,  189 

73 

V.  Phelps 

144 

73 

V.  Phillips 

142 

41 

V.  Preece 

406,  535 

107 

V.  Pulman 

143,  585 

284,  285 

V.  Pye 

197 

164,  197 

V.  Randall 

10.3 

301 

V.  Reed 

46 

109 

V.  Richards 

186 

84 

V.  Rickarby 

109,  189 

561 

V.  Ries 

661 

41,  103 

V.  Roast 

291 

277 

I".  Roberts 

142 

240,  241 

V.  Robson                   116 

147,  152,  153 

87 

V.  Roe 

145,  479,  485 

574 

V.  Ross          73,  84,  241, 

245,  660,  582 

113 

V.  Rowe 

73 

246 

V.  Rowlands 

74,81 

5,46 

V.  Samples 

21 

46,  568 

V.  Seaton           189,  240, 

241,  484,  493 

295« 

V.  Shelton 

23 

560 

V.  Sisson 

52,  130 

287 

V.  iSleeman 

136 

291,  301 

V.  Smart 

75 

535 

V.  Smythe 

207 

288,  289,  290 

V.  Somerton 

561,  562 

84 

V.  Spitty 

561 

41 

V.  Stacey 

154 

78,  573 

V.  Staple 

46 

INDEX   TO   CASES   CITED. 


XXXIX 


Doe  y.  Stathara 

V.  Steel 

i;.  Steplicnsoil 

V.  Stiles 

V.  Suckennore  576, 

V.  Syboiirii  4t5, 

V.  Tarver  13^3, 

V.  Taylor 

V.  Thomas  138, 

V.  Tooth 

V.  Turford  40,  115,  116, 

V.  Tyler  151,  380, 

V.  Vowles 

V.  Waiiiwrigiit 

V.  Watkiiis 

V.  Watson 

V.  Webber 

V.  Webster 

1-.  Wilde 

V.  Wilkins 

i;.  Williams  147, 

I'.  Wilson 

V.  Wittcomb  115, 

V  WoUey 

V.  Wombwell 

V-  Wriglite 

i:  Young 
Dogan  V.  Seekright 
Doker  v.  Hasler 
Dolan  V.  Kehr 
Dolby  V.  lies 
Dolder  v.  Bank  of  England 

V.  Lord  Huntingfleld 
Dole  V.  Allen 

V-  Wilson 

V.  Wooldredge 
Donaldson  u.  Jude 

V  Winter 

Doncaster  (Mayor  of)  v.  Day 
Donelson  v.  Taylor 
Don  V   Lippman 
Donlevy  v  Montgomery 
Donnell  v.  Jones 
Donnellan  v.  Donnellan 
Donnelly  v.  State 
Donohoo  V.  Brannon 
Doon  u.  Donaher 

V.  Rarey 
Doorman  ?•.  Jenkins 
Doran  v.  Mullen 
Dorlon  v.  Douglass 
Dorman  v.  State 
Dormer  v.  Fortesque 
Dormoy,  In  re 

Dome  ('.  Southwork  Man.  Co. 
Dorr  V.  Fenno 

V.  Munsell 

V.  Tremont  Nat.  Bank 
Dorset  (D.  of)  v.  Ld.  Hawarden 
Dorsey  v.  Dorsey 
Doty  V.  Wilson  421 

Doughty  V.  Doughty 
Douglass  V.  FuUerton 

V.  Hart 


Section 

23 

210 

46!) 

570 

577,  580 

212,  551 

134,  578 

291 

145,  240 

333,  301 

120,  147 

Oi)0,  584 

116,  151 

180 

240,  241 

97 

109,  110 

23G 

40G 

571 

392,  406 

45,  581 

151,  154 

21,  570 

197 

46 

92 

301 

254,  337 

329 

211 

4 

6 

86 

5 

467 

510 

509 

163,  If.O 

421 

546 

329 

435 

260a 

445 

606 

87 

192 

108 

435 

201 

6 

359,  360 

488 

114 

69 

284 

75 

291 

189,  545 

426,  429 

334 

329 

118 


Section 

Douglass  V.  Mitchell  13 

V.  Reynolds  288 

V.  Sanderson  104,  849,  575 

V.  Spears  268 

V.  Tousey  54,  55,  461 

Douglass'  Case  13a 

Dove  V.  State  440 

Dover  v.  Maestaer  378 

Dow  V.  Sawyer  116 

Dowden  v.  Fowle  180 

Dowley  v.  WiiiKeld  41 

DowlJMg  V.  Dowling  52 

Downer  v.  Chesebrough  49 

I".  Howell  436 

Downing  v.  Ilaxton  498 

Downes  v.  Belden  189,  190 

V.  Cooper  25,  183 

Dows  V.  McMichael  531 

Dowton  V.  Cross                 '  181 

Doyle  V.  Bradford  5 

Drake  v.  Glover  5 

V.  Henly  385 

V.  Merrill  532 

V.  Mitchell  533 

V.  Sykes  180 

Dranguet  v.  Prudhomme  74 

Draper  v.  Garratt  60 

V.  Hatfield  91,  192 

Drayton  /'.  Dale  207 

V.  Wells  163 

Drew  r.  McDaniel  329 

V.  Roberts  334 

V.  Simmons  329 

V.  Wood  450 

Drew's  Case  219 

Drinkwater  v.  Porter  130,  140 

Drouet  v.  Rice  20 

Drown  v.  Smith  207 

Drowne  r.  Stimpson  349 

Drummond  v.  Magruder  506 

^^  Prestman  187,288 

Drummond's  Case  156 

Drumriglit  v.  Philpot  112 

V.  State  215 

Drury  v.  Hervev  197 

(>  Midland  R.  R.  Co.  139 

Du  Barre  v.  Livette  239,  247 

Du  Bois  V.  Mason  43 

Du  Bost  V.  Beresford  100,  101 

Duchess  of  Kingston's  Case  19,  248 

Duckett  V.  Williams  320 

Ducoign  V.  Schreppel  118 

Dudley  v.  Grayson  484 

V   Sumner  572 

V.  Vose  280 

Duel  V.  Fisher  390 

Duffield  V   Scott  180 

Duffin  V.  Smith  240,  242,  245 

Dufresne  r.  Weise  462 

Dugan  V.  Mahoney  437 

Duins  V-  Donovan  104 

T^uke  V.  Pownall  427 

Duling  r  Johnson  108 

Dumas  v.  State  160 


xl 


INDEX  TO   CASES   CITED. 


Section 

Dunbar  v.  Harden 

672, 

575 

V.  Mulry 

128 

Duncan  v.  Beard 

142 

581 

V  Hodges 

568(7 

V.  Meikleliam 

389 

Duncombe  i'.  I'riiidle 

480 

Dundas  v.  Lansing 

102 

Dundass  v.  Lord  Weymouth 

69 

Dungan  v.  Miller 

317 

Duniiam  v.  Averill 

290 

V.  Chicago 

91 

V.  Gannett 

287 

t'.  Riley 

559 

Dunlap  V.  Waldo 

506 

Dunn^y.  Aslett 

444 

4G7 

V.  Murray 

5^2 

V.  Packwood 

364, 

3b6 

V.  Snell 

190 

V.  State 

158 

V.  Whitney 

118 

Dunne  v.  Deery 

329 

Dunning  v.  Roberts 

268 

Dunraven  v.  Llewellyn 

129 

145 

Dupuy  V.  Truman 

93 

488 

Durbrou  v.  McDonald 

52 

Durden  v.  Cleveland 

551 

Durfee  v.  Abbott 

104 

Durgin  v.  Somers 

192 

Durham  (Bp.  of)  v.  Beaumont 

469 

V.  Shannon 

329 

Durkee  v.  Cent.  Pac.  R.  R.  Co. 

113 

V.  Leland 

239 

V.  Vermont  Central  Railroad 

88 

Durore's  Case 

65 

Durrell  v.  Bederley 

441 

V.  Evans 

82 

Durrett  v.  State 

13 

Durst  V.  Masters 

82 

Durston  v.  Tutlian 

60 

Dutch  &  Co.  V.  Mooney 

5 

Dutcher  v  Justices 

310 

Dutillet  V.  Blanchard 

479 

Duttenhofer  v   State 

238 

Dutton  V.  Gerrish 

281 

V.  Woodman            112,  177, 

198, 

467, 
532 

Duval  V.  Bibb 

26 

Du  Val  V.  Marshall 

43 

Dwight  V.  Linton 

288 

,322 

Dvvinel  v.  Pottle 

117 

,  118 

Dwinell  v.  Larrabee 

561 

Dwyer  v.  Collins 

245 

,561 

V.  Dunbar 

88 

Dyer  v.  Ashton 

205 

V.  Fredericks 

84 

V.  Morris 

432 

V.  Smith 

488 

V.  Tymewell 

348 

Dyke  r.  Aldridge 

180 

D3'kers  v.  Townsend 

268 

Dyson  v.  Wood 

513 

E. 

Eagan  n.  Larkin 

V.  State 
Eagle  V.  Emniett 
Eagleton  v.  Gutteridge 
Eames  c  Eanies 

V.  Whittaker 
Eardley  v.  Turnock 
Earl  V.  Baxter 

V.  Lewis 

V.  Tupper 
Earle  v.  Picken 

V.  Rice 

V.  Sawver 


Section 

49 

5 

41 

568« 

41,42 

449 

72 

20 

142 

102,  166 

45,  96,  200,  203 

284rt 

118 


Early  v.  Lake  Shore  &c.  R.  R.  Co.       51a 

Easly  V-  Eakin  118 

Eason  v.  Cliapman  461 

East  V.  Chapman  451 

East,  &c.  Co.  V.  Gaskell  5 

East  India  Co.  v.  Campbell  451 

V.  Evans  348 

V.  Gosling  416 

Eastman  v.  Bennett  108 

V.  Cooper  532 

V.  Crosby  5 

V.  Martin  105 

V.  Tuttle  207 

V.  Windship  167,  418 

East  Tennessee  R.  R.  Co.  v.  Duggan    108 

Eaton  V.  Alger  74 

V.  Campbell  484 

V.  Hall  509 

V  Ogier  208 
V.  Tallmadge  103 

V  Telegraph  Co.  171 
Eborn  v.  Zimpelman  84 
Eckertu  Triplett  189 
Eden  v.  Blake  304 
Eddy  V  Gray  13a 

V.  Wilson  275 

Edgar  v.  Richardson  96 

Edge  V.  Pemberton  52 

Edgell  V.  Bennett  254 

Edgerley  v.  Emerson  279 

Edgett  V.  Sliles  570 

Edie  V.  East  India  Co.  5 
Edington  v.  Mutual  Life  Ins.  Co.  243,  248 
Edme,  Ex  parte                                317,  318 

Edmiston  v.  Schwartz  506 
Edmonds  v.  Lowe                   391,  401,  416 

V  Rowe  371 

V  Walter  435 
Edmondson  v-  Stevenson  34 
Edson  u  Munsell  46,  144 
Edward  Altham's  Case  301 
Edwards  v.  Crenshaw  443 

V.  Crock  102 

V.  Evans  584 

V.  Matthews  76 

V.  State  34 
V.  Tracy                                      96,  177 

V.  Weeks  302 

0.  Williams  197 

Eel  River,  &c.  Co.  v.  Topp  5 


INDEX    TO   CASES   CITED. 


xli 


Egg  V.  Barnett 
Eggleston  v.  Speke 
Eioke  0.  Nokes 
Eidt  V.  Cutter 
Eiglimie  »•.  Taylor 
Eiland  u.  State 


Section 

38 

179 

241,  245 

52 

284rt 

218 


Eilert  v.  Green  Bay,  &c.  R.  R.  Co.         49 

Eld  V.  Gorliam  480 

Elden  v.  Kcsdell  519 

Elder  v.  Warfield  118 

Elderton's  Case  6 

Eldridge  v.  Hawley  196 

V.  Knott  20,  45 

Eldridge's  Case  217 

Elfe  V.  Gadsden  286 

Elgin  V.  Welch  ^   166 

Elkin  V.  Janson  78,  80 

Elkinton  u.  Brick  81 

Ellicott  V.  Cliamberlin  329 

V.  Pearl  137,  146 

Elliot  (;.  Porter  533 

Elliott  V.  Edwards  6 
V.  Piersol                            103,  104,  132 

V.  Van  Buren  102 

Ellis  V.  Buzzell  13a 

V.  Dempsey  111 

V.  Ellis  80 

V.  Great  West.  Ry.  Co.  49 

V.  Houston  288 

V  Park  5 

I'.  Reddin  5 

V.  Saltan  249 

V.  Smith  323 

V.  Thompson  292 

V.  Watson  210 

V.  Willard  305 

Ellison  v.  Cookson  296 

Ellmaker  v.  Buckley  445,  447 

EUmore  v.  Mills  505 

Ellsworth  V.  Moore  38 

Elmer  v.  Fessenden  51a 

Elsam  V.  Faucett  54,  102 

Elston  V.  Wood  179 

Elting  V.  Scott  171,  212 

Elton  V.  Larkins  186,  449 

Elwell  V.  Walker  84 
Elwood  V.  ]:)eifendorf             189,  420,  421 

Ely  (Dean  of)  v.  Caldecott  150 

V.  Ely  564 

Emerson  v.  Blonden  185 

V.  Brigham  398 

V.  Fisk  562 

V.  Lowell  Gas  Light  Co.  440 
V.  Providence  Hat  Manuf.  Co.       420 

V.  Tolman  570 

V.  White  103 

Emerton  v.  Andrews  396 
Emery  r.  Boston  Mar.  Ins.  Co.      292,  303 

V.  Fowler  165,  523 

V.  Grocock  46 

V.  Twombly  572 

Emmerson  v.  Heelis  269,  271 

Emmet  v.  Butler  356,  358 

Emmons  v.  Hay  ward  75 


Section 

Emmons  v.  Littlefield  26 

V.  Oldham  20 

Empson  v.  Griffin  7.'i 

Enders  ('.  Sternbergli  86,  201 

England  v.  Slade  25,  46 

pjngles  V.  Bruington  572 

English  V.  Porter  329 

V.  Sprague  513 

Ennis  v.  Smith  5,  488,  525 

Enos  V.  Tuttle  108 

P^nsign  V.  Webster  212 

Enterprise  (The)  1 13 

Enthoven  v.  Cobb  246 

Ephraims  v.  Murdoch  164,  165 

Ereskine  u.  Murray  5 

Erie  &  Pac.  Disp.  Co.  v.  Stanley  445 

Erie  Preserving  Co.  v.  Miller  436 

Erie  and  West  Va.  R.  R.  Co.  v.  Smith   113 

Ernest  v.  Brown  73 

Erskine  v.  Boyd  322 

V.  Davis  41 

V.  Plummer  271 

Erwin  v.  Saunders  281,  304 

Eskridge  v.  State  229 

Eslava  v.  Mazange  323 

Essex  Bank  v.  Rix  3-56 

Estell  V.  State  108 

Estill  V.  Taul  530,  531 

Estrella  (The)  4 

Etna  V.  Brewer  101 

Etheridge  v.  Palin  275 

Eustis  V.  Parker  175 

Evans  v.  Beattie  187 

V.  Birch  80 

V.  Browne  5 

V.  Eaton  389,  421,  423,  552 

V.  Evans  260a 

V.  Getting  497 

V.  Gibbs  354 

V.  Gray  423 

V.  Hettich  365,  389 

V.  King  69 

V.  Morgan  107 

V.  Rees  139,  313,  319 

V.  Roberts  271 

V.  Smith  341 

V.  Tatem  548 

V.  Taylor  139 

V.  Thomas  510 

V.  Yeatherd  395 

Evanston  v.  Gunn  4'.)3 

Everett  v.  Lowdham  432 

Everingham  v.  Roundell  84 

Ewens  v.  Gold  392 

Ewer  V.  Ambrose  442,  443,  512 

Exall  V.  Partridge  561 

Exchange  Co.  v.  Boyce  498 

Exeter  (Mayor  of)  o.  Warren  45 

Ex  parte  D'Obree  19 

Kip  175 

McNeil  316 

Express  Pub.  Co.  v.  Aldine  Press         275 


xlii 


INDEX   TO    CASES    CITED. 


F. 

Section 

Section 

Fenn  v.  Granger               330,  353, 

354 

,452 

Fabens  v.  Tirrill 

81 

Fenner  v.  Lewis 

187 

Fabrigas  v.  Mostyn 

183 

V.  London  &  S.  E.  Ry.  Co. 

239 

Fabyaii  v.  Adams 

322 

Fenno  v.  Weston 

198 

199 

V.  llussell 

6 

Fenwick  v.  Bell 

440 

Facey  v.  Hurdom 

49 

V.  Read 

154 

Fairchild  v.  Dennison 

118 

V.  Reed 

239 

Faircloth  v.  Jordan 

560 

V.  Thornton 

179 

Fairfield  County  Turn.  Co.  v.  Tl 

orp 

tiS2 

Fenwick's  (Sir  J.)  Case 

251 

252 

Fairlie  v.  Denton 

198 

199 

Ferbrache  v.  Ferbraclie 

329 

r.  Hastings 

113 

114 

Ferguson  u.  Harwood            56,  68,  69 

506 

F^ainnaner  v.  Budd 

212 

V.  Hubbell 

44U 

Fairtitle  v.  Gilbert 

24 

I'.  Mahon 

546 

Falkner  &  Bond's  Case 

217 

Ferraud  v.  Milligan 

684 

Falls  V.  Belknap 

175, 

3.31 

Ferrars  (Ld.)  v.  Shirley 

577 

Falmouth  (Earl  of)  v.  Thomas 

271 

Ferrer's  Case 

19 

(Earl  of)  V.  Moss 

248 

Ferrers  v.  Arden 

533 

(Earl  of)  ('.  Koberts 

664 

Ferris  v.  Ward 

40 

(Lord)  V.  George 

405 

Fetherly  v.  Waggoner 

570 

Fancourt  ';.  Bull 

396 

Fiedler  v.  Smith 

66 

Farar  v.  Warfield 

440 

P'ield  V.  Brown 

46 

Farley  v.  King 

552 

V.  Holland 

178 

V.  Tillar 

334 

V.  Mitchell 

394 

Farmers'  Bank  v.  Wliitehill    115 

116 

,147 

V.  Munson 

287 

Farmers'  &  Mech.  Bank  v.  Boraef 

437 

V.  Thompson 

117 

118 

V.  Dav 

299 

V.  Winlow 

69 

V.  Ward 

488 

Fielden  v.  Lahens 

323 

Farmers'  Mut.  F.  Ins.  Co.  v.  Bair 

435 

Fife  V.  Commonwealth 

219 

Farnsvvortli  v.  Briggs 

518 

519 

Fifield  V.  Richardson 

108 

Farnsworth  Co.  v.  Jland 

86 

V.  Smith 

422 

Farr  v.  Payne 

41 

Filer  v.  N.  Y.  Cent.  R.  R.  Co. 

440 

V.  Swan 

485 

Filley  v.  Angell 

99 

Farrah  v.  Keat 

319 

Filmcr  v.  Gott 

284 

Farrar  v.  Farrar 

265 

Finch  V.  Bishop  of  Ely 

474 

V.  Merrill 

46 

V.  Gridley 

581 

V.  Stackpole 

286 

293 

V.  Mansfield 

34 

Farris  v.  Commonwealth 

18 

Finn's  Case 

163 

Farrow  v.  Blomfield 

463 

Finnegan  v.  Dugan 

13a 

V.  Hayes 

275 

Finney's  Appeal 

284 

Farwell  v.  Hilliard 

539 

Firkin  v.  Edwards 

562 

V.  Tyler 

51rt 

First  Nat  Bank  v.  Cornell 

329 

Fassett  v.  Brown 

572 

First,  &c.  Bank  v.  McManigle 

40 

Faucett  v.  Nichols 

53 

Fish  V.  Hubbard 

300 

Faulder  v  Silk 

556 

V.  Skut 

34 

F"aulk  V.  State 

13a 

V.  Travers 

75,76 

Faunce  v.  Gray 

176 

Fisher  i'.  Bartlett 

207 

V.  State,  &c.  Ins.  Co. 

284 

V.  Conway 

461 

Faxon  v.  HoUis 

117 

118 

V.  Diebert 

296a 

Fay  V.  Gray 

275 

V.  Kitchingman 

510 

V.  Guynon 

254 

V.  Lane 

18 

,513 

1-.  Harlan 

102 

V.  Mayor 

39 

V.  Prentice 

5 

r.  New  Orleans  Anchor  Line 

334 

Fayette  v.  Chesterville 

440 

V.  Ronalds 

451 

Fazakerley  r.  Wiltshire 

6 

V.  True 

190 

Fearing  v.  Kimball 

198 

V.  Tucker 

112 

Feemster  v.  Ringo 

5 

V.  Willard 

421 

F'eeney  v.  Howard 

284 

Fisk  V.  Woodruff 

489 

V.  Long  Isl.  R.  R.  Co. 

248 

Fiske  V.  Allen 

117 

Fell  V.  B.  C.  R.  &  M.  R.  R.  Co. 

1()5 

V.  N.  E.  Mar.  Ins.  Co. 

80 

Fellowes  v.  Williamson 

108 

Fitch  V.  Bogue 

349 

,558 

Fellows  V.  Meuasha 

5 

y   Hill 

342 

V.  Smith 

109 

,189 

r.  Smalbrnnk 

375 

Felter  v.  Mulliner 

510 

Fitchburg  Bank  i.:  Greenwood 

288 

Fengar  v.  Brown 

275 

Fitler  v.  Shotvvell 

485 

493 

INDEX   TO    CASES    CITED. 


xli 


Section 

Section 

Fitzgerald  ".  Elsee 

572 

Forrester  v.  Pigou           167,  392, 

395,  4 1 8 

V.  Fauconberge 

564 

Forshaw  r.  Lewis 

245,  559 

Fitzgibbon  ?'.  Brown 

65 

Forster  v.  Hale 

2C.6 

Fitzliugh  V.  Wiman 

305 

Forster's  ("ase 

05 

Fitzpatriok  v.  Fitzpatrick 

291 

Forsytli  v.  Ganson 

176 

Fitzwalter  Peerage 

578,  5H0 

Forsythe  v.  Norcross 

117 

Flagg  V.  Mann 

421 

Fort  V.  Clarke 

104,  204 

V.  Mason 

109,  280 

Fort  Wayne  v.  Coombs 

440 

V.  People 

223 

Fortescue  &  Ccak's  Case 

3^9 

Flanagan  v.  People 

81 

Foscue  V.  Lyon 

5 

Flanders  v.  Davis 

38« 

Foss  V.  Haynes 

456 

V.  Merritt 

41 

Foster  v.  AUanson 

303 

Flato  V.  Muliiall 

43 

V.  Beals 

212 

Fleet  V.  Murton 

292 

V.  Collner 

329 

Fleming  v.  Clark 

86 

V.  Earl  of  Derby 

536 

V.  Gilbert 

302,  304 

V.  Hall                               237 

240,  241 

V.  Gooding 

207 

V.  Jolly 

281,  304 

Fletcher  o.  Braddyll 

40 

V.  Mackay 

558 

V.  B.  &  M.  R.  K. 

49 

V.  McDivit 

532 

V.  Froggatt 

201 

V.  McGraw 

287 

V.  Willard 

305 

V.  Newbrough 

55,87 

Flight,  Ex  parte 

285 

V.  Pierce 

451 

Fhndt  V.  Atkins 

514 

V.  Pointer 

562 

Flinn  V.  Calow 

281 

V.  Shaw                             165 

166,  539 

V.  M'Gonigle 

558 

V.  Sinkler 

118 

Flint  V.  Allyn 

356 

V.  Trull 

521 

Flood  V.  Mitchell 

436 

Foster's  Case 

05 

Florence  Mach.  Co.  v.  Daggett 

294 

Fotheringham  v.  Greenwood 

387,  395 

Flourenoy  v.  Durke 

548 

Fouke  V.  Fleming 

480 

Flower  v.  Herbert 

204,  207 

Foulkes  V.  Sellway 

54,  101 

Flowers  v.  Brumbach 

51  r, 

Fountain  v.  Coke 

347 

Floyd  V.  Bovard 

445 

V.  Young 

241 

V.  Ricks 

5 

Fowler  v.  Coster 

75,76 

Flynn  v.  Coffee 

41 

V.  ^tna  Ins.  Co. 

54 

Flynt  V.  Bodenhamer 

440 

V.  Merrill 

323 

Fogg  V.  Child 

114 

V.  Savage 

53!) 

V.  Dennis 

581 

Fox  V.  Clifton 

207 

Folkes  V.  Chadd 

52,  440 

V.  Jones 

472 

FoUain  v.  Lefevre 

6 

V.  Rcil 

569 

FoUett  V.  Jefferyes 

240,  242 

V.  Whitney 

85,  347 

Folsom  V.  Cook 

40 

V.  Widgery 

25 

V.  Cressey 

502 

Foxcroft  V.  Nevins 

187,  356 

V.  Log  Driving  Co. 

436 

Foy  V.  iEtna  Ins.  Co. 

441 

V.  Manchester 

252« 

Foye  V.  Patch 

284 

V.  Mussey 

304 

France  v.  Lucy 

562 

Fonnereau  v.  Poyntz 

288 

Franchot  v.  Leach 

284 

Fonts  V.  State 

220 

Francia's  Case 

217,  235 

Foot  V  Glover 

532 

Francis  v.  Edw.nrds 

114 

V.  Tracy 

55 

Frank  v.  Lilienfeld 

334 

Foote  V.  Beecher 

189 

Franklin  Bank  ?•.  Freeman 

416 

V.  Cobb 

572 

Franklin's  Adniinis.  App. 

28 

V.  Hayne 

239 

Franz  v.  Franz 

334 

Forbes  v.  Wale                  21,  144 

,  349,  570 

Eraser  v.  Charleston 

484 

Force  v.  Dutcher 

329 

V.  Harding 

430 

Ford  )'.  Cheney 

329 

V.  Hopkins 

494 

V.  Ford 

461 

V.  Marsh 

179,  427 

V.  Gray 

23 

Frayes  c.  Worms 

546 

V.  Haskell 

108 

Frazier  v.  Brown 

46 

Fordice  v.  Scribner 

275 

V.  Laughlin 

856 

Forgey  v.  First  Nat.  Bank  of 

Cam- 

V.  Penn.,  &c.  R.  R.  Co. 

55 

bridge  City 

440 

Frear  v.  Evertson            172,  329, 

347,  353 

Forney  v.  Ferrell 

174 

V.  Hardenbergh 

271 

V.  Hallacher 

169 

Free  v.  Hawkins 

281 

Forrest  x\  Shores 

26 

Freeholders,  &c.  v.  State 

20 

xliv 


INDEX   TO    CASES   CITED. 


Section 

Freeland  v.  Burt 

286 

V.  Heron 

197 

Freeman  v.  Arkell 

252 

V.  Brittin 

385 

V.  Creech 

63 

t'.  Lnckett 

387 

r.  Morey 

40 

V.  Pliillipps       129,  132,  133, 

135,  13<J 

V.  Thayer 

20 

V.  Walker 

210 

French  v.  French 

550 

V.  Taunton  Branch  R.  R.  Co 

49 

V.  White 

53 

Friberg  v.  Donovan 

147,  181 

Friedlander  v.  London  Assur.  Co 

443 

Friedman  v.  Railway  Co. 

156 

Friend  v.  Hamill 

53 

Frith  V.  Earlier 

280 

Frontine  v.  Frost 

80 

Frost  V.  Brigham 

275 

V.  Everett 

304 

V.  HoUoway 

459 

V.  Shapleigh 

521 

V.  Spaulding 

301 

Froude  v.  Froude 

320 

V.  Hobbs 

49 

Frye  v.  Barker 

118,  174 

Fu^net's  Will,  In  re 

272 

Fulkerson  v.  Thornton 

329 

Fuller  r.  Crittenden 

212,  305 

,      V.  Hampton 

175,  192 

V.  Linzee 

30 

V.  Rice 

322 

V.  Wheelock 

417 

Fulton  0.  Central  Bank 

445 

Fulton  Bank  v.  Staflford 

445 

Furber  v.  Hilliard 

362 

Furbush  v.  Goodwin 

305,  468 

Furly  V.  Newnham 

312,  320 

Furman  v.  Peay 

118 

Furnas  v.  Durgin 

52 

Furneaux  v.  Hutchins 

52 

Furneaux's  Case 

65 

Fursdon  v.  Clogg                      113, 

149,  152 

Fyke  v.  Lewis 

329 

Fyler  v.  Givens 

268 

Fyson  v.  Kemp 

508 

Section 
165 
290 
52,  108 
458 


G. 

Gabay  v.  Lloyd 
Gablick  v.  People 
Gage  V.  Campbell 
Gainsford  v.  Grammar 
Galbraith  iJ.  Galbraith 

V.  McLain 
Galbreath  v.  Cole 
Gale  V.  Lincoln 

V.  Nixon 

V.  People 
Galena,  &c.  R.  R.  Co.  v 
Gallagher  v.  State 
Gaudy  v.  Macaulay 


Fay 


292 

34 

87 

245 

423 

384 

114 

197 

268 

445 

108 

5 

329 


Gannon  v.  Stevens 

Ganson  v.  Madigan 

Garber  i'.  State 

Garbutt  v.  Simpson 

Garden  v.  CJreswell 

Gardere  v.  Columbian  Ins.  Co. 

Gardiner  v.  Croasdale 

V.  People 
Gardner  v.  Bennett 

V.  Chace 

V.  Eberhart 

V.  Gardner 

V.  Granniss 

i;.  Lightfoot 

V.  McMahon 

V.  Way 

V.  The  Collector 
Garey  v.  Nicholson 
Garlock  v.  Geortner 
Garnet  v-  Ball 
Garrard  v.  State 
Garrells  v.  Alexander 
Garrett  v.  Stuart 
Garrott  v.  Johnson 
Garth  v.  Howard 
Gartside  v.  Outram 
Garvin  v.  State 

V.  Wells 
Garwood  v.  Dennis 

V.  Garwood 

I'.  Hastings 
Ga skill  V.  Skene 
Gass  V.  Gass 

V.  Stinson 
Gassenheimer  r.  State 
Gately  v.  Irvine 
Gatliercole  v.  Miall 
Gaul  V.  Fleming 
Gaunt  V.  State 
Gay  V.  Bates 

V.  Bowen 
Gaynor  v.  Old  Colony  R.  R. 
Geach  v.  Ingall 
Gebhart  v.  Sliindle 
Gedney  v.  Logan 
Geery  v.  Hopkins 
Gelston  v.  Hoyt 
George  v.  Joy 

17.  Kimball 

V.  Pearce 

V.  Pilcher 

V.  Sargent 

V.  Stubbs 

V.  Surrey 

V.  Thompson 
Georgia  Pac.  R.  R.  Co  v.  Gaines 
Geralopulo  v.  Wieler 
Gerding  v.  Walter 
Gerhauser  v.  N.  British,  &c.  Ins.  Co 
Gerrish  v.  Cummings  356,  357 

V.  Sweetser  192 

V.  Towne  287 

Gertz  V.  Fitchburg  R.  R.  Co.  372 

Gest  V.  New  Orleans,  &c.  R.  R.  Co.      503 


319 

514 

61 

37 

822 

305 

6,84 

28,48 

141,  143 

284 

112 

118 

480 

201 

38 

184 

111,  231 

577 

26 

165,  532 

113 

240 

13a 

5 

23 

288 

41 

198 

175 

421,  445,  461,  554 

53 

284 

558 

78 

13a 

192 

112 

49 

73,  76 

365,  430 

189 

474 

541,  543 

305,  436 

409 

1H7 

469 

356 

423 

572,  577 

562 

5 

82 

88 

163 


INDEX   TO   CASES   CITED. 


xlv 


Getchell  v.  Heald 
Geter  v.  Martin 
Getzlaff  V.  Seliger 
Geuing  v.  State 
Gevers  v.  Mainwaring 
Geyer  v.  Irwin 
Gibbes  v.  Vincent 
Gibblehouse  r.  Stong 
Gibbon  V.  Featherstonhaugh 
Gibbon's  Case 
Gibbons  v.  Coggon 

V.  Powell 
Gibbs  V.  Bryant 

V.  Gilead 

V.  Iluyler 

V.  Pike 
Gibney's  Case 
Gibson  );.  Hunter 

V.  Jeyes 

V.  Manufac.  Ins.  Co. 

V.  McCarty 

V.  Peebles 

V.  Stevens 

V.  Waterhouse 

V.  Winter 
Gilbert  v.  Anthony 

i;.  Bullcley 

V.  Duncan 

V.  Manchester  Iron  Co. 

V.  Ross 

V.  Thompson 
Gilchrist  v.  Bale 
Gildersleeve  v.  Caraway 

V.  Mahonv 
Giles  V.  O'TooIe 
Gillard  v.  Bates 
Gillebrand,  Ex  parte 
Gilleland  v.  Martin 
Gillet  V.  Sweat 
Gillett  V.  Co.  Commissioners 
Gilliam  v.  State 
Gillies  V.  Smithers 
Gilligan  v.  Tebbetts 
Gillooley  v.  State 
Gilman  v.  Strafford 
Gilmanton  v.  Ham 
Gilmore  v   Bowden 
Gilpin  V.  Vincent 
Gitt  V.  Watson 
Givens  v.  Bradley 
Glascock  V.  Hays 
Glass  V.  Beach 
Glassell  v.  Mason 
Gleadow  v.  Atkin     115,  116, 
Gleason  v.  Knapp 

I'.  McVickar 
Glenn  v.  Grover 

V.  Rogers 
Globe  Works  v.  Wright 
Glossop  V.  Pole 
Glubb  V.  Edwards 
Glynn  v.  Bank  of  England 
Goblet  V.  Beechey 
Goddard  v.  Gardner 


Section 

Section 

174 

Goddard  v.  Ingram 

112 

118 

V.  Leffingwell 

329 

2-11 

V.  Parr 

458 

79 

Goddard's  Case 

24 

394,  417 

Godding  v.  Orcutt 

117 

316 

Godefroy  v.  Jay 

508 

41 

Godfrey  v.  Norris 

672 

109,  190 

Goggans  v.  Monroe 

84 

38 

Goldie  ('.  Gunston 

207 

484,  493 

V.  Shuttleworth 

186 

97 

Goliishede  v.  Swan 

285 

5(52 

Goldsmith  (■.  Bane 

581 

358,  427 

V.  Picard 

54 

49 

V.  Sawyer 

5 

443 

Goldstein  v.  People 

28 

584 

Goldstone  v.  Davidson 

513 

229 

Gooch  V.  Bryant 

664 

53 

Goodacre  v.  Breame 

395 

80 

Goodall  V.  State 

157 

486 

Goodhay  v.  Hendry 

95,  392,  422,  426 

362 

Goodhue  v.  Barllett 

323 

121 

Goodier  v.  Lake 

658 

6 

Gooding  v.  Morgan 

6 

78 

Goodinge  i'.  Goodinge 

288 

173 

Goodlett  V.  Kelley 

329 

668rt 

Goodman  v.  Goodman 

107 

265 

V.  Harvey 

81 

89 

V.  James 

606 

430 

V.  Kennedy 

468 

84 

Goodrich  v.  Longley 

281 

532 

V.  Stevens 

28Q 

102,  108,  341 

V.  Tracy 

185 

165 

I'.  Weston 

82,  84,  558 

201 

Goodright  v.  Downshire 

288 

440 

V.  Hicks 

55 

244 

V.  Moss               103, 

133,  134,  253,  344 

249 

V.  Saul 

106 

41 

V.  Straphan 

568a 

564 

Goodtitle  v.  Baldwin 

45 

86 

V.  Braham 

75,  434 

461 

V.  Clayton 

443 

84 

V.  Southern 

301 

112 

r.  Welford 

347,  419,  429 

247,  248 

Goodwin  V.  Appleton 

6 

440 

V.  Hubbard 

266 

13a 

r.  Jack 

485,  570 

348 

V.  State 

440 

333,  388 

V.  West 

311 

38 

Goodwin  Co.'s  App. 

241 

55 

Gord  V.  Needs 

289,  290 

532 

Gordon  v.  Jeffery 

568a 

163 

v.  Montgomery 

5 

558 

V.  Niemann 

275 

122,  149,  153 

V.  Parmelee 

13a 

334 

Gore  r.  Elwell 

500 

60 

Gorham  v.  Canton 

108 

260 

V.  Carroll 

385,  452 

562 

Gorrissen  v.  Perrin 

292 

277 

Gorton  w.  Dyson 

518 

556 

V.  Hadsell 

49 

572 

Goslin  V.  Corry 

584 

117.  121 

Gosling  I'.  Birnie 

207 

288,  299 

Goss  V.  Lord  Nugent 

302 

239 

V.  Tracy 

672 

xlvi 


INDEX   TO    CASES   CITED. 


Section 

Section 

Goss  V.  Watlington 

116,  147,  150 

187 

Green  v.  Caulk 

436 

Gosse  V.  Tracy 

168 

V.  Clielsea 

145,  570 

Gosset  V.  Howard 

b8(;. 

V.  Howard 

288 

Gough  V.  Cecil 

575 

V.  Jones 

392 

V.  (iiOllllll 

670 

V.  New  River  Co. 

394,  527 

I'.  St.  Jolin 

54 

V.  Pratt 

118 

Gould  V.  Barnes 

69 

V.  Proude 

509 

V.  Conway 

116 

i).  Rugely 

43 

i-.  Crawford 

105 

V.  Salmon 

392 

V.  Gould 

552 

V.  State 

319 

V.  James 

331 

V.  Sutton 

356 

V.  Jones 

678 

r.  Waller 

5 

V.  McCarty 

560 

V.  Weller 

480 

V.  Oliver 

205 

Greenawalt  v.  Kol 

ne 

284,  284a 

Goulding  v.  Clark 

540 

I'.  McEnelley 

169 

Gove  V.  Gawen 

260« 

Greene  v.  Clarke 

532 

V.  State 

2:13 

II.  Mills 

118 

Governor  v.  Bell 

498 

Greenfield  Bank  v 

Crafts 

40 

V.  Jeffreys 

498 

Greenlaw  v.  King 

240 

V.  McAffee 

498 

Greenleaf  y.  Dubu 

que, 

&c. 

R.  R.  Co.    103 

Governor  of  Chelsea  Waterworks  v. 

Cowper  21 
Gower  v.  Emery  245 
Grace  i:  Adams  38a 
Gracie  i-.  Morris  568 
Graffam  v.  Pierce  284(( 
Grafton  v.  Weeks  316 
Grafton  Bank  v.  Moore  177 
Gragg  V.  Frye  66 
Graham  v.  Anderson  6 
V.  Bowhani  166 
V.  Campbell  84 
V.  Chrystal  461 
V.  Wliitely  540 
Graham,  In  re  451 
Grand  Rapids,  &c.  R.  R.  Co.  v.  Hunt- 
ley 102 
V.  Martin  248 
Granger  v.  Warrington  237 
Grant  ?•.  P>ost  296a 
V.  H.  Clay  Coal  Co.  489 
V.  Jackson  177,  204,  210 
V.  Maddox  2'.)2 
V.  McLaehlin  541 
V.  Ridley  320 
V.  Thompson  440 
Grattan  v.  Metropolitan  Life  Ins.  Co.  248 
Graves  ?-.  Joice  535 
V.  Key  207,  212 
Gray  v.  Davis  502 
V.  Gardiner  40 
V.  Goodrich  108 
V.  Harper  280,  292,  295 
V.  McLaugldin  102 
V.  Palmer  174,  177 
V.  Pentland  251 
V.  Pingry  631 
Grayson  v.  Atkinson  272 
Great  Falls  Co.  r.  Worster  145 
Great  Northern  Ry.  Co.  v.  Harrison      287 
(ireat  Western  Ry.  Co.  v.  Bacon  79 
Greaves  v.  Hunter  581 
Green  v.  Batson  284 
V.  Brown  41 


V.  Quincy  112 

Greenough  v.  Eccles  444 

V.  Gaskell  237,  239,  242,  244 

V.  West  385 

Greenshields  v.  Crawford  675 

Greenwood  v.  Sias  112 

Greer  v.  Higgins  462 

V.  State  329 

Gregg  V.  Forsyth  479 

Gregory  v.  Baugh  108 

V.  Dodge  420 

V.  Howard  192 

V.  Parker  185 

V   Sherman  275 

V.  Tavernor  437,  466 

V.  Thomas  55 

Grellier  v.  Neale  572 

Grenfell  v.  Girdleston  39 

Gresley  v.  Mouseley  38a 

Greville  v.  Chapman  441 

Grey  v.  Young  102,  430 

Grierson  v.  Mason  284 

Griffin  v.  Brown  342,  395,  539 

V.  Montgomery  R.  R.  Co.  113 

r.  Smith  254 

Griffin's  Case  220 

Griffing  v.  Harris  385 

Griffith  V.  Da  vies  245 

V.  WiUiams  578 

Griffiths  r.  Hardenbergh  297 

V.  Williams  27,  186 

Griffits  V.  Ivery  449,  580 

Grigg's  Case  339,  340,  345,  449 

Grimes  v.  Bastrop  46 

r.  Kimball  558 

Grimwood  v.  Barritt  60 

Griswold  v.  Geb])ie  440 

V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.        440 

V.  Pitcairn  4 

V.  State  218 

Groom  v.  Bradley  394 

Grossfield's  Case  255 

Grote  r.  Grote  47 

Guernsey  v.  Carver  632 


INDEX  TO   CASES   CITED. 


xlvii 


Section 

Section 

Guidon  v.  Robson 

207 

Haley  v.  Godfrey 

427 

Guild  V.  Lee 

179,  537 

Halifax's  (Lord)  Case 

40 

Guild's  Case     217,  219,  220,  221,  222,  223 

Hall  V.  Augustine 

43 

Guinness  v.  Carroll 

546 

V.  Ball 

84,  682 

Gulf  City  Ins.  Co.  o.  Stephens 

322 

V.  Baylies 

392 

Gulick  V.  Gulick 

241 

V.  Cazenove 

285 

Gully  V.  Grubbs 

26 

0.  Cecil 

395,  401 

Gunnison  v.  Gunnison 

310 

V.  Costello 

488 

Gunter  v.  Watson 

435,  467 

V.  Davis 

290 

Gurney  v.  Langlands 

580 

V.  Doyle 

372 

Gurr  V.  Rutton 

101 

V.  Fisher 

301 

Gutchess  V.  Gutchess 

113 

V.  Gittings 

145 

Guthrie  v.  Lowry 

540 

V.  Gliddeu 

117 

Gutteridge  v.  Smith 

206 

V.  Hale 

391 

Guy  V.  Hall 

885 

V.  Hill 

185 

V.  Mead 

118 

V.  Hoddesdon 

552 

I'.  Sharp 

287,  291 

V.  Houghton 

443 

Gwinnet  v.  Phillips 

60,66 

V.  Manchester 

609 

Gyles  V.  Hill 

508 

V.  Mayo 

145 

V.  Odber 

546 

V.  Otis 

329 

H. 

V.  Phelps 

569 

V.  State 

53 

Habenicht  v.  Lissak 

.    286 

V.  Steamboat  Co. 

426 

Habershon  v.  Troby 

249 

V.  White 

208 

Hacker  v.  Young 

484 

V.  Williams 

502,  548 

Hackett  v.  Callendar 

197,  207 

Hall,  Matter  of, 

41 

0.  King 

86 

Halleck  v.  Boylston 

493 

V.  Martin 

190 

Hallet  V.  Mears 

310 

V.  People 

156 

Hallett  V.  Cousens 

462 

Hackley  v.  Patrick 

112 

Halliday  v.  Martinet 

116 

Hackman  v.  Fernie 

73 

Halloway  v.  Raikes 

147 

Hadden  v.  Roberts 

292 

Halsey  v.  Sinsebaugh 

118 

Haddow  v.  Parry 

116,  147 

Halstead  i'.  Tyng 

329 

Haddrick  v.  Raine 

49 

Haly  V.  Lane 

207 

Hadduck  v.  Wilmarth 

385 

Ham  u.  Ham 

6,25 

Hadfield  v.  Jameson 

4 

Hamblin,  Succession  of, 

550 

Hadjo  V,  Gooden 

469 

Hamer  v.  Sowerby 

559 

Hadley  v.  Carter 

108 

Hamilton  v.  Cutts 

180,  394 

I'.  Green 

632 

V.  Des  Moines  R.  R. 

440 

V.  Howe 

145 

V.  Hamilton 

329,  334 

Hadrick  );.  Heslop 

357 

V  Marsden 

572,  575 

Haerle  v.  Kreihn 

334 

V.  Menor 

145 

Hal!felfinger  v.  Shutz 

564 

V.  People                    111, 

440,  461,  461 

Hagaman  v.  Case 

118 

V.  Williams 

167,  572 

Hagedorn  v.  Allnut 

310 

Hammatt  v.  Emerson 

113 

V.  Reid 

116 

Hammett  v.  Little  Rock,  &c. 

R.  R.  Co.     5 

Hagenlocher  v.  Coney  Isl.  &  B. 

R. 

Hammick  v.  Bronson 

107 

R.  Co. 

102 

Hammon  v.  Huntley 

176 

Haig  V.  Newton 

437 

Hammond  v.  Bradstreet 

136 

Haigh  V.  Belcher 

52,  449 

V.  Dike 

462 

V.  Brooks 

285 

V.  Inloes 

5 

Haile  v.  Palmer 

485,  493 

V.  Stewart 

314 

Haines  v.  Dennett 

385 

Hammond's  Case 

578,  580,  581 

V.  Hanrahan 

5 

Hampshire  i'.  Pierce 

289,  291 

Haire  v.  Wilson 

18 

Hampton  v.  McConnell 

504 

Halbert  v.  Skyles 

5 

Hanbury  v.  Ella 

73 

Hale  V.  Ard 

117 

Hancock  v.  American  L.  Ins 

.  Co.           41 

V.  Finch 

523 

V.  Cook 

121 

V.  Rich 

145 

V.  Welsh 

531 

V.  Rose 

489. 

Hancock  County  v.  Leggett 

102 

V.  Russ 

657,  568a 

Hand  v.  Brookline 

440 

V.  Smith 

398 

Handley  v.  Edwards 

402 

V.  Taylor 

329 

u.  Ward 

434 

xlviii 


INDEX   TO    CASES   CITED. 


Section 

Section 

Hanley  v.  Donogliue 

5 

Harrison  v.  Courtauld 

421 

Hanlon  i\  Dolierty 

241 

V.  Gordon 

449 

Hannaford  v.  Hunn 

631 

V.  Johnson 

329 

Hannay  v.  Stewart 

113 

V.  Middleton 

437 

Hanover  (K.  of)  v.  Wlieatley 

467,  554 

V.  More 

96 

Hanover  K.  R.  Co.  v.  Coyle 

108 

V.  Neely 

329 

Hanover  Water  Co.  v.  Ashland 

V.  Kowan 

434,  445 

Iron  Co. 

440 

V.  Russell 

54 

Hansard  v.  Robinson 

558 

V.  South 

35 

Hanson  i;.  Cliiatoviuh 

41 

V.  Tiernans 

568a 

V.  Eustace 

37 

V.  Vallance 

180,  190 

V.  Parker 

180 

Harrison's  Case 

79 

V.  Shackleton 

6 

Harrod  v.  Barretto 

548 

V.  South  Scituate 

498 

Hart  V.  Baltimore,  &c.  R.  R. 

Co. 

5 

V.  Stetson 

281 

V.  Deamer 

556 

Harbold  v.  Kuster 

294 

V.  Hammett 

283 

Hard  v.  Brown 

101 

V.  Hart 

38a 

Harden  v.  Gordon 

212 

V.  Hudson  River  Bridge  Co. 

462 

Hardenburgh  v.  Cockroft 

440 

I'.  Newman 

196,  209 

Hardiman  v.  Herbert 

19 

V.  Powell 

108 

Harding  v.  Carter 

208 

V.  State 

5 

V.  Greening 

36 

V.  Wilson 

116 

V.  Hale 

532 

V.  Yunt 

84 

Hardman  v.  Willcock 

207 

Hart's  Case 

408 

Hardy  v.  Chesapeake  Bank 

329 

Hartford  v.  Palmer 

365 

V.  Merrill 

440 

Hartford  Bank  v.  Hart 

332 

V.  State 

49 

Hartford  Bridge  Co.  v.  Grar 

iger 

192 

Hare  v.  Munn 

76 

Hartford  Prot.  Ins.  Co.  v.  H 

armer        441 

Harger  v.  Edmonds 

440 

Hartley  i\  Brooks 

117 

Hargrave  v.  Everard 

38rt 

V.  Manson 

568a 

V.  Hargrave 

103,  166 

V.  Wilkinson 

283 

Harman  v.  Lasbrey 

891,  401 

Hartman  v.  Alden 

329 

Harm  an 's  Case 

225 

V.  Diller 

189 

Harmar  v.  Davis 

207 

V.  Keystone  Ins.  Co. 

441 

Harmon  v.  Arthur 

427 

Hartness  v.  Thompson 

197.  356 

Harnett  r.  Garvey 

440 

Hartwell  v.  Root 

40,80 

V.  Johnson 

81 

Harvey  v.  Alexander 

26 

Harper  v.  Burrow 

164 

V.  Coffin 

392 

V.  Gilbert 

277 

V.  Grabham 

302 

Harriman  v.  Sampson 

334 

V.  Hilliard 

329 

V.  Stowe 

108 

V.  Kay 

97 

Harrington  v.  Fry 

577 

V.  Mitchell 

660 

V.  Lincoln 

469 

V.  Richards 

528 

V.  Sedalia 

334 

V.  Thomas 

84 

V.  State 

34 

V.  Thorpe 

84 

V.  Tremblay 

329 

V.  Towers 

78 

Harris  v.  Forman 

284a 

Harvey's  Case 

231 

V.  Harris 

215 

Harvy  v.  Broad 

5 

I'.  Holmes 

51a 

Harwood  v.  Goodright 

37 

V.  Johnston 

305 

V.  Keys 

180 

V.  Mantle 

52 

V.  Mulry 

118 

V.  Rathbun 

292 

V.  Sims 

133 

135,  138 

V.  Ravner 

58 

Hasbrouck  v.  Baker 

96 

V.  Rickett 

285 

Haskell  i'.  Hervey 

329 

V.  Rosenberg 

37 

Haskill  V.  Commonwealth 

79 

V.  State 

215 

Haskins  v.  Warren 

81 

V.  Tippett                  52,  423, 

449,  450 

Haslam  v.  Cron 

105 

V.  Wilson                   177,  428, 

425,  449 

Hassam  )'.  Barrett 

284 

Harris's  Case 

227 

Hassard  v.  Municipality 

5 

Harrisburg  Bank  v.  Forster 

385 

Hastings  v.  Blue  Hill  Turnpike 

Harrison  v.  Baker 

171 

Corporation 

484 

V.  Barnby 

61 

V.  Lovejoy 

303 

V.  Blades                           147, 

163,  572 

V.  Rider 

440 

V.  Charlton 

165 

Hatch  V.  Dennis 

190 

INDEX   TO   CASES   CITED. 


xlix 


Section 

Hatch  V.  Elkina 

187 

V.  Fuller 

102 

V.  Hatch 

568 

V.  Fry  or 

87 

V.  State 

581 

Hatfield  v.  Thorp 

341 

Hathaway  v.  Clark 

20 

V.  Evans 

103 

V.  Haskell 

176 

V.  Nat.  L.  Ins.  Co. 

440 

V.  Tinkhani 

99 

Hatliorn  v.  King 

440 

Hatt  V.  Nay 

51a,  55 

Hatton  V.  Kobinson 

238 

Hauberger  v.  Root 

176 

Hauer  v.  Patterson 

282 

Haughey  v.  Strickler 

51a 

Haven  v.  Brown 

113 

V.  Wendell 

437 

Haverly  v.  Railroad  Co. 

305 

Havis  ('.  Barkley 

387 

Hawarth's  Case 

225 

Hawes  «.  Draeger 

28 

V.  Marcliant 

204 

V.  N.  E.  Ins.  Co. 

441 

V.  State 

239 

V.  Watson 

207 

Hawk  V.  Applegate 

114 

Hawkes  v.  Kennebeck 

6 

Hawkesworth  v.  Showier 

357,  407 

Hawkins  v.  Brown 

322 

V.  Finlayson 

394 

V.  Grimes 

581 

V.  Howard 

246 

V.  Luseombe 

179 

V.  Warre 

89 

Hawks  V.  Baker 

371 

V.  Charlemont 

52 

Haworth  v.  Bostock 

39 

Hawthorne  v.  State 

18 

Hayden  v.  Inhab'ts  of  Madison 

197 

V.  Stone 

189 

Hayes  v.  Burkam 

174 

V.  Morse 

122 

V.  Seaver 

187 

Hayne  v.  Maltby 

25 

Haynes  v.  Commonwealth 

102 

V.  Ledyard 

445 

V.  Rowe 

323 

V.  Rutter 

108 

V.  Young 

301 

Haynie  v.  State 

213 

Hays  V  Northwestern  Bank 

5 

V.  Ricliardson 

422 

Hayslep  v.  Gymer 

199 

Hayward  Rubber  Co.  v.  Duncklee 

190 

Hazard  v.  Loring 

305 

V.  N.  Y.  &  Prov.  R.  R. 

462 

Hazeldine  v.  Grove 

49 

Hazleton  »;.  Union  Bank 

581 

Head  v.  McDonald 

539 

V.  Shaver 

172 

Heald  v.  Thing 

440 

Healey  v.  Thatcher 

192 

Healey  v.  Thorne 

S 

ection 
45 

Healey,  In  re 

317 

Heane  v.  Rogers 

204 

,207 

Heard  v.  Wadham 

303 

Hearn  v.  N.  E.  Marine  Ins.  Co. 

292 

V.  Toralin 

25 

Heaston  v.  Cincinnati,  &c.  R. 

R.  Co. 

5 

Heath  (;.  Hall 

408 

V.  State 

432 

Heaton  ;;.  Findlay 

242 

Heckert  v.  Fegely 

358 

V.  Haine 

569 

Hedden  v.  Roberts 

40 

Hedge  v.  Clapp 

462 

Heeiy  c.  Barnes 

421 

Heermance  v.  Vernoy 

398 

Heeter  v.  Glasgow 

284 

HetFron  v.  Gallupe 

252a 

Heilman  v.  Lazarus 

80 

Heinemann  v.  Heard 

74 

Helliard  v.  Jennings 

392 

Helmsley  v.  Loader 

196 

Hemenway  v.  Smith 

238 

,2.39 

Hemingway  v.  Garth 

444 

Hemming  v.  English 

429 

V.  Parry 

73 

Hempstead  v.  Reed 

488 

489 

Henderson  v.  Anderson 

385 

V.  Henderson 

546 

V.  Jones 

469 

V.  Kenner 

632 

V.  State 

84 

V.  Wild 

172 

174 

Hendrick  v.  Crowley 

304 

Hendrickson  v.  People 

225 

Henfree  v.  Bromley 

566 

Henkin  v.  Gerss 

253 

Henman  v.  Dickinson 

342 

564 

V.  Lester 

96 

449 

Hennell  v.  Lyon 

507 

512 

Hennershotz  v.  Gallagher 

275 

Henry  v.  Adey 

514 

V.  Bishop 

569 

V.  Brown 

69 

V.  Cleland 

69 

V.  Lee 

436 

V.  Leigh                            484  496 

560 

V.  Risk 

280 

V.  Willard 

112 

Hensgen  v.  Mullaly 

118 

Henshaw  v.  Davis 

118 

Hentliorne  v.  Doe 

3,21 

Hepburn  v.  Auld 

46 

Herbert  v.  Ashburner 

473 

V.  Tuckal 

116 

Hercules,  The 

495 

Herman  v.  Drinkwater 

348 

Hernandez  v.  State 

84 

Herrick  v.  Malin 

664 

V.  Noble 

281 

Herring  v.  Boston  Iron  Co. 

288, 

297 

V.  Clobery 

240 

V.  Goodson 

28 

V.  Levy                              115,  117, 

118 

vol..  I. — d 


INDEX   TO   CASES   CITED. 


Section 

Herschfield  v.  Clark 

559 

Hervey  v.  Hervey 

107 

Hess  V.  Lowrey 

440 

Hester  v.  Commonwealth 

108,  449 

Heuston  v.  Simpson 

248 

Heward  v.  Shipley 

384,  413 

Hewitt  V.  Corey 

462,  4B9 

V.  Piggott 

198 

V.  Prime 

248 

Hewlett  v.  Cock 

142,  144 

V.  Wood 

440 

Hewley  (Lady)  Charities,  Case  of        295 

Hey  (;.  Commonwealth 

432 

Heydon's  Case 

293 

Heywood  v.  Reed 

101,  460 

Hibbert  v.  Knight 

241 

Hibblewhite  v.  McMorine 

568,  568rt 

Hibshman  v.  DuUeban 

528,  550 

Hickman  v  Alpaugh 

43 

V.  Upsall 

41 

Hicks  V.  Pearson 

581 

Hier  v.  Grant 

829 

Higbee  v.  Dresser 

242 

V.  McMillen 

254 

Higdon  V.  Thomas 

26 

Higgins  V.  Butler 

829 

V.  Dellinger 

197 

V.  Dixon 

58 

V.  People 

102 

Higgs  V.  Dixon 

569 

Higham  v.  Ridgway       116,  147, 

149,  150, 

151,  152 

Highfield  I'.  Peake                  507 

516,  517 

Highland  Turnp.  Co.  v.  McKean 

493 

Higley  v.  Bidwell 

145 

Hildebrant  v.  Crawford 

829 

Hildreth  v.  Aldrich 

444 

V.  Martin 

199 

V.  O'Brien 

305 

Hill  V.  Bacon 

5 

V.  Barge 

272 

V.  Buckminster 

304 

V.  Coombe 

434 

V.  Crosby 

17 

V.  Great  Western  Railway 

559 

V.  Grigsby 

43 

V.  Gust 

462 

V.  Hibbit 

104 

V.  Lafayette  Ins.  Co. 

441 

V.  Manchester  &  Salford  Water 

Works 

26 

V.  Miller 

283 

V.  Packard 

488,  508 

V.  Proctor 

109 

?;.  Salt 

73 

V   Syracuse 

805 

Hill's  Case 

65,  160 

Hillary  v.  Waller 

39 

Hills  V.  Barnes 

564 

V.  Home  Ins.  Co. 

440 

V  Ludwig 

189 

Hilt  V.  Campbell 

58,  06 

Hilts  V.  Colvin 

84,  375 

Hinckley  v.  Beckwith 

5 

Section 

Hinckley  v.  Cape  Cod  Railroad 

49 

V.  Hinckley 

329 

V.  Thatcher 

295 

Hinde  v.  Vattier 

5,  490 

Hindustan,  Bank  of  v.  Alison 

22 

Hines  v.  Soule 

190 

Hinkle  v.  Wanzer 

260 

Hinman  v.  Brees 

521 

Hinxman's  Case 

227 

Hiscocks  V.  Hiscocks 

289,  291 

Hissrick  v.  McPherson 

113 

Hitchcock  V.  Moore 

834 

V.  Tj'son 

205 

Hitchins  v.  Kardley 

103 

Hix  V.  Whittemore 

42 

Hoar  V.  Goulding 

290 

Hoare  v.  Cory  ton 

150,  181 

V.  Graham 

281 

V.  Silverlock 

5 

Hobart  v.  Bartlett 

422 

Hobbs  I'.  Lowell 

207 

V.  Memphis  R.  R.  Co. 

5 

V.  Parker 

528 

Hobson  V.  Ogden 

171 

Hockin  v.  Cooke 

5,280 

Hockless  V.  Mitchell 

427 

Hockley  v.  Lamb 

405 

Hodempyl  v.  Vingerhoed 

112 

Hodgdon  v.  Wight 

38 

Hodge  V.  Corriel 

329 

Hodge's  Case 

84 

Hodges  V.  Hodges 

103 

V.  Holder 

75,76 

V,  Horsfall 

288 

V.  St.  Louis,  &c.  R.  R.  Co. 

49 

Hodgkinson  v.  Fletcher 

185 

V.  Willis 

512 

Hodgson  V.  Merest 

179 

Hodnett  v.  Forman 

572 

Ilodsdon  V.  Wilkins 

394,  402 

Hodson  ?•.  Marshall 

396 

V.  Sharpe 

207 

Hoe  V.  Nelthrope 

518 

Hoey  V.  Furman 

532 

Hoffman  v  Smith 

248 

Hoge  V.  Fisher 

81,  440 

Hoggan  V.  Craigie 

107 

Hoggett  V.  Exley 

76 

Hoit  V.  Russell 

329 

Holbert's  Estate 

529 

Holbrook  v.  Gay 

118 

V.  Holbrook 

189 

V.  Jackson 

93 

V.  McBride 

74 

V.  Tirrell 

265 

Holcomb  V.  Cornish 

613 

V.  Holcomb 

865 

Holcombe  v.  Hewsoa 

52 

V.  Holcombe 

440 

V  State 

89 

Holden  v.  Hearn 

892 

i\  Jenkins 

.569 

Holding  V.  Elliott 

288 

V.  Pigott 

294 

INDEX  TO   CASES   CITED. 


li 


r 

Section  1 

Ser.tion 

Holdsworth  v.  Mayor  of  Dartmouth 

Houston  j;.  McCluny 

189 

444 

467 

Hovey  v.  Sawyer 

440 

Holladay  v.  Littlepage            116 

,  120 

147 

Hovill  V.  Steplienson      167,  386, 

418,  435, 

Holland  v.  Reeves 

406 

572 

Hollenback  v.  Fleming 

6G9, 

56yu 

How  V.  Hall 

89 

HoUenbeck  v.  Shutts 

281 

Howard  v.  Braithwaite 

384 

Hollingham  v.  Head 

53 

V.  Brovver 

334 

HoUister  i;.  Young 

329 

V.  Canfield 

438 

Holloway  v.  Raikes 

147 

V.  Chadbourne 

392,  428 

Holman  v.  Burrow 

5,6 

V.  City  Fire  Ins.  Co. 

449 

V.  Kimball 

237 

239 

V.  Mitchell 

631 

V.  King 

486 

V.  Odell 

284 

Holme  V.  Green 

174 

V.  Patrick 

163 

Holmes  v.  Baddeley              237, 

240, 

240a 

V.  Peete 

64 

V.  Broughton 

43 

V.  Smith 

96,  203 

V.  Johnson 

41 

V.  Tucker 

208 

V.  Love 

78 

Howe  V.  Howe 

388 

V.  Pontin 

572 

V.  I'eabody 

565 

V.  Remsen 

542 

V.  Walker 

281 

V.  State 

461 

Howell  V.  Howell 

189 

Holsten  v.  Jumpson 

287 

V.  Lock 

421 

Holt  V.  Collyer 

278 

V.  Moores 

284 

V.  Miers 

529 

562 

V.  Richards 

69 

r.  Fie 

278 

V.  Taylor 

440 

V.  Squire 

186 

194 

i\  Thomas 

73 

Homan  v.  Thompson 

75 

Rowland  v.  Conway 

462 

Home  ('.  Lord  Bentinck 

250 

251 

?'.  Lenox 

310 

V.  McKenzie 

438 

V.  Sheriff,  &c. 

437 

Homer  v.  Brown 

530 

Howser  v.  Commonwealth 

86 

V.  Wallis                           568 

,572 

581 

Hoxie  7'.  Wright 

548 

Hone  I'.  Mut.  Safety  Ins.  Co. 

292 

Hoy  V.  Morris 

239 

Honeywood  v.  Peacock 

572 

Hoyle  V.  Corn  wallis 

5 

Hood  V.  Reeve 

182 

Hoyt  V.  Davis 

334 

Hooper  v.  Moore 

5 

V.  Hammekin 

323 

Hope  V.  Evans 

200 

V.  Hoyt 

243,  248 

V.  Harman 

668a 

V.  McNeil 

5 

Hopewell  v.  De  Pinna 

41 

V.  Wildfire 

389 

Hopkins  v.  Banks 

112 

Hubbard  v.  Hubbard 

77,  432 

V.  De  Graffenreid 

575 

V.  Johnson 

329 

V.  Indian.  &  St.  Louis  R.  R. 

Co. 

441 

V.  Knous 

205 

V,  Manchester 

329 

V.  Lees 

104 

V,  Megquire 

577 

V.  Russell 

84 

V.  Millard 

498 

Hubbell  V.  Grant 

334 

V.  Neal 

347 

Hubbert  v.  Borden 

281 

V.  School  District 

288 

Hubbly  V.  Brown 

391,  399 

Horford  v.  Wilson 

584 

Hubley  v.  Vanhorne 

580 

Home  V.  Haverhill 

322 

Huckman  v.  Fernie 

74,  76 

V.  Mackenzie 

436 

Hudson  V.  Brown 

81 

V.  Smith 

319 

V.  Chicago,  &c.  R.  R.  Co. 

51o 

Home  Tooke's  Case 

198 

V.  Guestier 

541 

Horner  v.  Stillwell 

290 

V.  Harrison 

197 

Horry  District  v.  Hanion 

564 

V.  Revett 

568a 

Hosford  V.  Rowe 

147 

V.  Roos 

163 

Hoskins  v.  Miller 

519 

Huet  V.  Le  Mesurier 

493 

Hosmer  v.  Groat 

463 

Huff  V.  Bennett 

166,  219 

Hostetter  v.  Auman 

275 

Huffman  v.  Click 

440 

Hotchkiss  ('.  Gen.  Ins.  Co. 

469 

Hughes  r.  Biddulph      204,  237, 

240,  240a 

V.  Lyon 

187 

V.  Blake 

530 

Hotham  v.  East  India  Co. 

304 

V.  Buckland 

49 

Houghton  V.  Koenig 

84 

V.  Budd 

562 

Houghton  (Bank  of)  v.  Robert 

578 

V.  Cornelius 

5 

Houlditch  V.  Donegal 

546 

V.  Hampton 

118 

Houliston  V.  Smyth 

38 

,102 

V.  Rogers 

449,  5«0 

House  V.  Metcalf 

51a 

Hughes'  Case 

82 

lii 


INDEX  TO   CASES   CITED. 


Section 


Hugliey  V.  Eichelberger 

329 

Huidekoper  v.  Cotton 

252 

Hull  V.  Blake 

629,  542 

V.  State 

444 

Humble  v.  Hunter 

281 

V.  Mitchell 

267 

Hume  V.  Scott 

461 

Humphrey  v.  Humphrey 

54 

V.  Knapp 

319 

Humphreys  v.  Budd 

6 

V.  Guillow 

564 

V.  Miller 

402 

Hunneman  v.  Fire  District 

275 

Hunnicutt  v.  Peyton 

109,  145 

Hunscom  i-.  Hunscom 

369 

Hunsinger  v.  Hofer 

445 

Hunt  1-.  Adams                276,281 

565,  567 

V.  Bridgham 

112,  174 

V.  Eaton 

334 

V.  Gray 

275 

V.  Hort 

801 

V.  Lawless 

578 

V.  Livermore 

283 

V.  Luquere 

144 

V.  Lyle 

505 

V.  Massey 

121 

V.  Roylance 

93,  209 

V.  Strew 

185 

Hunter  (The) 

31,37 

Hunter  v.  Caldwell 

49 

t'.  King 

404,  409 

V.  Kittredge 

329 

V.  Leathley 

416 

V.  New  York,  0.  &  W.  R.  R.  Co.  5,  6 

V.  Randall  99 

V.  State  108 

Huntingdon  R.  R.  Co.  v.  Decker  113 

Huntingford  v.  Massey  53 

Huntington  v.  American  Bank  205 

V.  Attrill  440 

V.  Finch  564 

Huntley  v.  Whittier  40 

Hurd  (.'.  Moring  245 

Hurlburt  v.  Meeker  329 

Hurley  v.  O'Sullivan  75 

V.  State  163 

Hurst  V.  Beach  296 

V.  Jones  104 

Hurst's  Case  316,  318 

Hurt  V.  Evans  109,  145 

Hussey  v.  State  3.34 

Hussman  v.  "Wilkc  279 

Hutclieon  v.  Mannington  5 

Hutchings  c.  Castle  189 

V.  Corgan  166 

Hutchins  v.  Adama  61 

i;.  Denziloe  260a 

V.  Hutchins  189 

V.  State  310 

Hutchinson  v.  Tatham  292 

Hutchison  v.  Bowker  49,  277,  280 

V.  Sinclair  26 

Hutton  V.  Warren  294 

Hutton,  In  re  41 


Section 

Hyckman  v.  Shotbolt  69 

Hyde  Park  v.  Canton  41 

Hydorn  v.  Cushman  113 

liydrick  v.  Burke  43 

Hyleing  i;.  Hastings  112 

Hylton  V.  Brown  659 

Hymers  v.  Druhe  284 

Hynde  i;.  Vattier  21 

Hynes  v.  McDermott  581 


lasigi  V.  Brown  477,  559 

Icehour  v.  Martin  319 

Ide  V.  Stanton  268 

Ilderton  v.  Atkinson  391,  416 

Illinois,  &c.  Co.  v.  Bonner  84 

111.  Cen.  R.  R.  Co.  v.  Sutton  102 

Illinois  Ins.  Co.  v.  Marseilles  Co.  430 

Illinois  Land  &  Loan  Co.  v.  Bonner     284 

Imlay  v.  Rogers  252 

Imperial  Gas  Co.  v.  Clarke  474 

Imperial  Land  Co.,  In  re,  32C 

Imrie  v.  Castrique  546 

Indiana  Car  Co.  v.  Parker  13a 

Indianapolis,  &c.  R.  R.  Co.  v.  Caldwell    5 

V.  Stout  164 

Ing  V.  Brown  260 

Ingalls  V.  State  34 

Inge  V.  Murphy  488,  489 

IngersoU  v.  Truebody  285 

Inglis  V.  State  5 

Ingraham  v.  Bockius  117 

V.  Dade  422 

V.  Hutchinson  17 

Ingram  v.  Dada  426 

V.  Lea  89 

V.  State  6 

Innis  V.  Campbell  41 

Innman  v.  Foster  55 

In  re  Bauer  241 

Inslee  v.  Prall  118 

Insurance  Co.  v.  Forcheimer  5 

V.  Hazen  55 

V.  Mosley  102,  108,  156 

V.  Throop  280 

V.  Weides  437 

V.  Woodruff  113 

V.  Wright  486 

Ireland  v.  Powell  138 

V.  Stiff  463 

Irish  Soc.  v.  Derry  584 

Iron  Mountain  Bank  v.  Murdock  449 

Irvine  v.  Stone  66 

Irving  V.  Irving  675 

Irwin  V.  Reed  163 

V.  Shumaker  356 

Irwin's  Case  227 

Isabella,  The  281 

Isack  V.  Clarke  144 

Isbell  V.  N.  Y.  &  N.  Haven  R.  R.  Co.  40,  52 

Isliam  V.  Gibbons  518 

Isler  V.  Dewey  469 


INDEX  TO   CASES  CITED. 


liii 


Section 

Section 

Israel  v.  Benjamin 

205 

Jackson  v.  Russell 

104 

V.  Clark 

210 

V.  Scissam 

207 

Ivat  V.  Finch 

147,  189 

V.  Seager 

819 

Ives  V.  Niles 

118 

V.  Smith 

207 

Ivey  V.  Young 

73 

V.  Spear 

207 

V.  Sprague 

301 

J. 

V.  State 

108,  160 

V.  Stetson 

179 

Jack  V.  Dougherty 

26 

V.  Thomas 

444 

Jackson  v.  Bailey 

104, 105 

V.  Tliomason 

462 

V.  Bard 

109,  189 

V.  Vail 

84,  174 

V.  Benson 

390 

V.  Vanderheyden 

24 

V.  Blanshan 

21,  144,  570 

V.  Van  Dusen 

272 

V.  Bonehani 

484 

V.  Varick 

445 

V.  Brooks 

389,  578 

V.  Waldron 

84,  575 

V.  Browner 

103 

V.  Williamson 

252tt 

V.  Burtis 

237,  241 

i;.  Winchester 

164 

V.  Burton 

572 

V.  Wood 

639 

V.  Chase 

265 

V.  Wooley 

174 

V.  Cliristman 

437,  570 

V.  Wright 

24 

V.  Commonwealth 

158 

Jackson's  Case 

259 

V.  Cooley 

103,  104 

Jacob  V.  Lindsay 

90,  436,  439 

V.  Crissey 

164 

V.  United  States 

83,92 

V.  Davis 

21 

Jacobs  y.  Duke 

54 

V.  Denn 

34 

V.  Hesler 

254 

V.  Dobbin 

207 

V.  Humphrey 

180 

V.  Fairbank 

112,  174 

I'.  Layburn 

421,  424 

V.  French 

239 

V.  Phillips 

327 

V.  Frier 

349,  558 

V.  Shorey 

111 

V.  Galloway 

427 

V.  Whitcomb 

102 

V.  Gould 

568 

Jacobson  v.  Fountain 

331,  428 

V.  Gridley 

367,  369 

Jacocks  V.  Gilliam 

474,  484 

V.  Hesketh 

74,  75,  76 

James  v.  Biou 

37,  196 

V.  Jackson 

88,  166,  421 

V.  Brawn 

92 

V.  Jones 

559 

V.  Hackley 

176 

V.  King 

484 

V.  Hatfield 

347 

V.  Kingsley 

571 

V.  Phelps 

49 

V.  Knifien 

156 

V.  Salter 

74 

V.  La  Grange 

575 

V.  Spaulding 

117 

V.  Lamb 

144 

V.  State 

13a 

V.  La  row  ay 

142,  144,  570 

V.  Trollop 

144 

V.  Lawson 

164 

V.  Walruth 

69 

V.  Leek 

443 

V.  Wharton 

120 

V.  Litch 

447 

James,  Ex  parte 

341 

V.  Luquere 

21,  142,  144 

Jameson  v.  Drinkald 

440 

V.  Malin 

5()6 

Jansen  v.  Ostrander 

69 

V.  Maim 

319 

J'Anson  v.  Stuart 

55 

V.  Marsh 

301 

Janvrin  v.  Fogg 

462 

V.  Matsdorf 

24 

Jardine  v.  Sheridan 

192,  239 

V.  M'Call 

45,  145 

Jarrett  v.  Jarrett 

81 

V.  McVey 

241,  245 

V.  Leonard 

181 

V.  Metropolitan  Ry. 

Co.                 '  49 

Jarvis  i'.  Albro 

39 

V.  Miller 

498 

V.  Robinson 

5 

V.  Mills 

24 

Jasper  v.  Porter 

6 

V.  Murray 

46 

Jeacock  v.  Falkener 

288 

V.  Myers 

284 

Jeanes  v.  Fridenburgh 

242,  245 

V.  Nelson 

389 

Jeans  v.  Wheedon 

227,  582 

V.  Osborn 

564 

Jefferds  v.  Alvard 

61a 

V.  Pesked 

19 

V.  People 

229 

V.  Phillips 

581,  581a 

Jefferis  i;.  Urny 

117 

V.  Pratt 

426 

Jeffers  v.  Radcliff 

550 

V.  Reynolds 

207 

Jefferson  Ins.  Co.  v.  Cotheal 

441 

V.  Robinson 

519 

Jeffersonville  &c.  R.  R.  Co.  v 

.Riley    372 

r.  Ramsey 

167,  418 

JefEery  v.  Walton 

304 

liv 


INDEX   TO   CASES   CITED. 


Section 


Jeffries  v.  Harris 

54 

Jelf  V.  Oriel 

73 

Jemison  v.  Planters',  &c. 

Bank                 5 

Jenkins  v.  Davies 

133 

V.  Eldredge 

296a 

V.  Pliillips 

73 

Jenks's  Case 

65 

Jenne  v.  Harrisville 

488 

Jenner  v.  Joliffe 

86,  96,  203,  521 

Jenney  v.  Rodman 

2U7 

Jennings  v.  Wliittaker 

204 

Jennison  v.  Stafford 

74 

Jermain  v.  Denniston 

190 

Jessup  V.  Cook 

164 

Jevens  v.  Harridge 

349 

Jewell  V.  Center 

5 

V.  Jewell 

103,  108 

Jewett  V.  Adams 

394,  420 

V.  Torrey 

207 

V.  Winship 

329 

Joannes  v.  Bennett 

37,84 

Jochumsen  v.  SufEolk  Savings  Bank 

41,  550 

John  V.  Currie 

73 

John's  Case 

158,  160 

Johnson  v.  Beardslee 

174 

V.  Blackman 

190,  353 

V.  Brailsford 

273 

V.  Browning 

352 

V.  Com. 

13a 

V.  Culver 

440 

V.  Cunningham 

409 

j;.  Dalton 

281 

V.  Daverne 

245,  577 

V.  Dexter 

329 

V.  Durant 

249 

V.  Heald 

329 

V.  Hocker 

498 

?;.  Indianapolis 

5 

V.  Johnson 

248,  272,  305 

V.  Knight 

167 

V.  Lawson 

103 

V.  Lyford 

582 

V.  McGruder 

260 

V.  Merithew 

30,  41,  329 

V.  Powers 

165 

V.  Rannels 

505 

V.  Russell 

171 

V.  Shaw 

570 

V.  State  156,158,159,160,217,219,223 

V.  Thoroughgood 

58 

V.  Ward 

114,  484 

Johnston  v.  Breedlove 

118 

V.  Caulkins 

54 

V.  Cottinghara 

27,  532 

V.  Todd 

103,  462 

Johnstone's  Case 

65 

Jolley  t'.  Taylor 

89 

Jolly  V.  Young 

49 

Jonau  V.  Ferrand 

448 

Jones  V.  Albee 

282 

V.  Barkley 

304 

V.  Brinkley 

572 

V.  Brooke 

391,  401 

Jones  V.  Carrington 

V.  De  Kay 

V.  Edwards 

V.  Flint 

V.  Foxall 

V.  Gale 

V.  Georgia 

V.  Greaves 

V.  Habersham 

V.  Hays 

V.  Herbert 

V.  Hoar 

V.  Hoey 

V.  Jones      13a,  103,  114, 

V.  Kennedy 

V.  Knauss 

V.  Lake 

V.  Lanier 

V.  Long 

V.  Mason 

V.  McNeil 

V.  Moore 

V.  Morrell 

V.  Neale 

V.  Newman 

V.  Overstreet 

V.  Perry 

V.  Pitcher 

V.  Pugh 

V.  Randall  482, 

V.  Roberts 

V.  Sasser 

V.  Simpson 

V.  State 

V.  Stevens 

V.  Stroud 

V.  Tarlton 

V.  Tucker 

V.  Turberville 

V.  Turpin 

V.  Vanzandt 

V.  Ward 

V.  White 

V.  Williams 

V.  Witter 

V.  Wood 
Jones's  Case 
Jonesboro  v.  McKee 
Jordaine  v.  Lashbrooke 
Jordan  v.  Fenno 

V.  Lewis 

V.  Osgood 

V.  Stewart 

V.  Van  Epps 

V.  Wilkins 
Jordan's  Case 
Joseph  V.  Bigelow 
Joyce  V.  Maine  Ins.  Co. 
Judd  V.  Gibbs 
Judge,  &c.  V.  Briggs 
Judice  V.  Chretien 
Judson  V.  Blanchard 
Jumpcrtz  i".  People 
.Jury  V.  Orchard 


Section 

189 

118 

562 

179,  271 

192 

6 

379 

13a 

272 

5 

174 

205 

260a 

168,  329,  675 

74 

37,  316 

272 

452 

117 

374,  572 

533 

112 

197,  215 

323 

289,  291 

5 

101 

494 

240 

491,  508,  511 

445,  575 

26 

334 

209,  363,  581 

55 

438 

94 

49,  440 

178 

252 

51a 

26,  166 

537 

53a 

190 

165 

225 

175 

385 

260 

254a,  471 

51a,  53 

564 

528 

563 

102,  108 

304 

441 

171,  195 

503,  513,  518 

485 

349 

581 

561 


INDEX  TO   CASES   CITED. 


Iv 


K. 

Section 

Kaines  v.  Knightly  281 

Kaiser  v.  Alexander  118 
Kalamazoo  Nov.  Man.  Co.  v.  MeAIister 

283 

Kaler  v.  Builders'  Mut.  F.  Ins.  Co.       449 

Kane  v.  Johnston  79 

Kannon  v.  Galloway  581 

Kansas,  &c.  11.  R.  Co.  v.  Miller  30 

V.  Ricliardson  49 

Karr  v.  Stivers  118 

Kay  V.  Brookman  575 

Kaye  v.  Waghorn  302 

Kaywood  v.  Barnett  103 

Kean  v.  Rice  489,  504,  505 

Kearney  v.  Far  ell  102 

Keating  v.  Price  304 

Keator  v.  People  461 

Keeling  v.  Ball  84,  572 

Keene  v.  Deardon  46 

Kehoe  i\  Commonwealth  158,  160 

Keightley  v.  Birch  394 

Keith  V.  Kibbe  117,  118 

V.  Lathrop  677 

;;.  Wilson          •  4.32 

Kell  V.  Nainby  207 

Kellenberger  v.  Sturtevant  527a 

Keller  v.  Nutz  104 

V.  Stuck  41 

V.  Wel)b  275,  287 

Kelley  v.  McGuire  103 

V.  People  111,  199 

V.  State  215 

Kello  V.  Maget  573 

Kellogg  V.  Smith  301 

V.  Tompson  279 

Kelly  V.  Powlet  288 

V.  Small  185,  341 

V.  State  461 

Kelsey  v.  Bush  201 

V.  Hanmer  658,  571,  574 

Kelsoe  v.  State  52 

Kelton  V.  Hill  118,  329 

Kelway  v.  Kolway  237 

Kemble  v.  Lull  295 

Kemmerer  v.  Edelman  434 

Kemp  V.  King  560 

Kempland  v.  Macaulay  181 

Kendall  v.  Field  118,  420 

V.  Powers  513 

Kendig's  Appeal  275 

Kendrick  v.  State  165 

Kenerson  v.  Henry  144 

Kennard  v.  Kennard  486,  488 

Kennedy  v.  Commonwealth  6 

1-.  Doyle  115 

V.  Erie,  &c.  Plank  Road  Co.  281 

V.  Labold  145 

V.  Niles  356 

Kennett  v,  Greenwollers  392 

Kenrick  v.  Kenrick  260a 

Kensington  v  Inglis  436,  437 

Kent  V.  GarviQ  117,  118 


Section 

Kent  V.  Lincoln 

5h( 

V.  Mason 

437 

V.  State 

449,  4«2 

V.  White 

74 

Kentner  v.  Kline 

375 

Kern  v.  South  St.  Louis  Mut. 

Fire 

Ins.  Co. 

441 

Kerr  v.  Chess 

532 

V.  Love 

118 

Kerr's  Case 

229 

Kerrains  v.  People 

329 

Kerrison  v.  Coatsworth 

396 

Kerwin,  Ex  parte 

568« 

Kessel  v.  Albetis 

5 

Ketcham  v.  Brooks  84 

Key  V.  Dent  523,  527 

V.  Shaw  101,  197 

Keys  V.  Williams  260 

Keystone  Mfg.  Co.  v.  Johnson  190 

Kibbe  v.  Bancroft  117 

Kidder  v.  Blaisdell  6 

Kidney  v.  Cockburn  104,  105 

Kieran  v.  Sandars  207 

Kilbourn  v.  Thompson  309 

Kilburn  v.  Bennett  41,  108 

Kilheffer  v.  Herr  531 

Kilpatrick  v.  Commonwealth  6 

Kilverts'  Trusts,  In  re  290 

Kimball  v.  Huntington  173 

V.  Morrell  558 

V.  Myers  287 

V.  Thompson  360 

Kimmel  v.  Kimmel  461 

Kincaid  v.  Howe  38 

V.  Purcell  356 

King  V.  Badeley  288 

V.  Chase  527,  528,  531 

V.  Donahoe  581 

V.  Hoare  533 

V.  Kent  6 

V.  Little  20,  21 

V.  Lowry  356 

V.  Paddock  41 

V.  Peakman  461 

V.  Robinson  66 

V.  Ruckman  296 

V.  Waring  55 

V.  Worthington  82 

King  (The)  v.  Harris  257 

V.  Mashiter  280 

Kingfleld  v.  PuUen  310 

Kingham  u.  Robins  205 

Kingman  v.  Cowlee  505 

Kingsbury  v.  Davidson  28 

V.  Moses  90 

Kingsford  v.  Hood  290 

Kingston  v.  Leslie  46,  493 

Kingston  (Mayor  of)  v.  Horner        20,  45 

Kingston's  (Duchess  of)  Case         19,  248, 

436,  523,  531,  541 

Kinleside  v.  Harrison  440 

Kinnersley  v.  Wni.  Orpe         484,  523,  535 

Kinney  v.  Berran  322,  323 

V.  Farnsworth  145,  207 


Ivi 


INDEX   TO   CASES   CITED. 


Section 

Kinney  v.  Flynn 

282,  577 

Kinsley  v.  Robinson 

385 

Kinsman  v.  Kershaw 

305 

Kip  V.  Brigham 

180,  539 

Kip,  Ex  parte 

175 

Kirby  v.  Sisson 

558 

Kirk  V.  Eddowes 

296 

Kirkland  v.  Smith 

506 

Kirkpatrick  v.  Stingley 

539a 

Kirksey  v.  Kirksey 

581 

Kirwan  v.  Cockburn 

479 

Kissam  v.  Forrest 

445,  554 

liitchen  v.  Campbell 

531,  533 

V.  Tyson 

118 

Kitner  v.  Whitlock 

74 

Kittell  V.  Railroad  Co. 

329 

Kittridge  v.  Russell 

191 

Klare  v.  State 

5 

Klein  v.  Landman 

35 

Kline  v.  Baker 

5,  65,  80,  486 

Kling  V.  Kansas 

248 

Knapp  V.  Maltby 

567,  568a 

Knapp's  Case                   219, 

222,  223,  231 

Knick  ('.  Knick 

286 

Knight  V.  Brown 

329 

V.  Clements 

564 

V.  Cunnington 

447 

V.  Dauler 

509 

V.  House 

461 

V.  Lord  Waterford 

240 

V.  Macoraber 

39 

V.  Marquess  of  Waterford      150,  561 

V.  Martin 

571 

V.  Packard 

385 

Knox  V.  Bigelow 

329 

V.  Jenks 

46 

V.  Silloway 

571 

V.  Waldoborough 

529 

Koch  V.  Howell 

117 

Koehler  v.  Adler 

329 

Kohn  V.  Marsh 

27,  206 

Kolb  V.  Whiteley 

52 

Kotwitz  V.  Wright 

117 

Kowing  V.  Manly 

58 

Kraft  V.  Wickey 

544 

Kramer  v.  Commonwealth 

53 

Krebs  v.  State 

156,  161 

Krekeler  v.  Ritter 

531 

Krider  v.  Lafferty 

279 

Kuhtman  ?>.  Brown 

323 

Kurtz  V.  Hibner 

291 

Kyburg  v.  Perkins 

496 

La  Beau  i\  People  440 

Labaree  v.  Wood  341 

La  Ban  v.  Vanderbilt  174 

La  Caygas  v.  Larionda  479 
Lacon  v.  Higgins         75,  76,  392,  487,  488 

Lacv  V.  McNeiie  112 

Ladd  V.  Blunt  501 

Lade  v.  Holford  46 


Section 

Lady  Dartmouth  v.  Roberts 

46 

Lafayette  County  Mou.  Corp.  v. 

Ma- 

goon 

273 

Lagrasse  *'.  Curran 

310 

Laing  v.  Barclay 

246 

V.  Kaine 

672 

Lainson  v.  Tremere 

22 

Lake  v.  Auburn 

420 

V.  King 

6 

V.  Munford 

51a 

Lamar  v.  Micou 

5 

Lamb  v.  Hart 

118 

V.  Lamb 

289 

329 

Lambe's  Case                     90,  215, 

224 

228 

Lambert  v.  Hale 

81 

V.  People 

182 

Lambeth  v.  Vawter 

112 

Lamey  v    Bishop 

73 

L'Amitie,  The 

387 

Lampen  v.  Kedgewin 

530 

Lampon  v.  Corke 

26 

212 

Lamprey  v.  Nudd 

532 

Lampton  v.  Haggard 

5 

Lanauze  v.  Palmer 

87 

Lancaster  v.  Lane 

513 

V.  Whitehill 

581 

Lancey  v.  Phoenix  Ins.  Co. 

287 

Lancum  v.  Lovell 

139 

Lander  v.  Seaver 

54 

Landsbcrger  v.  Gorham 

239 

Lane  v.  Chandler 

172 

V.  Crombie 

78 

V.  Harrison 

530 

V.  Ld.  Stanhope 

288 

Lane's  Case 

6 

Lang  V.  Gale 

49 

V.  Phillips 

40 

Langdon  v.  Goddard 

550 

V  Langdon 

279 

,305 

Langhorn  i'.  AUnutt 

113 

Langley  v.  Fisher 

341 

V.  Lord  Oxford 

186 

V.  Wadsworth 

447 

Lanning  v.  Lanning 

329 

Lansdowne  v.  Lansdowne 

288 

Lansing  v.  McKillip 

68 

Lansingburg  (Bank  of)  i'.  Crary 

271 

Lapham  v.  Whipple 

284a 

Lapsley  v.  Grierson 

41 

Larbalestier  v.  Clark 

391 

,398 

Larned  v.  Buffington 

55 

Laros  v.  Commonwealth 

231 

,440 

Larry  v.  Sherburne 

199 

Lassiter  v.  State 

432 

Latham  v.  Kenniston 

177 

,395 

V.  Latham 

322 

Lathrop  v.  Blake 

297 

V.  Stuart 

6,19 

Latkow  V.  Eamer 

556 

Lattimore  v.  Harsen 

303 

Lauder  v.  Lauder 

467 

Laughlin  v.  State 

102 

Lavalle  v.  People 

5 

Law  V.  Law 

322 

INDEX  TO   CASES   CITED. 


Ivii 


Section 

Section 

Law  V.  Merrills 

200 

Le  Fevre  v.  Le  Fevre 

302 

V.  Scott 

201 

Lefferts  v.  De  Mott 

895,  427 

Lawder  v.  Lawder 

435,  4G7 

V.  State 

569,  575 

Lawes  v.  Reed 

43G 

Legatt  V.  Tollervey 

254a,  471 

Lawhorn  v.  Carter 

117 

Legge  V.  Boyd 

73 

Lawless  v.  Queale 

96 

V.  Edmonds 

28,  179 

Lawley's  (Lady)  Case 

343 

Legge tt  V.  Boyd 

430 

Lawrence  v.  Barker 

443,  449 

V.  Cooper 

205 

V.  Boston 

440 

Legh  V.  Legli 

173 

V.  Campbell 

240 

Lehan  v.  Good 

632 

V.  Houghton 

371 

Lehigh  Coal  &c.  Co.  v.  Cent 

R.  R. 

V.  Hunt 

631 

Co. 

329 

V.  Ins.  Co. 

559 

Leicester  (E.  of)  v.  Walter 

55 

V.  Minturn 

88 

Leideman  v.  Schultz 

280 

V.  Thatcher 

113 

Leigh  V.  Leigh 

288 

Lawson  v.  State 

215,  461 

Leighton  v.  Perkins 

428 

Lawton  v.  Kittredge 

260 

Leke's  (Sir  Francis)  Case 

51,  56,  60 

V.  Sweeney 

37 

Leland  v.  Wilkinson 

490 

Laxton  v.  Reynolds 

559 

Lemayne  v.  Stanley 

272 

Layer's  Case                               90 

228,  461 

Lench  v.  Lench 

200,  214,  266 

Layman's  Will 

243 

Leo,  Tiie 

310 

Lazear  v.  Nat.  Un.  Bank 

29fja 

Leonard  r.  Allen 

55,  440 

Lazier  v.  Westcott 

4 

V-  Columbia  &c.  Co. 

43 

Lea  V.  Polk  County  Copper  Co. 

40 

V.  Davenport 

290 

Leach  v.  Leach 

550 

V.  Dunton 

305 

V.  Simpson 

161,  227 

V.  Leonard 

650 

V.  Thomas 

390 

V.  Vredenburg 

268 

Leader  v.  Barry 

107,  493 

Leport  V.  Todd 

41 

Leake  v.  Marquis  of  Westmeath 

511 

Leppla  V.  Minn.  Trib.  Co. 

SM 

Learmouth,  Ex  parte 

166 

Lernerd  v.  Morrill 

301 

Learned  v.  Bryant 

207 

Lesher  v.  Levan 

572 

V.  Hall 

51a,  323 

Leslie  v.  De  la  Torre 

281 

V.  Tillotson 

198 

Lester  v.  Jenkins 

521 

Leathes  v.  Newitt 

138 

V.  State 

229 

Leavitt  v.  Baker 

323 

Lethulier's  Case 

292 

LeBaron  v.  Crombie 

163 

Levers  v.  Van  Buskirk 

244 

Lechmere  v.  Fletcher 

539,  539a 

Levi  V.  Essex 

400 

Leconfield  v.  Lonsdale 

46 

V.  Mylne 

49 

Ledford  v.  Vandyke 

565 

Levison  v.  State 

218 

Ledgard  v.  Thompson 

569a 

Levy  V.  Cadet 

112 

Lee  V.  Alexander 

566 

V.  Merrill 

268 

V.  An  gas 

309 

V.  Pope 

245 

V.  Birrell 

248 

V.  State 

5 

V.  Brown 

187 

Lewes'  Trusts,  In  re 

41,48 

V.  Dick 

283 

Lewis  V.  Adams 

189 

V.  Gansel 

372,  375 

V.  Boston 

528 

V.  Howard,  &c.  Co. 

281 

V.  Brewster 

804 

V.  Kilburn 

101 

V.  Clerges 

164 

V.  Meecock 

508 

V.  Gray 

284a 

V.  Pain 

261,  291 

V.  Hadraon 

87 

Lee's  Case 

449,  461 

V.  Harris 

6 

Leech  v.  Armitage 

75 

V.  Hart 

46 

Leeds  v.  Cook 

37,  561 

V.  Hodgdon 

420 

V.  Lancashire 

283 

V.  Kramer 

116 

V.  Marine  Insurance  Co.  of 

V.  Laroway 

144 

Alexandria 

178 

V.  Lewis 

632 

Lees  V.  Hoffstadt 

81 

V.  Marshall 

484 

V.  Smith 

430 

V.  McClure                 * 

5 

Leese  v.  Clark 

88 

V.  Merritt 

329 

Leeser  v.  Boekhoff 

93,  166 

V.  Payn 

566,568 

Leete  v.  Gresham  L.  Ins.  Co. 

74 

V.  Peake 

397 

Le  Farrant  v.  Spencer 

288 

V.  Sapio 

677 

Lefavour  v.  Yandes 

112 

V.  Smith 

52 

Lefebure  v.  Worden 

117 

Ley  V.  Ballard 

672 

Iviii 


INDEX   TO   CASES   CITED. 


Section 

Ley  field's  (Dr.)  Case  568 

Libby  v.  Brown  121 

Lichtenheia  r.  Boston  &  P.  R.  R.  Co.   292 

Lightfoot  V.  Cameron  316 

V.  People  53 

Lightner  v.  Wike  163,  437 

Like  V.  Howe  196,  204,  207 

Lilly  V.  Kitzmiller  429 

V.  Waggoner  41 

Lincoln  v.  Battelle  4,  488 

V.  Saratoga,  &c.  R.  R.  Co.  440 

V.  Taunton  Copper  Manf .  Co.  52 

Lincoln  Ave.  &c.  Road  Co.  v.  Madaus 

334 

Lindauer  v.  Cummings  284 

V.  Meyberg  84 

Lindenberger  v.  Beall  40 

Lindley  v.  Lacey  284a 

Lindsey  v.  Attorney-General  6 

Linfield  v.  Old  Col.  R.  R.  Corp.  323 

Lingan  v.  Henderson  26 

Linn  v.  Buckingham  569 

Linscott  V.  Trask  34 

Linsley  v.  Lovely  305,  445 

Lipscombe  v.  Holmes  195,  205 

Lister  v.  Perryman  49 

V.  Priestley  195 

V.  State  156 

Little  V.  KeoQ  386 

i;.  Larrabee  252a 

V.  Libby  109 

V.  Thompson  78 

v.  Wingfield  45,  46 

Little's  Case  108 

Littlefield  v.  Portland  397 

V.  Rice  118,  334 

V.  Storey  173 

Littlehale  v.  Dix  323 

Littlejohn  v.  Fowler  87 

Littler  v.  Holland  302 

Livermore  v.  Aldrich  26,  266,  296 

V.  Herschell  532 

Liverpool  Steam  Co.  v.  Phenix  Ins. 

Co.  5 

Livett  V.  Wilson  46 

Livingston  v.  Arnoux  152 

V.  Bishop  633 

V.  Cox  166 

V.  Kiersted  365 

V.  Livingston  46 

V.  Tenbroeck  293 

Llewellyn  v.  Winckworth  53 

Lloyd  V.  Lynch  212 

V.  Passingham  460 

V.  Sandilands  38 

V.  Spillett  266 

V.  Thompson  445 

V.  Willan  27,  184 

V.  Williams  358 

Loath  V.  DriscoU  46 

Lobb  V.  Stanley  285 

Lochlibo  (The)  443,444 

Locke  V.  Norborne  536 

V.  Winston  527 


Section 

35 

231 

4406 

176 

24 

243,  248 

580 

119 

192 

158 

469 

455 

561 

139 

493 

310 

118 

167,  387,  418 

53 

109,  145 

563 

462 

450 

436 

217,  220 

116,  120,  187 

331 

571 

532 

301 

112 

96 

109 

68,64 

186 

437 

323 

129 

22 

96 

40 

,  37,  65 

302 

438 

174 

301 

41 

Lorton,  Viscount  v.  E.  of  Kingston     551 
Losee  v.  Losee  126 

Lothrop  V.  Adams  51a 

V.  Blake  489 

V.  Muzzy  397 

Loud  V.  Merrill  40 

Louis  V.  Easton  329 

Louisiana  St.  Lottery  v.  Richeux         480 
Louisiana,  State  of,  ex  rel.  Hatch  v. 

City  Bank  of  N.  Orleans  474 

Louisville,  &c.  R.  R.  Co.  v.  Atkins       164 
V.  Buck  108 

V.  Falvey  102 

V.  Frawley  469 

i;.  Richardson  461 

V.  Thompson  329 

V.  Wood  13a 


Lockliart  v.  White 
Lockhart's  Case 
Lockwood  V.  Lockwood 

V.  Smith 

V.  Sturdevant 
Loder  v.  Whelpley 
Lodge  V.  Phipher 

V.  Prichard 
Lofts  V.  Hudson 
Logan  V.  State 
Logansport  &c.  Co.  v.  Heil 
Lohman  v.  People 
Lombardo  v.  Ferguson 
London  v.  Clerke 

V.  Lynn 
Lonergan  v.  Royal  Ex.  Ass. 

V.  Whitehead 
Long  V.  Bailie 

V.  Barrett 

V.  Colton 

V,  Drew 

V.  Hitchcock 

V.  Lamkin 

V.  Regen 
Long's  Case 
Longenecker  v.  Hyde 
Look  V.  Bradley 
Loomis  V.  Bedel 

V.  Green 

V.  Jackson 

V.  Loomis 

V.  Wadham 
Loos  V.  Wilkinson 
Lopes  V.  De  Tastet 
Lord  V.  Bigelow 

V.  Colvin 

V.  Moore 
Lord  Dunraven  v.  Llewellyn 
Lord  Feversham  v.  Emerson 
Lord  Gosford  ;;.  Robb 
Lord  Halifax's  Case 
Lord  Melville's  Case 
Lord  Milton  v.  Edgworth 
Lord  Talbot  v.  Cusack 
Loring  v.  Brackett 

V.  Norton 

V.  Steineman 


INDEX   TO   CASES   CITED. 


lix 


Section 

Sc 

•ction 

Louisville,  &c.  R.  K.  Co.  v. 

Wright 

192 

Lyons  v.  Gregory 

84 

Lovebridge  v.  Botiiam 

212 

V.  Ward 

186 

Lovejoy  v.  Lovett 

290 

Ly  tie  V.  Bond 

329 

Lovell  V.  Payne 

79 

Loving  V.  Warren  County 

484 

Low  V.  Mitchell 

54 

451 

M. 

V.  IVrkius 

175 

Low's  Case 

252 

Maberley  v.  Robins 

6 

Low's  Estate 

254 

337 

Maby  v.  Shepherd 

69 

Lowber  v.  Sha-w 

39y 

416 

Macaulay  v.  Shackell 

320 

Lowd  V.  Bowers 

322 

Macbride  v.  Macbride             451, 

456 

458 

Lowden  v.  Watson 

97 

Macey  v.  Titcombe 

5 

Lowe  V.  Boteler 

174 

Mackell  v.  Winter 

288 

i;.  JoUiffe 

384, 

443 

Mackenzie  v.  Yeo                  244, 

260a 

341 

V.  Lord  Huntingtower 

301 

Mackintosh  v.  Marshall 

198 

V.  Lowe 

434 

Madden  v.  Koester 

449 

V.  Peers 

19 

Maddison  v.  Nuttal 

189 

Lowell  V.  Daniels 

24 

Maddox  ;;.  Sullivan 

260 

381 

Lower  v.  Winters 

58 

Maesters  v.  Abraham 

114 

Lowman  v.  Aubery 

329 

Magee  v.  Mark 

382 

Lowry  v.  Cady 

84 

521 

V.  Raiguel 

190 

V.  Harris 

88 

V.  Scott 

34 

513 

Loyd  V.  Freshfield 

248 

437 

Magennis  v.  McCullogh 

265 

V.  Guibert 

5 

Magill  V.  Kauffman 

163 

332 

V.  Stretton 

392 

Magnay  v.  Knight 

87 

Lubbock  V.  Tribe 

558 

Magoun  v.  N.  E.  Ins.  Co. 

541 

Luby  V.  Commonwealth 

1.59 

Maguire  v.  Baker 

287 

V.  Hudson  R.  R.  R.  Co. 

113 

Mahurin  v.  Bickford 

505 

Lucas  V.  Bristow 

280 

Main,  In  re 

41 

V.  Cannon 

108 

V.  Newson 

409 

423 

V.  De  La  Cour 

177, 

281 

Maine  v.  Harper 

117 

V  Groning 

280 

Maine  Stage  Co.  v.  Longley 

430 

V  Nockells 

59 

Mainwaring  v.  Mytton 

401 

Luce  V.  Dorchester  Mat.  Fire  Ins.  Co 

441 

Mair,  In  re 

575 

Lucker  v.  Commonwealth 

5 

Maitland  v.  Cit.  Nat.  Bank 

469 

Ludlam,  ex  d.  Hunt 

84 

Major  V.  State 

6 

Ludlow  V.  Union  Ins.  Co. 

430 

Majoribanks  v.  Green 

109 

Lufkin  V.  Haskell 

331 

405 

Makepeace  v.  Bancroft 

801 

Luke  V.  Calhoun 

5 

Malcolm  v.  Scott 

171 

Lund  V.  Tyngsborough 

108 

Malcomson  v.  Clayton 

51 

Lunniss  v.  Row 

422 

V.  O'Dea 

143 

Lurton  v.  Gilliam 

479 

Maley  v.  Shattuck 

543 

Lush  V.  Druse 

301 

Malin  v.  Malin 

200 

Lutterell  v.  Reynell 

168,  469, 

533 

Malone  v.  B.  &  W.  R.  R.  Co. 

38a 

Lygon  V.  Strutt 

142 

Maloney  v.  Bartley 

451 

Lyle  V.  EUwood 

107 

Malony's  Case 

227 

Lyman  v.  Lyman 

207 

521 

Malpas  V.  Clements 

38 

V.  Philadelphia 

461 

Malpica  v.  McKown 

5 

V.  State  Ins.  Co. 

441 

Maltby  v.  Christie 

194 

V.  Union  R.  R.  Co. 

49 

Malton  V.  Nesbit 

440 

Lynch  v.  Benton 

306 

Man  V.  Rickets 

570 

V.  Gierke 

484 

Manby  v.  Curtis                      142 

154 

1.55 

V.  Commonwealth 

81 

Manchester  v.  Braedner 

243a 

V.  McHugo 

118 

Manchester  Bank  v.  Moore 

356 

V.  Petrie 

118 

Manchester    Iron    Manuf.    Co. 

V. 

Lynde  v.  Judd 

608 

Sweeting 

418 

Lynn  v.  Lyerle 

24 

Manchester  Mills  (The  Case  of) 

139 

Lynne,  Ex  parte 

316 

Manchester  (The) 

113 

Lyon  I'.  Ely 

323 

Mandeville  v.  Reynolds 

86 

V.  Home 

S8a 

V.  Welch 

172 

173 

V.  Lymaa 

580 

581 

V.  Wilson 

73 

V.  Lyon 

329 

Manifold  v.  Pennington 

72 

V.  Miller 

281 

Mann  v.  Godbold 

84 

V.  Reed 

265 

V.  Locke 

112 

Ix 


INDEX   TO   CASES    CITED. 


Section 

Mann  v.  Mann  296 

V.  Pearson  301 

Manners  v.  Postan  569 

Manning  v.  John  Hancock  Ins  Co.         13 

V.  Lechmere  147 

Manroe  v.  Gates  46 

Mant  V.  Mainwaring  353,  350 

Many  v.  Jagger  190 

Manzoni  v.  Douglas  49 

Marbury  v.  Madison  251 

March  v.  Commonwealth  6 

Marchioness  of  Annandale  v.  Harris      23 

Marcy  v.  Amazeen  329 

V.  Barnes  581 

V.  Stone  109 

Marianski  v.  Cairns  197 

Maria  Das  Dorias  (The)  493 

Marine  Ins.  Co.  v.  Hodgson  73 

Mariner  r.  Dyer  349 

V.  Saunders  558 

Markham  i\  Gonaston  568« 

Marks  ».  Lphee        115,  116,  149,  150,  152 

Marland  v.  Jefferson  392,  402 

Marlatt  v.  Warwick  329 

Marler  v.  State  163 

Marquand  v.  Webb  395 

Marriage  v.  Lawrence  484,  493 

Marsden  v.  Stansfield  331 

Marsh  v.  CoUnett  484, 570 

V.  Davis  110 

V.  Gold  192 

V.  Hand  82 

V.  Howe  239 

V.  Jones  165 

V  Keith  246 

V.  Marsh  334 

V.  McNair  296a 

V.  Pier  531 

Marshall  v.  Baker  303,  304 

V.  Cliff  186,  194 

V.  Gougler  666,  568 

V.  Hancock  163 

V.  Karl  329 

V.  Lynn  302,  304 

V.  Peck  329 

V.  State  213,  220,  461 

V.  Thrailkill  395 

Marshall's  Appeal  287 

Marston  v.  Downes  241 

V.  Hobbs  24 

Martendale  v.  Follett  568 

Martin  v.  Clarke  284 

V.  Cope  165 

V.  Farnham  450 

V.  Good  487 

V.  Gunby  484 

V.  Horrell  416 

V.  Hiirlburt  334 

V.  Kelly  397 

V.  Maguire  581 

V.  Martin  6,  329 

V.  NicoUs  546 

V.  Payne  489 

V.  Root  112,  174 


Section 

Martin  v.  Butt  334 

V.  Travellers'  Ins.  Co.  435 

V.  Union  Pacific  R.  R.  Co.  292 

Martin's  Case  65 

Martineau  v.  Woodland  416,  420 

Martinstein  v.  His  Creditors  118 

Marvin  ;;.  Richmond  192 

Marx  r.  People  449 

Mary  Grigg's  Case  345 

Mary  Stewart  (The)  40 

Mary  (The)  18,  541 

Mash  V.  Denshara  73 

V.  Smith  357,  360 

Mason  v.  Fuller  104 

V.  Mason  30 

v.  State  52 

Massey  v.  Colville  317 

Master  v.  Miller  173 

Masterman  v.  Judson  73 

Masters  v.  Drayton  392 

V.  Miller  565,  566,  568a 

Mather  v.  Clark  349 

V.  Goddard  87 

V.  Trinity  Church  46 

Mathes  v.  Robinson  118 

Mathews  v.  Coalter  564 

V.  Yerex  334 

Matter  of  Coleman  244,  248 

Matteson  v.  New  York,  &c.  R.R.  Co.   102 

V.  Noyes  88 

Matthew  v.  Osborne  22 

Matthews  v.  Colburn  164 

V.  Haydon  416 

i;  Houghton  513 

r.  Marchant  429 

V.  Sheehan  284 

V.  Smith  392 

r.  Tufts  317 

Matthew's  Estate  239,  241 

Matthewson  v.  Burr  461 

Mattocks  V.  Lyman  197,  201 

V.  Wheaton  310 

Maugham  v.  Hubbard  90,  436,  437 

Mauran  v.  Lamb  330,  353,  452 

Mauri  v.  Hcffernan  658 

Mauro  v.  Piatt  200 

Maverick  v.  Marvel  329 

Mawsin  v.  Hartsink  461 

Maxwell  v.  Rives  312 

May  V.  Babcock  305 

V.  Bradlee  441 

V,  Brown  63 

V.  Shuraway  816 

V.  State  168 

V.  Taylor  ISO 

Mayfield  v.  Wadsley  271 

Mayhew  v.  Gay  Head  275 

V.  Thayer  449 

Maynard  v.  Vinton  334 

Mayo  r.  Boston  &  Maine  R.  R.  Co.        49 

V.  Jones  81 

j».  Mayo  461 

V.  Wright  102 

Mayor  v.  Johnson  568 


INDEX   TO    CASES    CITED. 


Ixi 


Section 

Mayor  of  Annapolis  v.  Harwood  480 

"       "  Carmarthen  v.  Lewis  73 

"       "  Exeter  v.  Warren  45 

"       "  Kingston  v.  Horner  20,  45 

McAdams  v.  Stilwell  164 

McAdory  v.  State  221,  223 

McAIeer  v.  Horsley  469 

V.  Me  Murray  13 

McAllister's  Case  61a 

McArthur  v.  Hurlbert  443 

McBrain  v.  Fortune  417 

McBride  v.  Wallace  435 

V.  Watts  197 

McCa^ue  v.  Miller  334 

McCann  v.  Atherton  329 

V.  State  215 

McCarragher  v.  Rogers  440 

McCartee  v.  Camel  41 

McCartin  v.  McCartin  329 

V.  Traphagen  329 

McCarty  v.  Leary  54,  469 

McCausland  v.  Fleming  145 

McCausland's  Estate  329 

McClackey  v.  State  440 

McClain  v.  Com.  220 

McClane  v.  White  296a 

McCleiikan  v.  McMillan  199,  201 

McClory  v.  Wright  382 

McClure  v.  Pursell  74 

McCorkle  v.  Binns  581 

McCormick  v.  Garnett  486 

McCoy  V.  Curtice  92 

McCraw  v.  Gentry  572 

McCrea  v.  Marshall  81 

V.  Purniort  26 

McCreary  v.  Turk  82 

McCulloch  V.  Tyson  892 

McCully  V.  Malcolm  352 

McCully's  Case  65 

McCutchen  v.  McCutchen  461 

McDaniel  v.  Hughes  542 

V  State  160,  444 

McDerniott  v.  Hoffman  275 

McDonald  v.  Alden  164 

V.  Allen  163 

V.  Christie  440 

V.  Longbottora  283 

V.  Mallory  43 

V.  McCall  145 

V.  Rainor  530 

V.  Rooke  49 

McDonel  v.  State  13a 

McDonnell  v.  Evans  463,  464 

McDowell  V.  Langdon  532 

V.  Simpson  41,  417 

McElmoylc  v.  Cohen  548 

McElroy  v.  Ludlura  174,  178 

McEwen  v.  Bigelow  440 

V.  Portland  34 

McFadden  v.  Ellmaker  189 

V.  Kingsbury  89 

V.  Murdock  52 

McGahey  v.  Alston  83,  92,  187 

McGarry  v.  People  329 


McGee  v.  Prouty 

V.  Scott 

V.  State 
McGill  V.  Rowand 
McGrath  v.  Seagrave 
McGregor  v.  Doiielly 

V.  Keily 
McGuflf  V.  State 
McGuire  v.  Maloney 

V.  People 

i;.  Say  ward 
McGuire's  Case 
McGunnagle  v.  Thornton 
Mcllroy  v.  Mcllroy 
Mclntire  v.  Levering 

V.  Oliver 
Mcintosh  V.  Lee 
Mclntyre  v.  Mancius 
Mclver  v.  Humble 

V  Walker 
McKavlin  v.  Bresslin 
McKee  v  Hicks 

V.  Nelson 

V.  People 
McKelvy  v.  DeWolfe 
McKenire  v.  Fraser 
McKenney  v.  Dingley 
McKenzie  v.  Wimberley 
McKeone  v.  Barnes 
McKinder  v.  Littlejohn 


Section 

281 

41 

372 

348 

513 

329 

40 

367,  432 

338 

367 

507 

82 

416 

430 

55 

112,  174 

5 

451 

856,  494 

301 

474 

568a 

440 

52 

323 

21,  144,  570 

53 

286 

577 

575 


Grand   St.,  &c.  R.  R. 

243,  244,  248 

462 

.     6 

"352 

577 

190 

237.  2.39 

89 

159,  432 

93 

118 

275 

239 

252 

569 

171 

279 

564 

275 

88 

46 

440 

316 

207 

91 

34 

54 

84 

305 

24 

537 

13a 

49 


McKinney   v< 
Co, 

V.  Neil 
McKinnon  v.  Bliss 
McKnight  v.  Lewis 
McKonkey  v.  Gaylord 
McLanathan  v.  Patten 
McLaughlin  v.  Gilmore 
McLean  v.  Hertzog 

V.  State 
McLear  v.  Succession  of  Hut.secker 
McLellan  r.  Crofton 

V.  Cumberland  Bank 

V.  Longfellow 

V.  Richardson 
McMahan  v.  McGrady 
McMahon  v.  Burchell 
McMaster  v.  Ins.  Co.  of  N.  America 
McMicken  v.  Beauchamp 

V.  Commonwealth 
McMinn  v.  Whelan 
McNair  v.  Hunt 
McNaghten's  Cas3 
McNeil,  Ex  parte 

V.  Phillip 
McNichols  V.  Wilson 
McQueen  o.  Great  West  R.  R.  Co. 
Mcllae  j;.  Lilly 
McReynolds  v  Lougenberger 
McTyer  v.  Steele 
McWilliams  v.  Nisly 
Mead  v.  Boston 

V.  Husted 

V.  McGraw 


Ixii 


INDEX   TO    CASES    CITED. 


Section 

Mead  v.  Robinson 

413 

V.  Steger 

26 

Meade  v.  Black 

171 

V.  McDowell 

187 

V.  Smith 

252a 

Meadows  v.  Meadows 

268 

Meagoe  r.  Simmons 

436,  449 

Meath  (Bishop  of)  v.  Ld.  Belfleld  137, 138 
V.  Marquess  of  Winchester  142,  154 
V.  Marquis  of  Winchester  240 

Mechanics'   Bank  of   Alexandria   v. 

Bank  of  Columbia  113 

Medomak  Bank  '•.  Curtis  304 

Meeker  v.  Jackson  849 

Meekins  v.  Smith  316 

Melcher  v.  Flanders  569 

Melen  v.  Andrews  197,  199,  233 

Melhuish  v.  Collier  51a,  444 

Mellish  V.  Kawdon  49 

V   Richardson  73 

Melville's  (Ld.  Case)  6, 37, 65, 170, 234, 482 

Melvin  y   BuUard  52,  109 

V.  Whiting  17,  164,  310 

V.  Prop's  of  Locks,  &c.  46 

Merced  Water  Co.  v.  Cowles  6 

Mercer  v.  Sparks  34 

V.  Whall  76 

V.  Wise  207 

Merchant's  Bank  v.  Cook  832 

V.  Glendon  Co.  90 

V.  Spicer  430 

Merchant's  Dispatch  Co.  v.  Lejser      323 

Meredith  v  Footner  185 

V.  Gilpin  582 

Meriam  v.  Harsen  293 

Merle  v.  More  243 

Merriam  v.  Langdon  73 

V.  Middlesex  Ins.  Co  441 

Merrifield  v.  Bobbins  489 

Merrill  i;.  Blodgett  294 

V.  Dawson  5 

V.  Ithaca  &  Oswego  R.  R.  Co.        437 

Mersey  &,  Irwell  Nav.  Co.  v.  Douglas    62 

Mershon  v.  State  461 

Mertens  v.  Nottebohms  352 

Meserve  v.  Hicks  501 

Mestayer  v.  Biggs  284 

Metcalf  V.  Van  Benthuysen  558 

Metier  v.  Metier  334 

Metropolis  (Bank  of  the)  v.  Jones        385 

Metters  v.  Brown  34,  179 

Metzger's  Case  552 

Metzner  v.  Bolton  66 

Mevey  v.  Matthews  356 

Mexico  &  S.  A.  Co.,  In  re  451 

Meyer  v.  Casey  284 

V.  Huneke  565 

V.  Roth  163 

V.  Sefton  93 

Meynell's  Case  221 

Michael  v.  Foil  241 

Michaels  v.  Shaw  521 

Michener  v.  Lloyd  86 

Michigan,  &c.  R.  R.  Co.  v.  Carrow        113 


Section 

Mickle  V.  State  13a 

Middlebury  (Bank  of)  v.  Rutland        440 

Middlesex's  (Sheriff  of)  Case  6 

Middleton  v.  Brewer  205 

V.  Janverin  487 

V.  Mass  142,  144 

V.  Melton  116,  120,  147,  150,  153,  187 

Middletown  Savings  Bank  v.  Bates      333 

MifHin  v.  Bingham  118 

Milbourn  v.  Ewart  286 

Miles  V.  Loomis  678,  581 

V.  McCullough  '  316 

V.  O'Hara  165,  166 

V.  Sheward  51 

V.  United  States  13a 

Milford  V.  Worcester  484 

Millar  v.  Heinrick  487 

Millard  v.  Truax  5 

Millay  v.  Butts  34 

Mill-Dam  Foundry  v.  Hovey  333 

Miller  v.  Baker  271 

V.  Bingham  190 

V.  Butterfield  275 

V.  Cook  444 

V.  Covert  532 

V.  Falconer  396,  417 

V.  Feenane  109 

V.  Gilleland  568,  568a 

V.  Goodwin  304 

V  Hale  513 
V.  Irvine  268 
V.  Mariner's  Ch.  95,  333,  422 
V.  McQuerry  5 
V.  Montgomery  329 
V.  Motter  329 
i;.  Mut.  Ben.  L.  Ins.  Co.  441 
V.  Russell  163 
V.  Shay  118 
V.  Smith  450 
V.  Stevens  280 
V.  Travers  288,  289,  290,  291,  297,  301 
V.  Wild  Cat,  &c.  Co.  90 
V.  Williams  205 
V.  Wood  191 

Miller's  Case  440 

Milliken  v.  Coombs  269 

Millman  v.  Tucker  457 

Mills  V.  Barber  74 

V.  Dennis  179 

V.  Duryee  504 

V.  Gore  361 

V.  Lee  356 

V.  Mayor  46 

V.  Oddy  75.  237,  241 

V.  Twist  572 

V.  Wyman  304 

Milne  v.  Leisler  108 

Milnor  v.  Tillotson  83 

Miltimore  v.  Miltimore  86 

Milton  (Lord)  v.  Edg worth  302 

Milton  V.  Hunter  108,  174 

Milward  v.  Forbes  193 

V.  Hallett  416 

V  Ingram  302 


INDEX   TO   CASES    CITED. 


Ixiii 


Section 

Section 

Milwaukee,  &c.  R.  R.  Co.  v 

Kellogg 

441 

Mooney  v.  Kennet 

5 

Mima  Queen  v.  Hepburn 

99 

1^4 

125 

Moons  v.  Di;  Bernales 

550 

Minis  V.  Swartz 

5 

Moore  r.  Griffin 

405 

Miner  v.  People 

334 

V.  Hitchcock 

96,  388 

Minet  v.  Gibsoa 

53 

V.  King 

272 

V.  Morgan 

240 

V.  Moore 

166,  334 

Minns  v.  Smith 

463 

V.  Pearson 

163 

Minor  v.  Meclianics'  Bank 

of  Alex- 

V.  People 

450,  455 

andria 

356 

V.  Salter 

568 

V.  Tillotson 

8 

2,84 

V  Smith 

199 

Minton's  Case 

65 

V.  Terrell 

240 

Mints  V.  Betliil 

93 

V.  U.  S. 

578 

Mish  V.  Wood 

440 

V.  Wright 

201,  329 

Mishler  v.  Baumgardner 

386 

Moore's  Case 

227,  484 

Mitchell  V.  Belknap 

118 

Moorhotise  v.  De  Passou 

421 

V.  Clark 

118 

More  V.  Watts 

533 

V.  Judge 

317 

Moreland  v   Lawrence 

461 

V.  Kingman 

284 

Morewood  v.  Wood          58,  128, 

130,  136, 

V.  Mitchell 

421 

137 

145,  578 

V.  Bellman 

468 

Morgan  v.  Barker 

532 

V.  Williams 

49 

V.  Brydges 

445 

V.  Wixon 

317 

V.  Burrows 

290 

Mitchinson  v.  Cross 

329 

V.  Frees 

449 

Mitchum  v.  State 

108 

V.  Griffith 

284a 

Mobile,  &c.  R.  R.  Co.  v.  Wh 

itney 

5 

V.  Morgan 

101,  289 

Mobile  (Bank  of)  v.  Coleman 

281 

V.  People 

88 

Mobile  Sav.  Bank  v.  McDonnell 

829 

V.  Thorne 

623 

Mobley  v.  Hamit 

461 

Moriarty  v.  Lon.  C.  &  D.  R.  R.  Co. 

37,  196 

Mockbee  v.  Gardner 

398 

Morish  v.  Foote 

394,  396 

Modawell  v.  Holmes 

5 

Morison  v.  Turnour 

272 

Mcehring  v.  Mitchell 

30 

Morrell  v.  Dickey 

544 

MoflSt  V.  Manes 

286 

Morrill  v.  Foster 

104 

V.  State 

363 

V.  Otis 

566 

Mohawk  Bank  v.  Atwater 

421 

V.  Titcomb 

109 

Moilliett  V.  Powell 

73 

Morris  v.  Atlantic  Av.  R.  R.  Co 

462 

Moises  V.  Thornton             58,  92, 

195, 

426 

V.  Bethell 

53 

Molesworth  v.  Sleeman 

136 

V.  Briggs 

117 

Mollett  y.  Wackerbarth 

568 

V.  Burdett 

197 

Molton  V.  Harris 

87 

V.  Callanan 

139 

Molyneaux  v.  Collier 

192 

V.  Daubigny 

409 

Monahan  v.  Worcester 

55a 

V.  Davidson 

5 

Monday  v.  State 

108 

V.  Davies 

28,81 

Monkton  v.  Att'y-Gen.  103, 

104, 

105, 

131, 

V.  East  Haven 

441 

133, 

134, 

135 

V.  Harmer 

497 

Monongahela  Water  Co,  v.  Stewartson  445 

V.  Hauser 

562 

Monro  v.  De  Chemant 

27 

V.  Keyes 

532 

Monroe  v.  Berens 

275 

V.  Lotan 

76 

V.  Cooper 

81 

V.  Miller 

209 

V.  Tvvistleton 

254 

337 

V.  Morris 

243,  248 

Monroe  (Bank  of)  v.  Culver 

115 

V.  Nixon 

78,  296a 

V  Field 

113 

V.  Patchin 

506 

Montee  v.  Commonwealth 

49 

V.  Pugh 

521 

Montgomery  v.  Bevans 

41 

V.  Vanderen 

564 

V  Deeley 

5 

V.  Wadsworth 

673 

V.  Ohio 

49 

165 

Morrisey  v.  Ingham 

102 

V.  Pickering 

238 

Morrison  v.  Chapin 

437 

r.  Ricliardson 

205 

V.  Kelly 

471 

V,  State 

156, 

158, 

mia 

V.  Lennard 

366 

Monticello  v.  Bryant 

6 

V.  Porter 

581 

Moody  0.  King 

356 

v^Woolson 

19 

V.  Rowell          435,  445, 

447, 

448, 

467, 

Morse  v.  Conn.  R.  R.  Co. 

113 

577 

580 

581 

V.  Hewett 

5 

Mooers  v.  Bunker 

38 

103 

V.  Low 

329 

Mooney  v.  Howard  Ins.  Co. 

292 

295 

V.  Minn.,  etc.  R.  R.  Co. 

51a 

Ixiv 


INDEX   TO   CASES   CITED. 


Section 

Morse  v.  Potter 

118 

V.  Royal 

17» 

V.  Sliattuck 

20 

V.  Stearns 

2yu 

Morsruan  v.  Forrest 

5 

Morss  V.  Morss 

364 

Mortimer  v.  McCallan 

94, 

113,  474,  484, 
584 

V.  Mortimer 

215 

Morton  v.  Chandler 

275,  284 

V.  Tenny 

m 

Morton's  Case 

533 

Moscati  V.  Lawson 

409 

Moseley   v.  Davies 

130 

133,  135,  138 

V.  Hanford 

281 

V.  Martin 

290 

Moseley's  Adm'r  v.  Mastin 

5 

Moser  v.  Cochrane 

441 

Mosey's  Case 

231 

Mosler's  Case 

222 

Mosley  v.  Massey 

301 

Mostyn  i'.  Fabrigas 

49,  320,  488 

Mott  V.  Dawson 

13a 

V.  Doughty 

572,  575 

V.  Hicks 

423 

Mount  V.  Bogert 

192 

V.  Larkins 

49 

Mountstephen  ?>.  Brooke 

191 

Mueller  v.  Kebhan 

189 

Muhlig  7.-.  Fiske 

275 

Muldowney  v.  III.  Central  R.  H.  440 
Mulliado  V.  Brooklyn,  &c.  R.  R.  Co.      13a 

Mulhall  V.  Keenan  115 

Muller  V.  Morris  489 
Mulry  V.  Mohawk  Valley  Ins.  Co.       441 

Mulvey's  Case  227 

Mumford  v.  Gething  283 

Munde  v.  Lambie  275 

Munderson  v.  Reeve  174 

Munn  V.  Bnrch  5 
Munro  v.  De  Chemant                      27,  207 

V.  Merchant  46 

Munroe  r.  Gates  46 

V.  Perkins  303 

Munson  v.  Atwood  13a 

Murdock  r.  Union  Bank  38 

Murphy  v.  Collins  43 
V.  Commonwealth                    254,  449 

V.  Hendricks  6 

V.  New  York,  &c.  R.  R.  Co.  102 

V.  Orr  41 

V.  St.  Louis  Type  Foundry  171 

Murray,  in  re  30 

V.  Buchanan  558 

V.  Carrett  558 

V.  Coster  192 

V.  Elston  309 

V.  Gregory  96 

V.  House  427 
w.  Judah                                      •»    430 

V.  Lord  Stair  284a 

V.  Marsh  430 
V.  Milner                    103,  104,  100,  107 

V.  Murray  35 


Section 

Murray  v.  New  York  L.  Ins.  Co.  80 

V.  Shadwcll  361 

V.  Toland  197 

Musgrave  v  Emerson  150 

Mussey  v.  Beecher  114 

V.  Curtis  296a 

Musson  V.  Fales  379 

Mut.  Ben.  L.  Ins.  Co.  v.  Tisdale  550 

Myatt  V.  Walker  81 

Myers  v.  Baker  200 

V  Toscan  581 

V.  Vanderbilt  272 

Myrick  v.  Dame  281 

N, 

Nash  V.  Gilkeson  54,  55 

V.  Hall  78 

Nason  r.  Jordan  84 

Nass  ••.  Vanswearingen  452 

Nat.  Bank  v.  Nat  Bank  248 
Nat.   Bank  of  St.  Charles  v.   De 

Bernales  203 

Nat.  Trust  Co.  v.  Gleason  376 

Nat.  Ulster  Co.  Bank  v.  Madden  118 

Natchbolt  v.  Porter  265 

Nathan  v.  Jacob  558 

Naughton  v.  Stagg  440 

Nay  V.  Curley  329 

Naylor  v.  Semmes  452 

Nayson  v.  Thatcher  333 

Neaderhouser  v.  State  5 

Neal  V.  Fry  497 

I'.  Wilding  104 

Neale  v.  Parkin  197 

Nealley  v.  Greenough  561 

Nearpass  v.  Gilman  329 

Needham  v.  Law  333 

V.  Smith  421 

Neelson  v.  Sanborne  268 

Neil  V.  Cheves  304 

V.  Neil  272 

Neile  v.  Jakle  197 

Neilson  v.  McDonald  361 

Nelius  V.  Brickell  572 

Nellis  V.  McCarn  440 

Nelson  v.  Hall  301 

V.  Patrick               .  49 

V.  State  432,  462 

V.  The  United  States  323 

V.  Whittall  575 

Nettles,  i?a:  parte  158 

Neubrandt  v.  State  34 

Newbern  Episc.  Church  v.  Newborn 

Acad.  21 

Newbolt  ('.  Pryce  291 

Newburgh  v.  Newburgh  301 
Newburg,  Bank  of,  v.  Greenville 

R.  R.  Co.  5 

Newcastle  (Duke  of)  v.  Broxtowe  129, 136 

V.  Kinderley  37 

Newcomb  i:  Drummond  509 

V.  Griswold  457 

V.  Noble  88 


INDEX   TO   CASES   CITED. 


Ixf 


Secti  in 

Newcomb  v.  Presbrey 

564 

Newell  V.  Homer 

444 

V  May  berry 

565,  568 

V.  Newton 

6 

V.  Nichols 

30 

V.  Simpkin 

474 

New  England  Bank  v.  Lewis 

530 

New  England  Glass  Co.  v.  Lovell          440 

Newhall  v.  Appleton 

292,  295 

V.  Holt 

203 

I'.  Jenkins 

•      193 

Newliani  v   Haithby 

493 

New  Hampshire  F.  Ins.  Co  v 

Healey    252 

New  Hampshire,  &c.  Ins.  Co 

.   V. 

Hunt    68 

Newhaven,  &c.  Co.  v.  Goodwin 

115 

New    Haven    County    Ban 

t    (• 

Mitchell              38,  38a,  40, 

115 

,116,572 

NewliiU  V.  Ireson 

301 

Newman  v.  Atlas  Ins.  Co. 

310 

V.  Doe 

498 

V.  Jenkins 

41,  550 

V.  Stretch 

97,  108 

V.  Stiidley 

46 

New  Milford  r.  Sherman 

110 

New  Portland  v.  Kingfield 

92 

Newsam  o.  Carr 

55 

Newsom  v  Georgia  R.  R.  Co 

52 

Newton  v.  Belcher               37 

,97, 

206,  207 

V  Berresford 

240 

V.  Fay 

296a 

V.  Harland 

31U 

V.  Harris 

450,  455 

V.  Higgins 

118 

V,  Liddiard 

204, 

206,  207 

I'.  Mut  Ben.  Life  Ins.  Co. 

108 

Newton  Mfg  Co.  v.  White 

113 

New  York  City  v.  Second  Av 

e.R.R. 

Co. 

118 

New  York,  &c.  R.  R.  Co.  v.  Haws           34 

Nias  V.  N.  &  E.  Ry.  Co. 

240 

Nicholls  0.  Dowding 

Ill, 

112,  177 

V.  Downes 

196,  209 

V.  Parker                    133, 

1.34, 

135,  145 

I'.  Webb                      115, 

116, 

121,  147 

Nichols  V.  Alsop 

38 

V.  Boston 

46 

V.  l^owding 

111, 

112,  177 

V.  Goldsmith 

116 

V.  Holgate 

385 

V.  Howe 

84 

I'.  Johnson 

268,  566 

V  Jones 

171 

V.  Munsell 

74 

Nicholson  v  State 

219 

V.  Withers 

118 

Nickle  V,  Baldwin 

118 

Nicto  V.  Carpenter 

46 

Nietnan  >.  Ward 

145 

Niles  V  Brackett 

421 

V.  Culver 

305 

Nipper  v.  Jones 

118 

Nix  c.  Cutting 

398 

Nixon  v.  Mayoh 

241 

V.  I'almer 

41 

VOL,,  I.—  e 

Nixon  V.  Porter 
Noble  V.  Ivennoway 

V.  Martin 

V.  McClintock 
Noding  V.  AUiston 
Noke  V.  Ingham 
Noonan  v.  State 
Norcott  V.  Orcott 
Norcutt  V.  Mottram 
Norden  v.  Williamson 
Norman  v.  Cole 
Norns  h.  Beach 

V.  Harris 

V.  Haverhill 

V.  N.  Am.  Ins.  Co. 

I'.  Stewart 
North  V.  Miles 

Northampton  Bank  v.  Whiting 
North  Brookfield  v.  Warren 
North  Lib.  (Bk.  of)  v.  Davis 
North  Hiver  Meadow  Co 

bury  Church 
Northrop  v.  Hale 

V  Wright 
Northrup  i\  Jackson 
Norton  v.  Coons 

V.  Doherty 

V.  Pettibone 
Norwood  V.  Marrow 
Nottidge  V.  Prince 
Nourse  v.  McCay 

V.  Nourse 
Novelli  V.  Rossi 
Nowell  V.  Davies 
Noyes  v.  Merrill 

V  Ward 
Nunes  v.  Perry 
Nute's  Case 
Nutt  V.  Thompson 
Nutting  V.  Page 


o. 


Sectfon 

479 

292 

163 

163 

272 

356 

199 

409 

73 

172,  354 

284 

316,  317 

43 

102 

76 

884 

180 

266 

103,  105 

435,  444 

Shrews- 

564 

103 

21 

87 

276,  281 

532 

109,  189 

409 

38a 

116 

22,99 

547 

389,  408 

189 

108,  128,  139 

440 

219,  221 

166 

108 


Oakapple  v.  Copous 

197 

Oakes  v.  Hill 

485 

498 

Oberg  V.  Breen 

121 

O'Blenis  v.  State 

55 

O'Brian  v.  Commonwealth 

163 

164 

O'Brien  (;.  Davis 

385 

V.  Frasier 

55 

V.  Gilchrist 

305 

V.  Louisiana  State  Bank 

416 

r.  People 

440 

O'Callaghan  v.  Murphy 

554 

0' Council  V.  O'Leary 

13a 

Odeli  V.  Culbert 

118 

I'.  Kopi)ee 

370 

Odenbaugii  v.  Bradford 

284 

Odiorne  v.  Bacon 

513 

V.  Wade 

331 

405 

V.  Wlnkley                   52,  421 

423 

449 

O'Donnell  v.  Clinton 

284a 

Ogden  V.  Miller 

117 

Ixvi 


INDEX  TO   CASES   CITED. 


Section 

Section 

Ogle  V.  Atkinson 

2U7 

Packard  v.  Hill                        488, 

489,  514 

V.  Talcski 

421 

V.  Richardson 

268,  385 

O'Hagan  v.  Dillon 

435,  449 

Packer  i;.  Gonsalus 

180 

Ohio,  &c.  R.  li.  Co.  V.  Ridge 

5 

Packett  V.  State 

41 

Ohio,  State  of,  v.  Hinchman 

504 

Paddock  v.  Bartlett 

275 

Olil  V.  Eagle  Ins.  Co. 

261 

V.  Salisbury 

55 

Olilsen  V.  Terrero 

435,  467 

Padgett  L\  Lawrence 

189 

Oil  City  Fuel  &  Supp.  Co.  v. 

Boundy  113 | 

Page  V.  Dana  her 

329 

O'Kelly  V.  O'Kelly 

110 

V.  Faucet 

5 

Olilnall  V.  Deakin 

21 

V.  Jlomans 

577,  581 

Okltown  (Bank  of)  v.  Houlton 

332 

V.  Monks 

284a 

Oliphant  v.  Taggart 

575 

V.  Osgood 

75,76 

Olive  V.  Guin 

503 

V.  Page 

349,  558 

Oliver  v.  Bartlett 

101 

V.  Parker 

440 

i;.  Pate 

250 

V.  Sheffield 

303 

V.  State 

156 

V.  Whiddea 

-  329 

V.  Watkins 

69 

Paget  V.  Paget 

567 

Omichund  v.  Barker        328, 

868, 

369,  371 

Pagett  V.  Curtis 

6 

O'Neill  V.  Allen 

45 

Paige  V.  Cagwin 

190 

V.  Chicago,  &c.  R.  R.  Co 

49 

V.  Hazard 

440 

Orange  v.  Springfield 

175 

Pain  V.  Beeston 

462 

Orcutt  V.  Ranney 

55 

Paine  i:  Boston 

52 

Ordronaux  v.  Chegaray 

343 

V.  Edsell 

564 

Oregon  SS.  Co.  v.  Otis 

88 

V.  Hussey 

420 

Ormsby  v.  People 

111 

V.  Mclntier 

281 

Orne  v.  Tovvnsend 

495 

V.  Schenectady 

5 

Orr  c.  Morice 

571 

V.  Tilden 

354,  469 

Orrett  v.  Corser 

147 

V.  Tucker 

96 

Ortwein  v.  Commonwealth 

81 

Palethorp  v.  Furnish 

185 

Osborn  y  London  Dock  Co. 

451 

Palmateer  v.  Tilton 

329 

V.  Thompson 

74,81 

Palmer  v.  Aldridge 

5 

V.  U.  S.  Bank 

178 

V.  Fogg 

323 

Osborne  v.  Detroit 

13a 

V.  Haight 

462 

Osburn  v.  Staley 

480 

V.  Lord  Aylesbury 

516 

Osgood  V-  Manhattan  Co. 

174,  176 

V.  Maclear 

437 

Osterhout  v.  Roberts 

533 

V.  Rowan 

317 

Oswald  V.  Legli 

39 

V.  Stephens 

272 

Otterson  v.  Hofford 

126 

V.  Stevens 

91 

Otto  V.  Trump 

504 

V.  Trower 

449 

Outram  v.  Morewood 

22 

137,  138 

Pangborn  v.  Young 

480 

145, 

164 

531,  536 

Panton  v.  Holland 

60,64 

Ovenston  v.  Wilson 

573a,  577 

V.  Williams 

49 

Over  V.  Blackstone 

358 

Pape  I'.  Wright 

461 

Overton  v.  State 

334 

Papendick  v.  Bridgwater 

147 

Owen  V.  Bartholomew 

301 

Parent  v.  Walmsly's  Adm'rs 

5 

V.  Boyle 

485 

Paris  V.  Hughes 

361 

V.  Flack 

196 

Park  V.  Mears 

572 

V.  Mann 

420 

Parke  v.  Bird 

558 

V.  Warburton 

252a 

V.  Smith 

385 

Owens  V.  CoUinson 

402 

Parker  v.  B.  &  H.  Steamboat  Co 

440 

Owings  V.  Beall 

519 

V.  Carter 

239,  241 

V.  Henderson 

118 

I'.  Green 

113 

V.  Hull 

5,6 

490,  519 

V.  Grout 

190 

0.  Low 

112 

173, 174 

V.  Hardy 

2 

V.  Speed 

389,  484 

V.  Haskins 

572 

V.  Wyant 

86 

V.  Hill 

568a 

Oxenden  v.  Chichester 

291,  301 

I'.  Mc William 

432 

Oxford  Iron  Co.  v.  Spradley 

329 

V.  Merrill 
V.  Mitchell 
V.  Morrell 

112 
331,  405 

178 

P. 

V.  Palmer 
I'.  Staniland 

49,66 
271 

Pacific  Pneumatic  Gas  Co.  v. 

Wheelock  489 

V.  Stiles 

440 

Pacific  R.  R.  Co.  v.  Governo 

r 

480 

V.  Vincent 

402 

INDEX   TO    CASES    CITED. 


Ixvii 


Section 

Parker  i-.  Yates  243 

Parkhurst  v.  Berdell  ^23 

V.  Lowten  451,  456,  459 

V.  Van  Cortlandt  288 

Parkin  v.  Moon  434 

Parkins  v.  Hawkshaw  186,  239 

Parks  V.  Boston  75 

V.  Dunkle  558 

V.  Eilge  '3 

V.  Gen.  Ins.  Assur.  Co.  288 

Parrott  v.  Tliacher  260rt 

Parry  v.  Fairlmrst  73 

Parsons  v.  Copeland  195,  527a 

V.  Huff  322 

i;.  Pureell  96 

V  Tliornton  286 

Partridge  v.  Coates  560 

Patapsco  Ins.  Co.  v.  Southgate  323 

Patch  V.  Boston  51a 

Patrick  v.  Pote  49 

Patten  v.  Moor  239 

Patterson  v.  Choate  12,  174 

I'.  Gaines  28 

V.  S  C.  R.  R.  Co.  108 

V.  Tucker  437 

V.  Wilson  275 

V.  Winn  349 

Patteshall  v.  Turford  115,  120 

Patton  V.  Ash  38 

V.  Craig  116 

V.  Goldsborough  180 

V.  Ryan  117 

V.  Wilson  387 

Paul  V.  Meek  97 

Paulette  v.  Brown  49 

Paull  V.  Brown  389,  408 

Pavey  v.  Pavey  581 

Pawaschick,  The  487,  488 

Pax  ton  V.  Douglass  451 

Payne  v.  42d  St.  R.  R.  Co.  192 

U.Hodge  118 

V.  Ibbotson  437 

V.  Rogers  172,  173 

V.  State  159,  462 

V.  Tread  well  5 

V.  Troy,  &c.  R.  R.  Co.  49 

Payson  v.  Good  191 

V.  Lamson  285 

Peabody  v.  Denton  558 

Peaceable  v.  Keep  429 

V.  Watson  109,  147 

Peacock  v.  Harris  195 

Peak  V.  State  158 

Pearce  v.  Gray  528 

V.  Hooper  671 

Pearcey  v.  Fleming  430 

Pearse  v.  Pearse  240 

Pearson  v.  Coles  75 

V.  Cox  49 

V.  Fletcher  246 

V.  Le  Maitre  53 

V.  McDaniel  577 

V.  Pearson  104 

Pease  v.  Hirst  174 


Section 

Pease  v.  Peck  480 

Peaslee  v.  Robbins  42 

V.  Ross  44 

Peat's  Case  339 

Peck  V.  Clark  109 

V.  Parchen  88 

Pederson  v.  Stoffles  388 

Pedler  v.  Paige  572 

Pedley  v.  Wellesley  336,  340 

Peele  v.  Merch.  Ins.  Co.  197 

Pect  V.  Dougherty  384 

Pegram  v.  Isabell  103 

Peile  V.  Stoddart  240 

Peirce  v.  Butler  399,  401 

Peisch  V.  Dickson  280,  288 

Pejepscot  Prop's  v.  Ransom  20,  46 

Pelamourges  v.  Clark  440 

Pell  V.  Ball  30 

V.  Pell  356 

Pelletreau  v.  Jackson  22,  101 

Pelzer  v.  Cranston  118 

Pember  v.  Congdon  329 

V.  Mathers  260 

Pender  v.  Fobes  281 

Peiidery  v.  Crescent,  &c.  Ins.  Co.  87 

Pendock  v.  Mackinder  372,  373 

Penn  v.  Bibby                                •  584 

V.  Oglesby  329 

Pennell  v.  Meyer  201 

Penniman  v.  Hartshorn  268 

V.  Hill  432 

Pennock  v-  McCormick  296a 

Pennsylvania  v.  Bell  49 

V.  Farrel  414 

Pennsylvania,  Bank  of  v.  Haldemand  581 

Penn.  R.  K.  v.  Bunnell  440 

V.  Lvons  108 

Penn.  R.  R.  Co.  v.  Righter  49 

Penny  v.  Brink  310 

V.  Porter  58,66 

Penny  Pot  Landing  v.  Philadelphia      145 

Penobscot  Boom  Corp.  v.  Lamson        563 

Penobscot,  &c.  R.  R.  Co.  v.  Bartlett     489 

Penrose  v.  Griffith  ,      23 

Penruddock  c  Hammond  240 

People  V.  Abbott  159 

V.  Ah  Chung  13 

V.  Ah  Dat  158 

V.  Ah  Fat  469 

V.  Ah  Sing  34 

V.  Alviso  334 

V.  Anderson  82,  334 

V.  Atkinson  243 

V.  Augsbury  440 

V.  Barber  440 

V.  Barker  219 

V.  Barrie  220 

V.  Bell  449 

V  Bentley  445 

V.  Bill  363 

V.  Bishop  445 

V.  Hlakeley  458 

V.  Briggs  13a 

V.  Brotherton  81 


Ixviii 


INDEX   TO   CASES   CITED. 


People  V.  Brown 
V.  Buddensieck 
V.  Busliton 
V.  Callaghan 
V.  Carpenter 
V.  Casey 
V.  Chapleau 
V.  Chegaray 
V.  Chin  Mook  Sow 
V.  Conroy 
V.  Costello 
V.  Cotta 
V.  Cox 
V.  Davis 
V.  Dean 
V.  Devine 
V.  Devlin 
V-  Dimick 
V.  Dowling 
^    V.  Doyell 
V.  Driscoll 
V.  Eastwood 
V.  English 
V.  Everhardt 
V.  Fong  Ah  Sing 
V,  Franklin 
V.  Gallagher 
V.  Garbutt 
V.  Gates 
V.  Gay 
V.  Gehraele 
V.  Gelabert 
V.  Gibbons 
V.  Glenn 

V  Gordon 
V.  Green 

V.  Greenwall 
V.  Hennessey 
V.  Herrick 
V.  Holbrook 
V.  Hooghkerk 
V.  Hopson 
V.  Howell 
V.  Howes 
V.  Hunt 
V.  Hurley 
V.  Irving 
V.  Irwin 
V.  Jacobs 
V.  Johnson 
V.  Jones 
r.  Kelley 
V.  Kelly 
V.  Kemmler 
V.  Knapp 
V.  Lee 
V.  Lohman 

V  Mahaney 
V.  Manke 

V.  Mather 
V.  Matteson 
V.  McCrea 
V.  McElvaine 
V.  McGarren 


Section 

451 

82 

444 

581 

343 

457 

372 

343 

157,  159 

440 

380,  381 

436 

99 

156,  461 

362,  414 

163 

480 

53 

108 

469 

197 

440 

174 

53,  381 

81 

65 

248 

81 

247 

469 

108 

218 

225 

161 

118 

198,  346 

449,  462 

217 

375,  457 

89 

381 

92 

414 

219 

18 

34 

353,  452,  457 

296a 

444 

221 

53,  329 

225 

451 

248 

156,  159 

313 

407 

480 

440 

451,  454,  456,  461 

369 

102,  215 

440 

369 


Section 

People  ;;.  McGloin             .  225 

V.  McKeller  449 

V.  McLaughlin  158 

V.  McMahon  225 

V.  McNair  367 

V.  McQuade  111 

V.  Miller  249 

V.  Minck  484 

V  Mitchell  34 

V.  Mondon  225 

V.  Morrow  13 

V.  Murphy  166,  334 

V.  Ogle  381 

V.  Olmstead  159 

V.  O'Neil  372,  375 

V.  O'Sullivan  53,  102 

V.  Parton  213 

V.  Pease  378 

V.  Phillips  220,  247 

V.  Pine  49 

V.  Porter  217 

V.  Poyllon  471 

V.  Reiniiart  86 

I'.  Robinson  158,  229 

V.  Roderigas  34 

V.  Rogers  220 

V.  Safford  444 

V.  Sam  Lung  432 

V.  Sanford  157 

V.  Schryver  81 

V.  Schuyler  248 

V.  Shea  100 

V.  Sheriff  of  New  York  240,  242 

V.  Simonds  334 

V.  Smith  160 

V.  Soto  219 

V.  Spooner  580,  581 

V.  Stanley  111 

V.  Starks  455 

V.  Starne  480 

V.  Stout  248 

V.  Swetland  219 

V.  Thompson  222 

V.  Throop  474 

V.  Tiley  456 

V.  Tyler  329,  461 

V.  Vernon  101,  108 

V.  Ward  219 

V.  Ware  449 

I..  Whipple  375,  379 

V.  Williams  108 

Pepoon  V.  Jenkins  501,  505 

Pepper  v.  Barnett  577 

Peppin  V.  Solomons  51,  63 
Percival  v.  Nanson  115,  147,  152 
Perdicaris  v.  Trenton,  &c.  Bridge  Co.     _5 

Perham  v.  Raynal  174 

Perigal  v.  Nicholson  155,  421 

Perkins  v.  Perkins  81,  329 

V.  Stickney  440 

V.  Walker  631 

V.  Webster  301 

Perley  i>.  Perley  74 

Pernam  v.  Wead  301 


INDEX   TO   CASES   CITED. 


Ixix 


Section 

Section 

Perrin  v.  Noyes 

81 

Phipps  r.  Sculthorpe 

207 

Perry  v  Fleming 

429 

Phoenix  v.  Ingraham 

180,  392 

V.  Gerbcau 

200 

Piatt  V.  McCullough 

20 

V  Gibson 

445 

Pickard  v.  Bailey 

486,  514 

V.  Lovejoy 

3:]4 

V.  Sears 

204 

V.  Massey 

443 

Pickering  v.  Bp.  of  Ely 

115 

V.  New  Orleans,  &c.  R. 

R.  Co.            5 

V.  Cambridge 

108 

V.  Porter 

32<J 

V.  Dowson 

281 

V.  Simpson  M'f'g  Co. 

186 

V.  Noyes 

246 

Perry's  Case 

343 

V.  Reynolds 

189,  191 

Perryman  v.  Greenville 

5 

Pickup  V.  Thames  Ins.  Co. 

74 

V  Steggall 

427,  428 

Picton's  (Gen.)  Case 

487,  4'.)2 

Person  v   Grier 

316,  317 

Piddock  V.  Brown 

361 

Peterborougli  v.  Jaffrey 

440 

Pier  y  DufE 

18'.) 

Peterhoff,  The 

5 

Pierce  v.  Chase 

423 

Petermans  v.  Laws 

398 

V.  Goldsberry 

197 

Peters  v.  Warren  Ins.  Co. 

541,  543 

V.  Indseth 

5 

Peterson,  Ex  parte 

6 

V.  Kimball 

5 

Petlierick  v  Turner 

112 

V.  Newton 

461 

Peto  V.  Blades 

398 

V.  Parker 

288 

Petrie  v.  Benfield 

509 

V.  Roberts 

112 

Petrie's  Case 

243 

V.  Weymouth 

304 

Pettibone  v.  Derringer 

323,  352 

V   Wood 

112,  174 

Pettingill  v.  Dinsmore 

55 

Pierce's  Case 

49 

Petty  V.  Anderson 

185 

Piercy's  Case 

497 

Peverly  v.  Boston 

51a 

Pierson  v.  Hutchinson 

558 

Peyroux  v.  Howard 

6 

V.  People 

243,  248 

Peytoe's  Case 

302 

Pigot  V.  Davis 

521 

Peyton  v.  Hallett 

392 

Pigott  V.  HoUoway 

437 

Phelin  v   Kenderdine 

451 

Pike  V.  Crehore 

513 

Phelps  V.  Cutler 

80 

V.  Hayes 

109 

V.  Foot 

101 

Pile  V.  Benham 

428 

V.  Hunt 

538 

Pim  V.  Curell 

128,  139 

V.  Riley 

167,  418 

Pinkham  v.  Benton 

118 

Phene"s  Trusts,  In  re 

30,  41,  48 

Pinney  v.  Cahili 

440 

Philadelphia,  &c.  R.  R.  Cc 

.  V.  Hen- 

V  Orth 

329 

rice 

13,  49 

Pipe  V.  Steel 

356 

Philadelphia  &  Trenton  Co 

V  Stimp- 

Piper  V.  Fosher 

329 

son 

423,  445,  449 

Pitcher  v.  Barrows 

138 

Philadelphia,  W.  &  B.  R. 

R.  Co.  V. 

Pitman  v.  Maddox 

117 

Howard 

164 

Pitt  V.  Chappelow 

207 

V.  Lehman 

5 

V.  Shew 

49 

Philips  V.  Cornell 

44 

Pittam  V.  Foster 

176 

V.  Hunter 

542 

Pitton  V.  Walter 

510 

Phillip  V.  People 

53 

Pittsfield,  &c.  R.  R.  Co.  v. 

Harrison     484 

Phillips  V.  Alien 

28 

Pittsford  0.  Chittendon 

28 

V.  Berick 

632 

Pizarro,  The 

31,  37 

V.  Cornell 

551 

Planche  v.  Fletcher 

488 

V.  Earner 

445 

Plank-Road  Co.  v.  Bruce 

20 

V.  Hall 

207 

V.  Wetsel 

568a 

V.  Hudson 

139 

Plant  V.  Condit 

284 

V.  Irving 

49 

V.  McEwen 

179 

V  Kingfieid 

461 

Planters'  Bank  v.  George 

452 

V.  Marblehead 

250,  447 

Platner  v.  Platner 

189 

V.  McGrath 

329 

Plattekill  v.  New  Paltz 

331 

V.  Shaw 

70 

Plaxton  V.  Dare 

139,  143,  150 

V.  Smith 

171 

Pleasant  ;;.  State 

432 

V.  State 

111,  581 

Pleasanton  v.  Nutt 

334 

V.  Wells 

565 

Plimmer  ;;.  Sells 

185 

V.  Winburn 

227 

Plimpton  r.  Ciiamberlain 

109 

Philliskirk  v.  Pluokwell 

78 

Plumb  V.  Wliiting 

387 

Phipps  V.  Mahon 

74 

Plumer  v.  Brisco 

92,  113,  207 

V.  Martin 

334 

V.  Guthrie 

284 

V.  Pitcher 

409 

Plummer  v.  Currier 

192 

Ixx 


INDEX   TO    CASES   CITED. 


Section 

Plunkctt  V.  Cobbett  251 

Plymouth  v.  Painter  92 

Pocock  V.  Billing  190 

Poignard  v.  Smith  349 

Pole  1-.  Rogers  820 

Polliill  V.  Brown  497 

Polk  V.  Butterfield  6 

Pollard  V.  Bell  541 

V.  Louisville,  &c.  R.  R.  Co.  187 

Pollock  V.  Pollock  442,  443 

V.  Wilcox  84 

Polston  V.  See  13a 

Pomeroy  v.  Baddeley  432 

Pomeroy's  Case  81 

Pond  V.  Hartwell  420 

Ponsford  v.  O'Connor  320 

Pontifex  v.  Jolly  81 

Pool  V.  Bridges  108 

Poole  V.  Dicas  115,  116,  120 

v.  Palmer  395,  406 

V.  Richardson  440 

V.  Warren  558 

Pooler  V.  Curtiss  455 

Poor  V.  Robinson  98 

Poorman  v.  Miller  86,  109 

Pope  V.  Allen  329 

V.  Allis  171 

V.  Askew  577,  581 

Poplin  V.  Hawke  550 

Poquet  V.  North  Hero  329 

Porter  v.  Byrne  275 

V.  Cooper  608 

V.  Ferguson  108,  558 

V.  Hundred  of  Regland  248 

V.  Judson  5 

;       V.  Nelson  329 

V.  Pillsbury  322 

V.  Poquonoc  Man.  Co.  440 

V.  Seller  54 

V.  State  221,  482 

V.  Waring  5 

Portland  v.  Hill  140 

Potez  V  Glossop  38 

Pott  V.  Todliunter  304 

Potter  V.  Baker  582 

V.  Nat.  Bank  329 

V.  Sewall  296a 

V.  Ware  386 

V.  Webb  55 

Potts  V.  Everhart  109 

V.  Mayer  329 

Poulter  V.  Killingbeck  271 

Poultney  v.  Ross  118 

Povall,  Ex  parte  505 

Powel  V.  Gordon  392 

V.  Hord  394 

Powell  V.  Blackett  572 

V.  Bradbury  473,  559 

V.  Edmunds  281 

V.  Ford  577 

V.  Milburn  35 

V.  Monson  26 

V.  Monson,  &c.  Co.  266 

V.  State  462 


Powell  V.  Waters 
Power  V.  Frick 

V.  Kent 
Powers  V.  McFerran 

V.  Presgroves 

V.  Russell 

V.  Shepherd 

V.  Silberstein 

V.  Ware 
Prathcr  v.  Johnson 

V.  Palmer 
Pratt  V.  Andrews 

V.  Elkins 

V.  Goswell 

V.  Jackson 

V.  White 
Preble  v.  Preble 
Preedy  v.  Haltom 
Prell  c.  McDonald 
Prentice  v.  Achorn 
Prescott  V.  Wright 
Prescott,  In  re 
Prest  V.  Mcrcereau 
Preston  v.  Bowmar 

V  Carr 

V.  Harvey 

V.  Merceau 
Prettyman  v.  Dean 
Prevost  V.  Gratz 
Prewit  V.  Tilly 
Price  V.  Dewey 

V.  Dewhurst 

V.  Harrison 

V.  Harwood 

V-  HoUis 

V.  Littlewood 

V.  Lord  Torrington 

V.  Morris 

V.  Page 

V.  Powell 
Prichard  v.  Farrar 

V.  Powell 
Priest  V  State 
Primm  v.  Stewart 
Prince  i'.  Blackburn 

V.  Samo 

V.  Shepard 

V.  Smith 

V.  Swett 
Pringle  v.  Pringle 
Printup  V.  Mitchell 
Printz  V  Cheeney 
Pritchard  v.  Bagshawe 

V.  Brown 

V.  Draper 

V.  Foulkes 

V.  McOwen 

V.  Pritchard 

V.  Walker 
Pritchett  r.  Reynolds 
Pritt  V.  Fairclough 
Proctor  V.  Lainson 
Prouty  V.  Ruggles 
Provis  V.  Reed 


Section 
164 
581 
239 
575 
55 
74 

322,  323 

74 

566 

116,  120 
41 
54 
329 
659 
288 
118 
329 
287 
5 
284 
284 
273 
118 
301 
240 
531 

275,  281 
358 
564 

331,  430 
528 

541,  546 
559 
208 
183 
137 
116 
323 
289 
440 
523 
130 

217,  233 
41 

672,  575 
467 
420 
118 
118 
189 
113,  200,  564 
451 
203 
26,  266 
112 
243 
118 
329 
195 
329 
40,  116 
180 
322 
469 


INDEX   TO   CASES   CITED. 


Ixxi 


Section 

Pruden  v.  Alden 

510 

Prudential  Assurance  Co. 

V.  Ed 

monds  41 

Pullen  V.  Hutchinson 

5G4 

,  56y,  575 

V.  People 

335 

V.  Pullen 

ST2,  44y 

V.  Shaw 

5G4 

Pulley  17.  Hilton 

485 

Pundcrson  v.  Shaw 

118 

Purcell  V.  Macnamara 

5G, 

60,  70,  78 

Purviance  v.  Dryden 

358,  3'J5 

Putnam  v.  Bond 

290 

V.  Clark 

528 

V.  Goodall 

82,  436 

V.  Lewis 

212 

Putt  V.  Kawstern 

533 

V.  Roster 

533 

Pye's  Case 

65 

Pyke  V.  Crouch 

536 

Pytt  V.  Griffith 

672 

Q. 


Quaife  v.  Chic.  &c.  R.  R.  Co.  102 

Quarterman  v.  Cox  422 

Queen  (The)  v.  Cox  240 

V.  Muscot  257 

Queen's  (The)  Case  88,  201,  218,  2.34,  870, 

371,  462,  463,  465,  467 

Queen's  Proctor  v.  Fry  484 

Quick  V.  Quick  582 

V.  Staines  207,  210 

Quigley  v.  Turner  372 

Quiniby  v.  Buzzell  38a,  572 

V.  Wrotli  430 

Quin  V.  Nat.  Ass.  Co.  441 

V.  State  35 

Quincey  «.  Quincey  285 

Quinland  lu  Utica  61a 

Quinn  v.  Champagne  6 

V.  Commonwealth  275 


R. 


Radburn  v.  Morris  428 

Radcliff  u.  United  Ins.  Co.  479,  491 

Radcliffe  v.  Fursman  240 

Radford  v.  Mcintosh  92,  195 

Raffles  V.  Wiclielhaus  288 

Raggett  V.  Musgrave  198 

Railing  v.  Com.  150 

Railroad  Co.  v.  Durant  287 

Ralph  V.  Brown  558 

Ralston  v.  Miller  145 

Ramadge  v.  Ryan  441 

Rambert  v.  Cohen  90,  4-3(3 

Rambler  v.  Tryon  440 

Ramkissenseat  v.  Barker  371 

Ramsbottom  v.  Tunbridge  87,  89,  96 

Ramuz  v.  Crowe  558 

RanclifE  (Lord)  v.  Parkins  144 

Rand  V.  Mather  303 

Randall  v.  Gurney  316 


Randall  v.  Lynch 

V.  Parramore 

I'.  Phillips 
Randall's  Case 
Randegger  v.  Ehrhardt 
Kaiidel  v.  Chesapeake  &  Del.  Can 
Randle  v.  Blackburn 
Randolph  v.  Gordon 

V.  Loughlin 
Rands  v.  Thomas 
Rangely  v.  Webster 
Hank  v.  Shewey 
Rankin  v.  Blackwell 

V.  Hannan 

V.  Horner 

V.  Tenbrook 
Ransom  v.  Keyes 
Rapelye  v.  Prmce 
Raper  v.  Birkbeck 
Rastall  (;.  Stratton 
Ratcliff  V.  Pemberton 

V.  Planters'  Bank 

V.  Ratcliff 

V.  Wales 
Ratcliffe  v.  Chapman 
Rathbun  v.  Ross 
Ravee  v.  Farmer 
Haven  v.  Dunning 
Rawley  v.  Brown 
Rawlings  v  Chandler 
Rawlins  v.  Desborough 

V.  Hickards 
Rawls  V.  Am.  Life  Ins.  Co. 
Rawson  v.  Haigh 

V.  Knight 

V.  Plaisted 

V.  Turner 

V.  Walker 
Raymond  v.  Coffey 

V.  Long  worth 

V.  Raymond 

V.  Squire 
Rayner  v  Lee 
Haynes  v.  Bennett 
Raynham  v  Canton 
Raynor  v.  Norton 
Rea  V.  Missouri 

V.  State 
Read  v.  Brookman 

V.  Dunsmore 

V.  Passer 

V.  Sturtevant 

i\  Sutton 
Reade's  Case 
Headman  v.  Conway 
Real  V.  People 

Real  Est.  Tit.  &c.  Co.'s  App. 
Reamer  v.  Nesmith 
Rearden  v.  Minter 
Reay  v.  Richardson 
Reber  v.  Herring 
Reddick  v.  Leggat 
Rector  v.  Rector 
Redden  v.  Inman 


Co. 


Section 

205 

551 

392 

340 

189 

563 

201 

142 

581 

883 

54U 

87 

564 

329 

194 

109 

427 

523 

666 

70 

302 

568a 

507 

254,  344 

130 

86 

5.32 

356 

34 

469 

74,  441 

116 

441 

108,  110 

329 

189 

533 

281,  304 

287 

484 

'       281 

173 

87 

254 

489,  505 

436 

456 

13 

■45,  566 

73 

107,  493 

329 

508 

13,  210 

196 

•      457 

804 

288 

571 

197,  287 

440 

301 

37 

•  329 


[xxn 


INDEX   TO   CASES   CITED. 


Section 

145 

329 

329 

49 

240 

563 

427,  430 

110 

10!) 

19,  135,  137,  139,  145 

445 


Redding  v  McCubbin 
Redfield  v.  Kedfield 
Redgrave  v.  Redgrave 
Reece  i\  Righy 

V.  Trye 
Reed  v.  Auderson 
V.  Boardman 
V.  Dick 
V.  Dickey 
V.  Jacksou 
I'.  James 

V.  Kemp  568 

V.  Lamb  507,  584 

V.  N.  Y.  Cent.  R.  R.  Co.  102 

V.  Passer  86 

V.  Propr's  of  Locks,  &c.  49,  297 

V.  Rice  323 

V.  Wilson  5 

V.  Woodward  272 

Eees  V.  Overbaugh  566 

V.  Smith  74 

V.  Walters  142 

V.  Williams  572 

Reese  v.  Harris  43 

Reeside,  The  292 

Reeve  v.  Dennett  51a,  296a 

Reeves  v  Matthews  360 

V.  Slater  69 

Reffell  V.  Reffell  284 

Reformed  Dutch  Ch.  v.  Ten  Eyck       126 

Regicide's  Case  256 

Regina  v.  Adderbury  175 

V.  Appleby  199 

V.  Arnold  224,  225,  229 

V.  Attwood  220 

V.  Avery  243 

V.  Baldry  219,  220,  228 

V.  Ball  435,  444 

V.  Bannen  381 

V.  Barber  580 

V  Basingstoke  96 
V.  Bate  220,  221 
V.  Bedfordshire  130,  138 
V,  Bedingfield  108 
V.  Berriman  224,  229 
V.  Bird  166 
V.  Birkett  381 
V.  Blake  111,  233 
V.  Bond  65 
V.  Boulter  257,  257a 
V.  Boyes  380,  451 
V.  Braithwaite  257 
V.  Brightside  139 
V.  Broadhempston  38a 
V.  Burke  455 

V  Butler  218,  227 
V.  Caldwell  580 
V.  Champney  257,  259 
V.  Chapman  435 
V.  Cheverton  220,  229 
V.  Child  166 
V.  Clay  54 
V.  Cohen  28 
V.  Coote  34 


Section 

Regina  v.  Cotton 

53 

V.  Cranage 

62 

V.  Dent 

488 

V.  Dr.  Hay 

30 

V.  Duncombe 

463 

V.  Dyke 

381 

V.  Esdaile 

584 

V.  Eyre 

102 

V.  Farler 

382 

V.  Farley 

289,  241 

V.  Farr 

444 

V  Farrell 

322 

V.  Fennell 

220 

V.  Fleming 

220 

V.  Ford 

436 

V.  France 

554 

V.  Francis 

53 

V.  Garbett 

193,  225,  451 

V.  Gardiner 

257 

V.  Garner 

53,  219,  220 

V.  Gazard 

166,  249,  364 

V.  Geering 

53 

V.  Gerrans 

321 

V.  Gillis 

225 

V.  Gould 

231 

V.  Guinea 

437 

V.  Hall 

113 

V.  Hankins 

560 

V.  Harding 

220 

V.  Hare 

257o 

V.  Harris 

34 

V.  Hearn 

222,  232 

V.  Heesom 

53,  322 

V.  Hewett 

156,  222 

V.  Hey  ford 

151 

V.  Hill 

365 

V.  Hind 

156 

V   Hinks 

233,  363,  375 

V  Holdea 

462,  465 

V   Holmes 

220,  458 

V   Howell 

158 

V.  Hughes 

34,  252,  259 

V.  Inhab.  of  Kenilworth                  558 

V.  Jarvis 

220 

V  Jenkins 

158 

V  John 

28 

V.  Johnston 

224,  229 

V  Jones 

220,  241 

V.  Jordan 

28 

V.  Kinglake 

451 

V.  Kitsen 

562 

V.  Langmead 

34 

V.  Langton 

437 

V.  Laugher 

222 

V.  Luckliurst 

222 

V.  L3'ons 

363 

V.  Mainwaring 

38a 

V.  Mansfield 

28 

V.  Martin 

219 

V.  Matthews 

18 

V.  Megson 

102,  156 

V.  Milton 

130,  139 

V.  Mooney 

158 

V.  Moore 

223 

INDEX   TO   CASES    CITED. 


IXXlll 


Section 

Regina  u.  Moreau  184,  362,  537 

V.  Morse  227 
V.  Murpliy        432,  435,  445,  576,  580 

V.  Newton  92 

V.  Nicholas  367 

V.  Overton  448 

V.  Owen  220 
V.  Parker                  222,  257,  257a,  822 

V.  Peacoek  322 
V.  Perkins                                   157,  158 

V.  Pettit  224 

V.  Pliilips  28 

V.  Pliilpotts  43G 

V.  Pikesley  224 

V.  I'lumnier  166 

V.  Povey  488 

V.  Reason  220 

V.  Reeve  220 

V.  Kicliardson  250 

V.  Roberts  257 

V.  Roden  53 

V.  Shaw  257 
V.  Shellard                        462,  463,  465 

V.  Sleeman  222 

V.  Sloraan  319 

V.  Spioer  65 

V.  Stainforth  38a 

V.  Stapleton  28 

V.  Steele  158 

V.  Stewart  322 

V.  St.  George  462 

V.  St.  Mary  116 

V.  Stoke  292 

V.  Stubbs  380 

V.  Sutton  140 
V.  Taylor                   223,  449,  463,  581 

V.  Thompson  322 

V.  Torpey  28 

V.  Totness  38a 

V.  Vernon                               •  222 

V.  Yickery  83 

V.  Vincent  102 

V.  Virrier  257a 

V.  Walker  102 

V.  VVaringhara  219 

V.  Weaver  485 

V.  Wellings  322 

V.  Wheatland  259 

V.  Wheeley  226 

V.  White  13a 
V.  Williams                       335,  363,  444 

V.  Willshire  35 

V.  Wilson  321 

V.  Wood  102 

V.  Wooldale  69 
I'.  Worth                            115,  147,  150 

V.  Yates  257 

V.  Yore  343 

V.  Young  382 

Reid  V.  Battie  89 

tK  Louisiana  Lottery  111 

V.  Margison  508 

Reilly  v.  Fitzgerald  131,  133 

Reitenbach  v,  Reitenbach  233 


Section 

Remon  v.  Hayward 

280 

Renaud  v.  Abbott 

5 

Renihan  v.  Dennin 

248 

Renner  v.  Bank  of  Columbia 

84,  292 

Respublica  v.  Davis 

187 

V.  (iibbs 

459 

V.  Keating 

414 

V.  McCarty 

218,  224 

V.  Ross 

362 

Revett  V.  Brahara 

76,  434,  580 

Itevill  V.  Pettit 

54 

Hex  V.  Abraham 

109 

V.  Addis 

381 

V.  Adey 

451 

V.  Aikles 

484,  493 

V.  AUgood 

473,  475 

V.  Allison 

86 

V.  All  Saints 

38«,  342 

V.  Alnion 

36,  234 

V.  Antrobus 

138 

V.  Appleby                199, 

215,  217,  233 

V.  Arundel 

6,37 

r.  Ashton 

158,  162 

V.  Atkins 

195 

V.  Atwood 

880 

V.  Azire 

343 

V.  Babb 

474 

V.  Baker 

53,  156 

V.  Ball 

53 

V.  Barnard 

380,  459 

V.  Barnes 

195,  518 

V.  Bartlett 

199,  213,  215 

V.  Bath  wick 

342,  570 

V.  Beardmore 

319 

V.  Beavan 

403 

V.  Bell 

224,  227 

V.  Bellamy 

508 

V.  Benson 

38o,  82,  512 

V.  Bishop  of  Ely 

474 

V.  Bliss 

138 

V.  Bonner 

158,  160 

V.  Borrett 

195 

V.  Boston                  362, 

390,  414,  587 

V.  Brandreth 

111 

V.  Brangan 

471 

V.  Brasier 

367 

V.  Brewer 

244 

V.  Briggs 

52 

V.  Britton 

193 

V.  Brommick 

195 

V.  Brooke 

445 

V.  Brown 

45 

V.  Bryan 

221 

V.  Burdett 

78 

V.  Burley 

379 

r.  Callaghan 

161 

V.  Careinion 

96 

V.  Carrington 

223 

V.  Carty 

227 

V.  Castell  Careinion 

372,  375 

V.  Castleton 

558 

V.  Cator 

580 

V.  Chapman 

435 

V.  Chappel 

90,  224 

Ixxiv 


INDEX   TO    CASES    CITED. 


Rex  V.  Christie 
V.  Clapliam 
V.  Clarke 
V.  Clewes 
t;.  Cliviger 
i;.  Cole 
V.  Colley 
V.  Cook 
V.  Cooper 
V.  Cope 
V.  Cotton 
t'.  Court 
V.  Crockett 
V.  Davis 
V.  Dawber 
V.  De  Berenger 
r.  Dean  of  St. 
t;.  Deeley 

V  Derrington 
V.  Despard 
V.  Dixon 
V.  Doherty 
V.  Doran 
V.  Drummond 
r.  Dunn 
V.  Durham 
V.  Edwards 
V.  Egertou 

V  Ellis 
I'.  Emden 
V.  Enoch 
V.  Eriswell 
V.  Erith 
V.  Esop 
V.  Fagent 
V.  Fagg 
V.  Farringdon 
V.  Farrington 
V.  Fearshire 

V  Ferrers 
V.  Ferry  Frystone 
f.  Fitzgerald 
V.  Fletcher 
V.  Ford 
V.  Forsyth 
V.  Foster 
I'.  Fox 
V.  Francklin 
V.  Frederick 
V.  Fuller 
V.  Fursey 
V.  Gardner 
V.  Gay 
V.  Gibbons 
V.  Gilham 
V.  Gilroy 
V.  Gilson 
V.  Gisburn 
V.  Goodere 

V.  Gordon  (Lord  George) 
V.  Green 
V.  Greepe 
t'.  Griffin 
V.  Grim  wood 


Section 
158 
104,  498 
54,  102,  210.  372,  469 
201,  218,  221,  223 
342 
390 
432 
432 
221 
IIG 
131 
218,  219,  229 
158 


225,  373 

380 

6,491 

49 

65 

229 

382 

18,  36,  243 

343 

87 

157 

223 

380,  381 

449,  457,  463 

52 

225 

512 

219,  222 

99,  125,  138,  163,  553 

104 

34 

158,  159 

224 

21 

34 

227 

343 

125 

484,  493 

218,  363,  379 

373,  378 

479, 480 

228 

167,  418 

491 

335 

34 

84,94 

195,  374,  479 

161 

222,  223,  248 

193,  229 

459 

87 

95,  422 

432 

83,  92,  482 

225,  229 

378 

222,  232 

484 


Rex  I'.  Gully 
V.  Gutch 
V.  Harborne 
V.  Hardwick 


Section 

6 

3G,  234 

35 

112,  174,  223. 

331 

111,  250 

380,  382 

569 


Hardy 

Hargrave 

Harringworth 

Harris  231 

Harvey  34 

Hastings  380 

Hawkins  35.  80 

Haworth  661 

Hay  ward  158 

Hazy  78,  82 

Hearne  218 

Hebden  536 

Higgins  218 

Hirst  228 

.  Hodgkiss  461 

.  Hodgson  54,  458 

.  HoUister  478 

.  Holt  479.  492 

,  Hood  335 

.  Hostmen  of  Newcastle  475 

.  Hough  53 

.  Howard  83,  91,  92 

.  Howell  223 

.  Howes  221 

.  Hube  86,  96 

.  Hucks  49,  65.  160 

.  Hughes  28,  34 

.  Hulme  414 

.  Hunt  28,  84,  90,  111 

.  Hunter  49,  246 

.  Hutchinson  156 

,  Inhab.  of  Castle  Morton  96 

.  Inhab.  of  Hardwick  175 

.  Inhab.  of  Holy  Trinity  87,  96 

.  Inhab.  of  Netliertliong  333 

.  Inhab.  of  Whitley  Lower  175 

.  Inhab.  of  Woburn  175 

.  Jacobs  227 

.  Jagger  343 

.  Jarvis  78,  382 

Jenkins  222,  232 

.  Johnson  40 

.  Jones   6,  92,  218,  220, 222,  2.32,  319, 

380,  381 

.  Justices  of  Buckingham 

.  Justices  of  Surrey 

,  Kea 


;.  Kerne 
;.  King 

'}  Kingston 
').  Kirdford 
•.\  Knill 
i:  Knollys 
!'.  Lafone 
V.  Laindon 
t.'.  Leefe 
•:.  Lewis 
'J.  Lingate 
r.  Lloyd 


474 
478 
253 
195 

484,  493 

220,  223 
331 

257,  259 

6 

363 

285 

65 

225,  226,  451,  457,  458 

223 

156,  229 


INDEX   TO   CASES   CITED. 


Ixxv 


Rex  V.  Locker 

V.  Long  Buckby 

V.  Lucas 

V.  Luckup 

t'.  Luffe 

V.  Ma^ill 

i;.  Maidstone 

V.  Martin 

V.  Mayhew 

V.  Mayor  of  London 

V.  Mayor  of  York 

V.  Mead 

r.  Medley 

V.  Merceron 

V.  Mercliant  Tailors 

V.  Miller 

V.  Mills 

V.  Moore 

V.  Morgan 

V.  Morris 

v-  Morton 

V.  Mosley 

V.  Mudis 

V.  Mutineers 

V.  Neal 

V.  Neville 

V.  Noakes 

V.  Northampton 

V.  North  Petlierton 

V.  Nuneham  Courtney 

V.  Nutt 

V.  Oldroyd 

V.  Paine 

V.  Parker 

V.  Parratt 

V.  Partridge 

V.  Pearce 

V.  Pedley 

V.  Pegler 

V.  Picton 

V.  Pike 

V.  Pippett 

V.  Pitcher 

V.  Pluiner 

V  Pollard 

V.  Pountney 

V  Pratten 
V.  Pressly 
V.  Priddle 
V.  Purnell 
V.  Rainsden 
V.  Rawden 
V.  Reading 
V.  Reason 
V.  Reed 

V.  Rhodes 
V.  Richards 
V.  Tvivers 
t'.  Roberts 
V.  Roddam 
V.  Rogers 
V.  Rollins 
V.  Rook 
V.  Rookwood 


Section 

3.15,  407 

21,  38a,  46 

473 

403 

5,  28,  253,  344 

2-29 

28 

54,  484,  493 

257 

331 

536 

156,  343 

36 

193 

474 

6 

220,  222 

381 

371,  578 

512 

558 

158 

257a 

363 

381 

209 

381 

53 

104,  493 

125 

36 

442,  444 

218 

469 

222 

34,  220,  222 

52 

440 

451 

488 

157,  367 

70 

458,  460 

40,  198 

28 

222,  223 

78 

90,  228 

373 

474 

437 

87 

344,  457,  459 

156,  159,  101 

227,  228 

484,  493 

221 

224,  225,  227 

53 

312 

78 

458 

253 

461 


Rex  V. 


Section 

Rooney 

62 

Rosser 

364 

Row 

223 

Rowland 

863 

Rowley 

165 

Rudd 

335,  386,  413 

Russell  (Lord  J.) 

319,  559 

Ryton 

21 

Saddler 

311 

Saunders 

224 

Scaife 

159 

Scauimonden 

285,  305 

Searle 

440 

Serjeant 

336,  343 

Sextons 

222 

Shaw 

225,  229,  237 

Shelley 

83,  475,  478 

Shepherd 

222 

Sheriff  of  Chester 

473 

Sherman 

363 

Sliipley 

18 

Simons                     45, 

200,  224,  229 

Simpson 

222 

Slaney 

451 

Slaughter 

223 

Smith              53, 243, 

335,  473,  482, 

508,  513 

Smith  &  Homage 

224,  225 

Smithies 

215 

Spencer 

22.3,  512 

Spilsbury                158 

160,  227,  229 

Stafford 

255 

Stephens 

39 

Steptoe 

218 

St.  Martin's 

436, 437 

St.  Mary  Magdalen,  Bermond- 

sey 

333,  347 

Stone 

78 

St.  Pancras 

531,  534 

Sutton 

5,  140,491 

Swatkins 

222,  228 

Tanner 

41 

Tarrant 

90,  228 

Taylor 

222,  223 

Teal 

383,  458,  459 

Teasdale 

412 

Telicote 

228 

Thanet  (Earl  of) 

364 

Thomas 

219,  223 

Thornton               222 

225,  229,  230 

Tilly 

403 

Tower 

473 

Tubby 

225 

Turner 

78,  79,  233 

Twyning 

35,  41 

Tyler 

210,  223 

Upchurch 

222,  223 

Upper  Boddington 

2.39 

Upton  Gray 

38a 

Van  Butchell 

168,  160 

Vaughan 

432 

Verelst 

83,92 

Wade 

867 

Walker 

225 

Ixxvi 


INDEX  TO   CASES   CITED. 


Rex  V.  Walkley 
V.  Waller 
V.  Walter 
V.  Warringham 
V.  Waters 
V.  Watkinson 
V.  Watson        40,  52,  65, 
198,  250, 256,  423,  449 
V.  Webb 
V.  Weller 
V.  Wells 
V.  Westbeer 
V.  Whiston 
V.  White 
V.  Wickham 
V.  Wild 
V.  Wilde 
i;  Wilkes 
V.  Williams 
V.  Wink 
V.  Withers 
V.  Woburn 
V.  Woodcock 
r.  Woodfall 
V.  Wright 
V.  Wylie 
V.  Yewin 


se- 


330. 
156,  158, 


Rey  V.  Simpson 
Reynell  v.  Sprye 
Reyner  r.  Hall 
Reynolds  v.  Magness 

V.  Manning 

V.  Robinson 

V.  Rowley 

I'.  Staines 

V.  U.  S. 
Rhine  ;■.  Ellen 

V.  Robinson 
Rhoades  t- .  Selim 
Rhodes  v.  Ainsworth 

V.  Bunch 

V.  Pray 
Ribbans  t-.  Crickett 
Ricard  v.  Williams 
Ricardo  v.  Garcias 
Rice  V.  Austin 

1-.  N.  E.  Marine  Ins.  Co 

V.  Peet 

V.  Rice 

V.  Wilkins 
Rice,  (Succession  of) 
Rich  V.  Flanders 

V.  Jackson 

V.  Minneapolis 

V.  Topping 
Richards  r.  Bassett 

r.  Burroughs 

i;.  Frankum 

V.  Goddard 

V.  Howard 

V.  Moore 

V.  Morgan 
Richard's  App. 


Section 
218,  223 
65 
36,  227,  234 
223 
65 
245 
90,  101,  111, 
459,  460, 469 
225,  381 
227 
381 
379 
38a 
367 
285 
223,  225,  229 
6 
381 
392,  403,  412 
102 
237,  479 
331,  353,  452 
159,  161,  346 
34 
440 
53 
450,  459 
34 
288 
240 
212 
279 
120 
284,  440 
113,  246 
171 
163 
304 
165,  166 
561 
139,  405 
55 
329 
205 
17 
546 
420 
444 
284 
239 
394 
489 
177 
275,  281 
171 
399 
130,  131,  137 
118 
198 
310 
118 
108 
553 


Richardson  i'.  Allan 
V.  Anderson 
V.  Carey 
V.  Disborow 
V.  Dorr 
V.  Fell 
V  Freeman 
I'.  Hadsall 
V.  Hooper 
V.  Hunt 
V.  Learned 
V.  Milburn 
I'.  Newcomb 
I'.  Robbins 
V.  Watson 
V.  Williams 
V.  Wright 
Richardson,  In  re 
liicherson  v.  Sternburg 
Richmond  v.  Patterson 
17.  Sundburg 
V.  Thomaston 
Rickards  v.  IMurdock 
Rickets  v.  Salwey 
Rickman's  Case 
Riddle  v.  Moss 
Rideout's  Trusts,  In  re 
Ridgway  v.  Bowman 

V.  Ewbank 
Ridgway,  ( Matter  of) 
Ridley  r.  Gyde 

V.  Ridley 
Rigg  V.  Curgenven 
Riggins  V.  Brown 
Riggs  V.  Tayloe 
Right  V.  Price 
Riley  v.  Gerrish 
V.  Gregg 
V.  State 
i\  Suydam 
Rindge  v.  Breck 
Rmggold  V.  Tyson 
Rioters,  The  Case  of  the 
Ripley  i".  Babcock 
V.  Thompson 
V.  Warren 
Ripon  V.  Bittel 

V.  Davies 
Ripple  f.  Ripple 
Rishton  v.  Nesbitt 
Risk  r.  State 
Rixford  v.  Miller 
Roach  V.  Garvan 
Roath  V.  DriscoU 
RobD  V.  Hackley 

;;.  Starkey 
Robbins  v.  Moore 
V.  Otis 
V.  State 
Roberge  r.  Burnham 
Roberts  v.  Adams 
V.  Allatt 
V.  Boston 
1         V.  Briscoe 


Section 
443 
173,  487 
116,  389 
260rt 
24 
81 
333, 427 
329 
303 
387 
341 
51a,  82 
581 
84 
288 
862 
329 
40 
829 
484 
463 
108 
441 
63,72 
34,53 
402 
28 
281 
81 
30 
108,  110 
13 
200,  210 
165 
849 
272 
281 
281 
432 
185 
118 
385 
412 
81 
395 
6 
440 
245 
505,  546 
106 
13a 
41 
545 
46 
469 
560 
329 
58,68 
156 
13a 
392 
451 
51a,  440 
329 


INDEX   TO    CASES    CITED. 


Ixxvii 


Section 

Section 

Roberts  v.  Burgess 

305 

Roe  V.  Ireland 

46 

V.  i)oxon 

93 

i\  Jeffery 

130 

V.  Johnson 

275 

j;.  Lowe 

46 

V.  Lund 

329 

V.  Kawlings 

21,104 

152,  670 

V.  Medhery 

109 

V.  Reade 

46 

V.  Koberts 

109 

V.  Strong 

497 

V.  Simpson 

246 

Roelke  v.  Andrews 

189 

V.  Spencer 

5no 

Roelker,  Ex  parte 

310 

V.  State 

158 

,  159 

Roger's  Trial 

373 

V.  Tennell 

6.01 

Rogers  v.  Allen 

58,71 

130,  143 

V.  Trawiok 

392 

V.  Berry 

427 

V.  Whiting 

420 

V.  Brightman 

329 

Roberts's  Case 

221 

,222 

V.  Crain 

102 

Robertson  v.  French 

278 

V.  Custance 

562 

V.  Lynch 

58,84 

V.  Dibble 

421 

V.  Reed 

118 

V.  Moore 

533 

V.  Smitli 

427 

V.  Pitc;her 

207 

V.  Stark 

440 

V.  Ritter 

440,  581 

Robey  y.  Howard 

76 

V.  Turner 

395 

Robin  V.  King 

254 

,334 

V.  Wood 

129,  136 

Robinson  v.  Adams 

440 

Rohan  v.  Hanson 

304 

V.  Batchelder 

304 

Rohrer  v.  Morningstar 

385 

V.  Blakely 

104 

Rolf  V.  Dart 

508 

V.  Cushman 

211 

Rolfe  V.  Kolfe 

197 

V.  Dana 

365 

Rollins  V.  Dyer 

305 

V.  Davies 

320 

Romans  v.  Hay 

834 

V.  Fitchburg  R.  R.  Co. 

113 

Romertz  v.  E.  River  Nat 

Bk. 

463 

V.  Flight 

240a 

Ronkendorff  v.  Taylor 

484,  493 

V.  Gallier 

30 

Booker  v.  Perkins 

46 

V.  Gilnian 

479 

Rooks  I'.  State 

432 

V.  Hutchinson 

174 

462 

Roosa  V.  Boston  Loan  Cc 

). 

102 

V.  Jones 

543 

Roosevelt  v.  Marks 

112 

V.  Mahon 

27 

Root  V.  Fellowes 

532 

V.  Markis 

322 

V.  King 

55, 

482,  491 

V.  Nahorr 

207 

Ropps  V.  Barker 

286 

V.  Prescott 

505 

Roscoe  t).  Hale 

174 

V.  Randall 

13« 

Rose  V.  Blakemore 

451,  460 

V.  State 

461 

V.  Bryant 

121 

V.  Trull 

311 

V.  Himely 

5, 

540,  541 

V.  United  States 

260a 

292 

Roseboom  v.  Billington 

121 

V.  Yarrow 

196 

Rosenthal  v.  Walker 

40 

Robinson's  Case 

58 

Ross  V.  Anstill 

6 

Robison  v.  Swett 

108,  195 

527 

V.  Boswell 

5 

Robson  V.  Alexander 

193 

V.  Bruce 

89 

V.  Drummond 

281 

V.  Buhler 

364 

V.  Kemp 

181,  240, 

245 

V.  Espy 

282 

Roche  V.  Brooklyn  City,  etc.  R.  R.  Co 

102 

V.  Gould 

49, 160, 

425,  564 

V.  Ware 

118, 

329 

V.  Laphara 

55 

Rochester  v.  Chester 

440 

V.  Reddick 

6 

Rockwell  V.  Taylor 

108 

V.  Rhoads 

145 

Roddy  V.  Finnegan 

451 

Rotherham  i\  Green 

71 

Roden  v.  Hyde 

675 

Rotheroe  v.  Elton 

396 

Roderigas  v.  E.  River  Saving  Institu- 

Rothrock v.  Gallaglier 

163,  329 

tion 

41 

Rouch  V.  Gt.  West.  R.  R 

Co. 

108 

Rodgers  v.  State 

6 

Rouse  V.  Mohr 

114 

Rodman  v.  Forman 

70 

Rowe  V.  Brenton              150,  151, 

512,  517 

f.  Hoops 

118 

V.  Canney 

252a 

Rodriguez  v.  Tadmire 

56 

V.  Grenfel 

5 

Rodwell  V.  Phillips 

271 

V.  Hasland 

41 

V.  Redge 

35 

Rowell  V.  Fuller 

581 

Roe  V.  Archb'p  of  York 

265 

Rowland  v.  Ashby     • 

224,  227 

V.  Davis 

84 

V.  Rowland 

329 

V.  Day 

197,  201 

287 

Rowlandson  v.  Wainvvright 

84 

V.  Ferrars 

202 

Rowley  v.  Ball 

558 

Ixxviii 


INDEX   TO   CASES   CITED. 


Rowntree  v.  Jacob 

Ilowt  V.  Kile 

Royal  V.  Chandler 

Ruaii  V.  Perry 

Ruch  ('.  Rock  Island  163, 

Rucker  v.  Palsgrave 

Rudd's  Case 

Rudge  V.  Ferguson 

Rudolph  V.  Lane 

Rufer  c.  State 

Rugg  V.  Kingsmill 

Ruggles  V.  Bucknor 

Ruloff  V.  People 

Rumford  v.  Wood 

Runisey  v.  N.  Y.  &  N.  J.  Tel.  Co. 

Rundle  v.  Foster 

Rush  V.  Flick  wire 

V.  Smith 
Rushton's  Case 
Rushworth  ik  Pembroke 
Russel  V.  Werntz 
Russell  V.  Barry 

V.  Blake 


V.  Buckley 

V.  Coffin  372, 

V.  Erwin 

V.  Jackson  237,  240, 

V.  Marks 

V.  Martin 

V.  Rider 
Russian  Steam  Nav.  Co.  v.  Silva 
Rust  V.  Baker 
Rustell  V.  Macquister 
Ruston's  Case 
Rutherford  v.  Rutherford 
Ryan  v.  Couch 

V.  People 

V.  Sams 
Ryder  v.  Hathaway 
Ryerson  v.  Abington 


s. 

Sabine  v.  Strong 
Sage  V.  McAlpin 

V.  Wilcox 
SaljJinger  v.  People 
Sainthill  v.  Bound 
Salem  v.  Lynn 

V.  Williams 
Salem  Bank  v.  Gloucester  Bank 
Salisbury  v.  Clark 

V.  Connecticut 
Salmon  ?'.  Ranee 
Salte  V.  Thomas 
Salter  l-.  Applegate 
Sample  v.  Frost 
Sampson  v.  State 

V.  Yardly 
Samson  v.  Overton 
Samuels  v.  Borrowscale 
Sanborn  v.  Neilson 
Sanders  v.  Cooper 


Section  | 

•20 

581 

109,  191 

54 

165,  166 

205 

222 

392 

84 

219 

38rt 

323 

217,  329 

331 

118 

245 

402 

445 

360 

164,  55:i 

287 

303 

395 

40 

437,  469 

281 

243,  244 

46 

5 

437,  466 

292 

41 

53 

366 

272 

432 

457 

207 

46 

444 


323 

532 

268 

34 

449 

108 

208 

200,208 

284 

412 

392 

484,  493 

6,  38a 

239,  241 

231 

124 

506 

91 

'      192 

275 


Section 

Sanders  v.  Reister  102 

V.  Stokes  51  a 

Sanderson  v.  Caldwell  633 

V.  CoUman  207 

r.  Symonds  565 

Sanford  v.  Hunt  75 

V.  Raikes  287 

V.  Remington  245 

Sandilands  v.  Marsh  112 

Sandilands,  fu  re  38 
Sanford  v.  Chase                      316,  317,  318 

Sanger  v.  Merritt  485 

Sangster  v.  Mazzarredo  177 

Santissima  Trinidad,  The  4 
Sargeant  i-.  Sargeant       172,  190,  353,  354 

Sargent  v.  Adams  283,  297 

V.  Fitzpatrick  532 

V.  Hampden  239 

Sarle  v.  Arnold  440 

Sartorious  v.  State  432 

Sasscer  v.  Farmer's  Bank             •  5 

Sasser  v.  Herring  145 

Satterthwaite  v.  Powell  30 

Saunders  v.  Ferrill  572 

V.  Hendrix  338 

V.  Mills  53 

V.  Wakefield  268 

Saunderson  v.  Jackson  268 

V.  Judge  40 

V.  Piper  297 

Sauniere  v.  Wode  113 

Savage  v.  Balch  180 

V.  O'Neil  43 

V.  Smith  60 

Saveland  v.  Green  88,  200 

Sawyer  v.  Baldwin  484 

V.  Eifert  55 

V.  Maine  F.  &  Mar.  Ins.  Co.  541 

V.  Steele  92 

Sawyer,  In  re  374 

Saxton  v.  Johnson  58 

V.  Nimms  484 

Sayer  v.  Glossop  578 

r.  Wagstaff  438 

Sayles  v.  Briggs  508 

Sayre  v.  Reynolds  564 

Sayward  v.  Stevens  281 

Scaggs  V.  State  108 

Scales  V.  Jacob  112 

V.  Key  41 
Scammon  v.  Scaramon            168,  190,  314 

Scanlan  v.  Wright  571 

Schaben  v.  United  States  479 

Schack  V.  Anthony  303 

Schall  V.  Miller  167,  249 

Scharff  v.  Keener  104 

Schaser  v.  State  53,  468 

Schauber  v.  Jackson  46,  47 

Schearer  v.  Harber  163,  183 
Scheffler  v.  Minn.  &  St.  Louis  R.  R.  Co.   5 

Schell  V.  Plumb  497 

Schenck  i;.  Griffin  292 
V.  Mercer  County  Mut.  Ins.  Co.     441 

Scherer  v.  Ingerman  329 


INDEX    TO   CASES   CITED. 


Ixxix 


Section 

Schermerhorn  v.  Schermerhorn  35(5 

Schick  V.  Grote  334 
Schillinger  v.  McCann              26,  420,  421 

Schinotti  v.  Buiiistead  474 

Schlenimer  ii.  State  108 

Sclilicht  V.  State  5 
Schmidt  v.  New  York,  &c.  Ins.  Co.  13a,  54 

Schnertzell  o.  Young  506 

Schofield,  Ex  parte  451 

V.  Walker  320 

Scholes  V.  Hilton  319 
School  Furn.  Co.  v.  Warsaw  Sch.  Dist.  49, 

113 

Schooler  v.  State  99 

Schooner  Reeside  292 

Sclireger  v.  Carden  205 

Schriedly  v.  State  53 

Schroeder  v.  Chic,  &c.  R.  R.  Co.  13't 

Schubkagel  v.  Dierstein  239 

Schuchardt  v.  Aliens  51a 

SchuU  V.  Murray  329 

Schwander  v.  Birge  440 

Schwass  V.  Hershey  275 

Sconce  v.  Henderson  329 

Scorell  V.  Boxall  271 

Scotia,  The  5 

Scotland,  The  5 

Scott ;;.  Baker  89 

V.  Berkshire  Co.  Sav.  Bank  108 

V.  Blanc])ard  505 

?;.  Brigham  118 

V.  Burton  284 

V.  Clare  86,  96,  203 

V.  Cleveland  505 

V.  Hooper  370 

V.  Hull  75,  76 

V.  Jones  89 

V.  Liftord  426 

V.  Lloyd  354,  385 

V.  Marshall  180 

V.  McLellaa  891,  399,  401 

V.  People               '  158,  159 

V.  Pilkington  546 

V.  State  462 

V.  Waithraan  207,  671 

V.  Wells  416 

V.  Wood  74 

Scougull  V.  Campbell  166 

Scovill  V.  Baldwin  37 

Scribner  v.  McLaughlin  421 

Scrimshire  v.  Scrimshire  545 

Scripps  V.  Foster  248 

Scull's  App.  112 

Seaman  v.  Hogoboom  287 

Searight  v.  Craighead  112 

Searle  v.  Barrington  122 

Sears  v.  Brink  268 

V.  Dillingham  347,  409 

Seaton  v.  Benedict  205 

Seaver  v.  Bradley  392 

V.  Robinson  318 

Seavy  v.  Dearborn  436,  443 

Sebree  v.  Dorr  84,  87 

Seckler  v.  Fox  275 


Section 

Security  Ins.  Co.  v.  Fay  22 

Scddon  V.  Tutop  532 

Sedgwick  v.  Sedgwick  329 

V.  Watking  340,  343 

Seekright  v.  Bogan  349 

Segar  v.  Lufkin  329 

Seller  v.  People  28 

Seibright  v.  State  18 

Selby  V.  Hills  316 

Selden  i>.  Myers  284 

V.  Williams  295 

Self  V.  State  220 

Selfe  V.  Isaacson  432 

Sells  V.  Hoare  371 

Selwood  V.  Mildmay  289,  301 

Selwyn's  Case  30 

Senior  v.  Armytage  294 

Serchor  v.  Talbot  69 

Sergeson  v.  Sealey  556 

Serle  v.  Serle  397 

Setchel  v.  Keigwin  118 

Settle  V.  Alison  21,  506 

Sewell  V.  Baxter  304 

V.  Evans  575 

V.  Gardner  442 

V.  Stubbs  95,  97,  422 

Seymour  v.  Beach  519 

V.  Delancy  284 

V.  Strong  429 

Seymour's  (Sir  E.)  Case  84 

Shackelford  v.  State  163 

Shaddock  v.  Clifton  202 

Shaeffer  v.  Kreitzer  510 

Shafer  v.  Stonebraker  531 

Shaffner  v.  Commonwealth  53 

Shafter  v.  Evans  49 

Shailer  v.  Bunistead  174 

Shaller  v.  Brand  144 

Shamburg  v.  Commagere  385 

Shankland  v.  City  of  Washington         281 

Shannon  v.  Commonwealth  423 

Sharkey  v.  Miller  303 

Sharp  v.  Johnson  35 

V.  Sharp  581 

V.  State  53 

Sharpe  v.  Bingley  487 

V.  Lambe  560 

Shattuck  V.  State  252 

Shaughnessey  v.  Lewis  284 

Shaw  ;;.  Broom  190 

V.  Charlestown  440 

V.  Emery  461 

V.  Neville  272 

V.  Schoonover  334 

V.  State  5 

Sheafe  v.  Rowe  440 

Shean  v.  Philips  239 

Shearer  v.  State  79 

Shearman  v.  Akins  116,  120,  147 

Shedden  v.  Attorney-General  131 

V.  Patrick  104,  468 

Sheehy  v.  Mandeville  69,  639a 

Sheff  V.  Huntington  49 

Sheffield  v.  Page  284a 


Ixxx 


INDEX   TO    CAwSES    CITED. 


Section 

Shells  ;;.  West 

565 

Shelby  v.  Smith 

420 

I'.  The  Governor,  &c. 

187 

Slieklon  V.  Benhani 

116,  280 

r.  Clark 

79 

Shelley  v.  Wright 

23,26.5:^.1 

Shelling  v.  Farmer 

474 

Shelton  v.  Barbour 

164 

V.  Cocke 

112 

1-.  Deering 

568a 

V.  Livius 

271 

Shepard  v.  Palmer 

416 

Shephard  i-.  Little 

26 

Shepherd  v.  Cliewter 

212 

f.  Currie 

38 

V.  McClain 

329 

V.  Thompson 

145 

Sherburne  v.  Shaw 

268 

Slieridan  Kirwan's  Case 

90 

Sheriff  of  Middlesex's  Case 

6 

Sherman  v.  Barnes 

396 

V.  Crosby                    116, 

120,  147,  152 

V.  Gundlach 

317 

V.  Kortright 

52 

V.  Lanier 

329 

V.  Sherman 

197 

V.  Wilder 

284 

Sherratt  v.  Mountford 

290 

Sherrington's  Case 

221 

Siierwood  r.  Burr 

17 

Shields  a.  Boucher 

104 

Shires  v.  Glascock 

272 

Shirley  v.  Shirley 

268 

V.  Todd 

190 

Shirreff  r.  Wiiks 

174 

Shoemaker  v.  Benedict 

174 

r.  Kellogg 

118 

Shoenberger  v.  Hackman 

82,  84,  89 

Sliore  V.  Bedford 

239,  243,  245 

Shorey  v.  Hursey 

443 

Short  V.  Lee      83,  115,  147,  149,  150,  153, 

154,  155 
V.  Mercier  451 
V.  State  13rt 
Shortz  V.  Unangst  558 
Shott  I'.  Streatfield  101 
Shotter  v.  Friend  2{J0a 
Shotwell  V.  Harrison  5 
Shown  V.  Barr  506 
Shrewsbury  (Carpenters  of)  v.  Hay- 
ward  405 
Shrewsbury  Peerage  Case  103,  105 
Shrowders  v.  Harper  558 
Shroyer  v.  Miller  55 
SlMighart  V.  Moore  87,  309 
Shuitz  V.  State  434 
Shumway  v.  Holbrook  518 
V.  Stillman  548 
ShurtlefE  v.  Willard  421 
Shutesbury  v.  Hadley  484 
Shuttleworth  ?•.  Bravo  392 
Sibley  ?'.  Waffle  239 
Sidebottom  v.  Adkins  451 
Sidney's  Case  67ti 


Sievewright  v.  Archibald 

Sieving  v.  Seidelmeyer 
Silberman  v.  Clark 
Silk  V.  Humphrey 
Sill  V.  Reese 
Sillick  V.  Booth 
Sills  v.  Brown 


Section 
82 
334 
280 
81 
577 
30,41 
440,  537,  553 


Silver  Lake  Bank  t:  Harding  505 

Simanovilch  c.  Wood  284,  285 

Simmunds,  In  re  272 

Simmons  v.  Bradford  27,  208 

V.  Simmons  257,  381 

V.  State  414 

V.  Trumbo  5 

Simons  v.  Cook  506 

Sims  V.  Southern  Express  Co.  5 

V.  State  13 

Simpson  v.  Davis  74 

V.  Dendy  53a 

V.  Dix  290 

V.  Fogo  546 

I'.  Margitson  49,  277 

V.  Morrison  112 

V.  Norton  509 

V.  Stackhouse  564 

V.  Thoreton  479,  558 

Sims  V.  Kitchen  314 

V.  Sims  376,  558 

Sinclair  r.  Baggaley  38,  121 

V.  Eraser  546 

V.  Sinclair  545 

V.  Stevenson      275,  284,  437,  466,  560 

Singleton  v.  Barrett  90,  97 

V.  St.  Louis  Mut.  Ins.  Co.  280 

Sissons  V.  Dixon  35 

Sivenson  v.  Aiiltman  113 

Skaife  v.  Jackson  172,  173,  174,  212 

Skilbeck  v.  Garbett  40 

Skinner  v.  Brighara  5736 

V.  Perot  374 

Skipp  V.  Hooke  6 

Skipper  r.  State  443 

Skipworth  r.  Green  26 

Slack  V.  Bucliannan  192 

V.  Moss  385 

Slade  1-.  Teasdale  118 

Sladden  v.  Sergeant  463 

Slane  Peerage  Case,  The  104 

Slaney  v.  Wade  104,  133,  134,  204 

Slater  v.  Hodgson  570 

V.  Law  son  174, 176 

Slatterie  v.  Pooley  96,  203 

Slaymaker  v.  Gundacker's  Exr.  173 

V.  Wilson  577 

Sleeper  v.  Van  Middlesworth  461 

Sleght  r.  Rhinelander  280 

Sloan  '•.  Somers  165,  166 

Slocovitch  V.  Orient  Mut.  Ins.  Co.        440 

Slocura  V.  Swift  275 

Sloman  v.  Heme  180,  181 

Sluby  V.  Champlin  572,  575 

Slusser  v.  Burlington  163 

Small  V.  Leonard  532 

Smaiicombe  i'.  Bruges  181 


INDEX   TO   CASES   CITED. 


Ixxxi 


Section 

Section 

Smart  v.  TJaynor 

75 

Smith  V.  Surman 

271 

V.  Wetumpka 

5 

V.  Tarbox 

111 

Smiley  v.  Dewey 

34'J 

V.  Taylor 

63,  195 

Smith's  App. 

32!» 

V.  Tebbitt 

103 

Smitli  V.  Arnold 

268 

V.  Thompson 

300 

V.  Barker 

68 

?'.  Vincent 

176 

V.  Battens 

121 

V.  Westmoreland 

174 

V.  Beadnell 

l'J3 

V.  Whitaker 

43 

V.  Bell 

287 

V.  Whittingham 

187 

V.  Blackham 

390 

V.  Wilson 

49,  280,  292 

V.  Blagge 

506 

V.  Young 

90,  560 

V.  Blakey 

116 

Smith's  Ca.se 

235 

V.  Blandy 

201 

Smith's  Will,  In  re 

273 

V.  Brandram 

73 

Smitha  v.  Flournoy 

6 

V.  Browri 

82,  84,  305 

Smyth  V.  Jefferies 

79 

V.  Brownlow 

139 

Smythe  v.  Banks 

316 

V.  Burnett 

329 

Sneider  v.  Geiss 

348 

V.  Burnham 

171,200,214 

Snelgrove  v.  Martin 

109,  190 

V.  Burton 

275 

Snell  V.  Moses 

58 

V.  Castles 

328,  455,  456 

V.  Parsons 

329 

V.  Cent.  R.  &  E 

.Co. 

51« 

Snow  V.  Alley 

284a 

V.  Chambers 

392 

V.  Batchelder 

75,  192,  421 

r.  Coffin 

369,  370 

V.  Eastern  R.  R.  Co. 

348 

V.  Cramer 

108 

V.  Grace 

461 

V.  Crooker 

667,  508fl 

V.  Paine 

329 

V.  Groom 

30 

Snow's  Case 

49 

V.  Davies 

81 

Snowball  v.  Goodricke 

180 

V.  De  Wruitz 

190 

Snyder  v.  Nations 

366 

V.  Downs 

387,  388 

V.  Snyder 

334,  341,  434 

V.  Dunbar 

568 

V.  Wise 

504 

V.  Fell 

239 

Sociedade  Feliz,  The 

495 

V.  Fenner 

581 

Society,  &c.  v.  Wheeler 

20 

V.  Flanders 

278 

V.  Young 

46 

V.  Galloway 

301 

Solaris  V.  Melville 

888 

V  Gugerty 

440 

Solita  V.  Yarrow 

578 

V.  Jeliryes 

281 

Solomon  v.  Drescliler 

79 

V.  Knowelden 

73 

V.  Solomon 

206 

I'.  Knowlton 

41,  540 

Solomons  v.  Bank  of  England                 81 

V.  Lane 

437 

Solyer  v.  Romanet 

6 

V.  London,  &c. 

Ry.  Co. 

49 

Somers  v.  Wright 

117,  551 

V.  Lorrillard 

34 

Somerset  Mut.  F.  Ins.  Co.  v. 

Usaw.      loa 

V.  Ludlow 

112 

vSomerville  v.  State 

53 

V.  Lyon 

180 

Somes  V.  Skinner 

24 

V.  Martin 

109 

Soresby  v.  Sparrow 

349 

V.  Moore 

78 

Sorg  V.  First  &c.  Congregation             449 

V.  Morgan 

179,  436,  469 

Soulden  v.  Van  Rensslaer 

430 

V.  Nicolls 

546 

Soule's  Case 

343 

V.  No  wells 

145 

Southampton,  Mayor  of  v.  G 

raves        484 

V.  Palmer 

96 

Southard  v.  Rexford 

451,  460 

V.  People 

462 

V.  Wilson 

401,  422,  426 

V.  Powers 

109,  145 

South  Bait.  Co.  v.  Muhlbach 

329 

V.  Prager 

386,  409 

Southern  L.  Ins.  Co.  v.  Wilkinson         440 

t'.  Prewit 

145 

Southey  v.  Nash 

432 

V.  Price 

442,  444 

Southwick  V.  Hapgood 

281 

V.  Redden 

513 

V.  Southwick 

254 

V.  Russell 

145 

V.  Stephens 

89 

V.  San  ford 

117,  118,  334 

V.  Stevens 

36,  89,  234 

V.  Scudder 

185 

Souverbye  v.  Arden 

361 

V.  Simmes 

180 

Soward  v.  Leggett 

74,81 

V.  Sleap 

500 

Sowell  V.  Champion 

358 

V.  Smith 

38,41 

107,  189,  558 

Spangler  v.  Jacoby 

491 

V.  Sparrow 

351,  421 

Spargo  V.  Brown              116, 

120,  147,  171 

V.  State 

102, 

158,  367,  432 

Sparhawk  v.  BuUard 

38,  139 

V.  Stickney 

469 

Spaulding  v.  Hood 

74,  75 

VOL.  I. / 

Ixxxii 


INDEX   TO   CASES   CITED, 


Section 

Section 

Spaulding  v.  Vincent 

488 

Stanton  v.  Willson 

334 

Spear  v.  Thil.  W.  &  B,  R.  R.  Co 

49 

Staples  V.  Goodrich 

532 

V.  Richardson 

434 

Stapleton  v.  Nowell 

205 

Spears  v.  Burton 

35 

Stapylton  v.  Clough 

99. 116 

V.  Forrest 

461 

Star  Glass  Co.  v.  Morey 

551 

V.  International  Ins.  Co. 

54 

Stark  V.  Boswell 

109 

V.  Ohio 

219 

Starke  v.  People 

159 

V.  Ward' 

292 

Starkey  v.  People 

158 

Speer  v.  Coate 

145 

Starks  v.  People 

469 

V.  Plank  Road  Co. 

480 

Starkweather  v.  Lootnis 

505 

Spence  v.  Chodwick 

488 

V.  Mathews 

420 

V.  Sanders 

118 

Starrett  v.  Burkhalter 

329 

V.  Stuart 

317 

State  V.  Adams 

34 

Spenceley  v.  De  Willott 

440,  455 

V.  Ah  Cliuey' 

13a 

Spencer  v.  Billing 

93 

V.  Ah  Lee 

157 

V.  Colt 

284 

V.  Ah  Tom 

174 

V.  Curtis 

6 

V.  Allen 

580,  581 

V.  Goulding 

416 

V.  Armstrong 

334 

V.  Robbins 

329 

V.  Arnold 

13a 

V.  Roper 

41 

V.  Avery 

440 

V.  State 

233 

V.  Ayer 

252a 

V.  Thompson 

40 

V.  Bailey 

457 

V.  Traffbrd 

329 

i>.  Barker 

156 

V.  White 

443 

V.  Barrows 

379 

V.  WilHams 

521 

V.  Bartlett                 199,  451, 

502,  513 

Spicer  v.  Cooper 

280 

V.  Beal 

461 

Spiegel  V.  Hays 

457 

V.  Benner 

435,  449 

Spieres  v.  Parker 

19,78 

V.  Bennet 

34 

Spiers  v.  Clay 

26 

V.  Bernard 

334 

V.  Morris 

120 

V.  Bishop 

34 

V.  Willison 

87 

V.  Blackburn 

158,  159 

Spiller  V.  Paris  Skating  Rink  Co 

320 

V.  Bohan 

156 

Spitz's  App. 

334 

V.  Boswell 

461 

Spoltswood  V.  Weir 

577 

V.  Bowen 

6 

Sprague  v.  Litherberry 

19 

V.  Brookshire 

432 

V.  Oakes 

532 

V.  Broughton 

225 

Sprigg  V.  Moale 

41 

V.  Brown 

215 

Spring  V.  Lovett 

281 

V.  Buffington 

254 

Spring  Garden  Ins.  Co.  v.  Evans 

37 

V.  Buie 

257 

V.  Riley 

438 

V.  Burlingham 

335 

Springstein  v.  Field 

55 

V.  Byrne 

102 

Sprowl  V.  Lawrence 

5 

V.  Caffey 

70 

Spurr  V.  Pearson 

389 

V.  Cameron                  81,  156 

161,  329 

V.  Trimble 

41 

V.  Campbell 

164 

Squires  v.  Amherst 

805 

V.  Candler 

376 

Stables  v.  Eley 

208 

V.  Cardoza 

468 

Stackpole  v.  Arnold       212,  275, 

276,  281, 

V.  Carlisle 

220 

304,  305 

V.  Carr 

489,  581 

Stacy  V  Blake 

179 

V.  Carter 

254 

V.  Kemp 

305 

V.  Chamberlain 

445 

V.  Portland  Pub.  Co. 

440 

V.  Chambers 

221 

Stafford  v.  Clark 

531,  532 

V.  Cherry 

469 

V.  Rice 

385 

V.  Clinton 

581 

Stafford's  (Ld.)  Case 

235,  255 

V.  Coatney 

349 

Stafford,  Mayor  of  v.  Tooth 

333 

V.  Coffee 

252 

Stainer  i\  Droitwich 

497 

V.  Collins 

334,  436 

Stall  V.  Catskill  Bank 

387,  430 

V.  Colwell 

436 

Stanmiers  v.  Dixon 

293 

V.  Cooper 

5 

Stamper  v.  Griffin 

463 

V.  Cornish 

160 

Standage  v.  Creighton 

186 

V.  Cowan 

220 

Standen  i\  Standen 

301 

V.  Crawford 

81 

Standford  v.  Horwitz 

329 

V.  Croteau 

49 

Stanley  v.  White 

147,  197 

V.  Crowell 

79 

Stantjfeld  v.  Levy 

76 

V.  Danforth 

13a 

INDEX   TO   CASES   CITED. 


Ixxxiii 


Section 

Section 

State  V.  Daniel 

158 

State  V.  Lewis 

20,  108 

V.  Darnell 

2'23 

,  229 

V.  Litchfield 

248,  380 

V.  Davidson 

108 

,  175 

V.  Littlefield 

171,  195 

V.  Davis 

343 

,462 

V.  Lockwood 

432 

r.  Denny 

5 

V.  Lull 

436 

V.  De  Wolf 

102 

,366 

V.  Mack 

372 

V.  Dickinson 

156 

V.  Mahon 

218 

V.  Donovan 

334 

V.  Martin 

159 

V.  Drake 

220 

V.  Maxwell 

13a 

V.  Duffy 

249 

V.  McAlister 

306 

V.  Duncan 

111 

V.  McCanon 

158,  160 

V.  Dunwell 

6 

V.  McCord 

334 

V.  Elliott 

157 

V.  McDonnell 

18,49 

V.  Evans 

79 

V.  McEvoy 

158 

V.  Feltes 

215,217 

229 

V.  McKean 

382 

I'.  Ferguson 

160 

V.  McLaughlin 

462 

V.  Flanagin 

215 

V.  McManus 

372 

V.  Foley 

376 

V.  Medlicott 

158 

V.  Folwell 

53 

V.  Miller 

681 

t\  Foster 

362 

V.  Minnick 

5 

V.  Fraunberg 

161 

V.  Molier 

257 

V.  Frazier 

159,  160 

221 

V.  Moore 

41 

V.  Freeman 

252a 

V.  Morris 

5 

V.  Garvey 

219 

225 

V.  Morrison 

79 

V.  German 

217 

V.  Mortimer 

231 

V.  Glynn 

462 

V.  Moy  Looke 

488 

V.  Goyette 

5 

V.  Mullen 

374 

V.  Grace 

813 

V.  Murfreesboro 

5 

V.  Grant 

219 

V.  Murphy 

108 

V.  Gurnee 

84 

V.  Neill 

844 

V.  Guyer 

834 

V.  Nettlebush 

159 

V.  Harman 

219 

V.  Norris 

444 

V.  Harper 

156 

V.  Norwood 

13 

V.  Haynes 

99 

V.  Ober 

451 

V.  Hayward 

257 

V.  O'Brien 

440 

V.  Heaton 

18 

f.  O'Conner 

5 

V.  Heed 

257 

V.  Parish 

227 

V.  Hessenkamp 

18 

V.  Patterson    18, 

19,  74, 159, 161,  449 

V.  Hinchman 

513 

540 

456,  458 

V.  Hodge 

34,49 

V.  Peace 

156,  158 

V.  Hooker 

165 

V.  Perkins 

461 

V.  Hopkins 

432 

V.  Pettaway 

28,  344 

V.  Howard 

102 

V.  Phair 

115 

V.  Ingerson 

322 

V.  Pike 

49,  81,  440 

V.  Isham 

502 

V.  Poll 

158,  160 

V.  Jackson 

65, 

111 

V.  Powers 

6 

V.  Jacobs 

13a 

V.  Rawls 

199,  437 

V.  Jaeger 

185 

V.  Raymond 

34 

V.  Johnson 

5,  163,  164,  220, 

434 

V.  Reed 

81,  462 

V.  Jolly 

337 

V.  Reitz 

81 

V.  Jones 

81, 

221 

V.  Rhodes 

438,  441 

v.K 

451 

V.  Richart 

34 

V.  Keeler 

217 

V.  Ridgely 

375,  376 

V.  Kelly 

34 

V.  Rights 

34 

V.  Kimble 

34 

V.  Roberts 

221,  449 

V.  Kirby 

223 

V.  Roe 

469 

V.  Kline 

81 

V.  Rood 

488 

V.  Knapp 

37,  53 

I'.  Rugan 

461 

V.  Knight 

18 

V.  Ryan 

346 

V.  Knowles 

213 

V.  Sater 

461 

V.  Lanier 

461 

V.  Severson 

367 

V.  Larkin 

111 

V.  Seymour 

108 

V.  Law  home 

221 

V.  Shelton 

156 

V.  Lawrence 

329 

V.  Sherman 

5 

Ixxxiv 


INDEX   TO   CASES   CITED. 


Section 

State  V.  Shinborn  44U 
V.  Sloan  334 
V.  Smith  13fl,  18,  215 
V.  Snell  34 
V.  Soper  233 
V.  Sparrow  432 
1-.  Spencer  158 
V.  Stade  489,  505 
V.  Stanton  414 
17.  Siinson  370 
V.  Sullivan  1(51 
V.  Sutton  81 
V.  Svvayze  18 
V.  Tall  243 
V.  Tatro  229 
V.  Terrell  156 
V.  Thibeau  233 
V.  Tliomas  53,  108,  432 
V.  Tliomason  157,  159,  4G9 
V.  Tliompsou  581 
V.  Tilghtnan  49,  158,  159 
V.  Towle  322 
V.  Trivas  18 
V.  Tweeday  161 
V.  Vandergraff  225 
V.  Vincent  227 
V.  Vittum  88 
V.  Von  Sachs  220 
V.  Walker  108 
V.  Walters  53 
V  Ward  53,81,432 
V.  Watsoa  461 
V.  Way  53 
V.  Weasel  233 
V.  Welch  342 
V.  Wells  34 
V.  Wentworth  229,  451 
V.  West  218 
V.  Westfall  156 
V.  Whisenhurst  371 
V.  White  238 
V.  Wbittier  367 
V.  Wieners  13a 
V.  Williams  37,  159 
V.  Willingham  445 
V.  Wilner  41,  81 
V.  Wilson  156,  334 
V.  Wings  74 
V.  Winner  108 
V.  Witliam  451 
V.  Wood  252,  440 
V.  Woodruff  13a 
V.  Worthing  335,  363 
j;.  Worthington  218 
V.  Wrigiit  45,  462 
State  of  Ohio  v.  Hinchman  5 
St.  George  v.  St.  Margaret  28,  40 
St.  Mary's  College  v.  Attorney-Gen- 
eral 46 
Staunton  v.  Parker  248 
St.  Clair  r.  Shale  109 
Stead  V.  Heaton  150.  152 
Stearns  v.  Doe  82,  94 
V.  Gosselin  51a 


Section 

Stearns  v.  Hall 

302 

304 

V.  Hendersass 

109 

Stebbing  v.  Spicer 

33 

Stebbins  v.  Sackett 

422 

423 

Steed  V.  Oliver 

361 

Steel  V.  Prickett 

130 

Steele  v.  Clarke 

829 

V.  Etiieridge 

87 

V.  Smith 

548 

V.  Steele 

86 

V.  Stewart 

239 

V.  Worthington 

26 

Steele,  In  re. 

329 

Steen  v.  State 

334 

Steeples  v.  Newton 

461 

Steers  v.  Carwardine 

897 

Steffen  v.  Bauer 

334 

Stein  V.  Bowman 

19,  254,  334 

337 

Steinkeller  v.  Newton 

88 

438 

Steinmetz  v.  Currey 

430 

V.  Versailles  Turnpike  Co.                 6 

Stephen  v.  McCloy  108 

Stephens  ;•.  Cotterell  329 

V.  Foster  466 

V.  Vroman  200,  202 

V.  Winn  268 

Stephenson  v.  Bannister  506 

Sterling  v.  Potts  558 

Stern  i'.  R.  R.  Co.,  C.  C.  P.  Phila.        180 

Sterret  v.  Bull  117 

Stevens  v.  Haskell  275 

V.  Hay  329 

V.  McNamara  41 

V.  Miles  108 

V.  Pinney  89 

V.  Taft  20 

V.  Thacker  184 

Stevenson  v.  Hoy  84 

V.  Marony  74 

V.  Mudgett  429 

V.  Nevinson  405 

Stewart  v.  Allison  498 

V.  Cauty  49 

V.  Doughty  271 

V.  Huntingdon  Bank  332 

V.  Johnson  334,  335 

V.  Kip  389,  392,  409 

V.  Kirk  329 

V.  Say  brook  331 

Stewartson  v.  Watts  113 

St.  George  v.  St.  Margaret  28,  40 

Stier  V.  Oskaloosa  5 

Stiles  ?•.  Botkin  329 

V.  Danville  113 

V.  The  Western  Railroad  Co.  110,  113 

Still  V.  Hoste  289 

Stillwater  Turnpike  Co.  v.  Coover        441 

Stinimel  v.  Underwood  387,388 

Stinchfield  v.  Emerson  41 

Stinde  v.  Goodrich  30 

V.  Ridgwav  30 

St.  Louis  &  I.  M.  R.  R.  Co.  v.  Silver    445 

St.  Louis  &  San  Fr.  R.  R.  Co.  i-.  Weaver    5 

St.  Mary's  College  v.  Att'y-Gen.  46 


INDEX   TO   CASES   CITED. 


Ixxxv 


Sortion 

Stobartv.  Dryden  126,  156 

Stockbridge  v.  W.  Stockbridge       21,  509 

Stockdale  o.  Hansard  G 

V.  Young  558 

Stockfleth  (;.  De  Tastet  193 

Stockliam  v.  Jones  858 

V.  Stockham  284 

Stocks  ;;.  Ellis  320 

Stockton  V.  Demuth  113,  442,  443 

Stockvvcll  V.  Blarney  189 

V.  Silloway  91,  528 

Stoddanl  r.  Burton  34 

;;.  Doane  174 

Stoddart  v.  Palmer  56,  70 

Stoddert  v.  Manning  452 

Stoevcr  v.  Whitman  280 

Stokes  V.  Dawes  104,  556 

V.  Macken  5,  43 

V.  Miller  451 

i;.  People  18 

V.  State  34,  461 

V.  Stokes  115,  147 

Slokoe  V.  St.  Paul,  Minn,  &  M.  K.  R. 

Co.  241 

Stonard  v.  Dunkin  207 

Stone  V.  Bihb  356 

V.  Blackburn  421 

V.  Clark  293,  301 

v.  Covell  440 

V.  Crocker  471 

V.  Damon  550 

V.  Forsyth  518 

V-  Kiiowlton  58,  68 

V.  Metcalf  '          288 

V.  Ramsey  200 

V.  Vance  385 

V.  Varney  65 

Stone's  Case  217 

Stoneciplier  v.  Hall  329 

Stoner  v.  Devilbiss  467 

V.  Ell  IS  498 

Stoner's  Appeal  287 

Stones  V.  Byron  364,  386 

Stoop's  Case  346 

Stoops  V.  Smith  283 

Storer  v.  Batson  266 

V.  Elliot  Fire  Ins.  Co.  288 

V.  Freeman  288 

Storm  V.  United  States  450 

Storr  V.  Watson  73 

Storr  et  ul.  r.  Scott  196 

Story  ?'.  Finnis  205 

V.  Kimball  513 

V.  Saunders  390 

V  State  ]3« 

Stouffer  V.  Latshaw  284 

Stout  V.  Rassel  457 

V.  Wood  421 

Stouvenal  c  Stephens  41 

Stover  V.  People  451 

Stowe  V.  Bishop  329 

V.  Querner  560 

Stowell  ».  Moore  323 

V.  Robinson  302 


Stracy  v.  Blake 
Stradling  v.  Morgan 
Strafford  Batik  v.  Cornell 
Strait  V.  State 
Straker  v.  Graham 
Strange  v-  Dashvvood 
Stranger  v.  Searle 
Strant  v.  State 
Stratford  r.  Ames 
Straton  v.  Rastall 
Stratton  v.  Hawks 
Straublier  u.  Mohler 
Street  v.  State 
Streeter  v.  Bartlett 

V   Brecken ridge 
Strickland  v.  Hudson 
Strickler  v.  Todd 
Strode  i>.  Ma  go  wan 

V.  Mctiowan 

V.  Winchester 


Sectioa 

179 

293 

416 

231 

252a 

572 

577,  581 

231 

87 

207,  212,  305 

84 

329 

111 

569 

248 

163,  164 

17 

28 

35 

147, 266 


Strohm  v.  N.  Y.  L.  E.  &  W.  R.  R.  Co.  440 

Strong  V.  Bradley  513 

V.  Lord  329 

V  Stewart  192 
Strother  v.  Barr  87,  96 

V.  Lucas  5 

Stroud  V.  Tilton  117 

Strutt  V.  Bovingdon  531 

Stuart  ^\  Lake  423 

V.  People  34 

Stuckslager  v.  Neel  118 

Studdy  V.  Sanders  210,  507 

Stukeley  v.  Butler  60,  301 

Stump  V.  Napier  385 

Sturdy  ;;.  Arnaud  803 

Stiirge  V.  Buchanan  116,  201 

Sturgeon  *;.  Waugli  145 

Sturla  V.  Freccia  491 

Gturm  V.  Jeffree  562 

Sublett  V.  Hodges  329 

Sudlow  V.  Warshing  581 

Suffern  i'.  Butler  287 

Sullivan  v.  Hense  5 

V.  Kelly  28 

V  O'Leary  51a 
V.  State  163 

Summarsett  v.  Adamson  203 

Summers  v.  Moseley  445 

Summons  i^  vState  163 

Sumner  r.  Child  17 

V.  Sebec  484 

V.  Williams  101 

Supples  V.  Lewis  89 

Sussex  (Earl  of)  v.  Temple  189 

Sussex  Peerage  Case        99,  i04,  147,  488 

Sutton  V.  Bishop  413 

V.  Devonport  37 

V.  Kettell  305 

Suydara  v.  Jones  302 

Swain  v.  Comstock  5 

V.  Lewis  561 

Swallow  (,'.  Beaumont  58,  G6,  68 

Swan  u.  Middlesex  Co.  440 

Swasey  v.  Ames  329 


Ixxxvi 


INDEX   TO    CASES    CITED. 


Section 

Sweet  V.  Lee  282,  2'J9 

V.  Parker  329 

V.  Sherman  469 

Swei^art  v.  Eerk  529 

Swenson  v.  Aultman  113 

Swett  V.  Slmmwiiy  280,  286,  292 

Swettenhntn  v.  Leary  109 

Swift  V.  Dean  421 

V.  Stevens  558 

Swing  V.  Sparks  118 

Swinnerton  v.  Marquis  of  Stafford       21, 

142,  485 

Swire  v.  Bell  572 

Swisher  v.  Commonwealth  158,  160 

Swisher's  Case  158 

Swjft  V.  Eyres  301 

Sybray  v.  White  183 

Sydieraan  v.  Beckwith  440 

Syers  v.  Jonas  294 

Sykes  v.  Dunbar  252 

Sylvester  v.  Crapo  190 

Syme  v.  Stewart  5 

Symmons  v.  Knox  *                      60 

Symonds  v.  Carr  66 

V.  Lloyd  292 

Sypher  v.  Savery  329 


T. 


Tabb  V.  Cabell                  '  171 

Taft  V.  Dickinson  277 

V.  Fiske  171 

Talbot  (Lord)  v.  Clark  421 

V.  Cusack  438 

V.  Seeraan  5,  487,  491 

V.  Wilkina  279 

Talcott  V.  Harris  198 

Tallman  v.  Dutcher  421,  426 

Tarns  V.  Bullitt  51a 

Taney  v.  Kemp  452 

Tanner  v.  Hughes  13 

V.  Taylor  438 

Tannett's  Case  65 

Taplin  v.  Atty  560 

Tappan  v.  Abbot  197 

Tappen  v.  Davidson  272 

Tarleton  v.  Tarleton  543 

Tate  V.  Penne  28 

V.  Southard  145 

Taunton  Bank  v.  Richardson  349 

Tawney  v.  Crowther  268 

Tavloe  v.  Riggs  82,  349 

Taylor,  In  re  107,  108 

V.  Bank  of  Alexandria  489 

V.  Bank  of  Illinois  489 

V.  Barclay  4,  5,  6 

V.  Beck  385 

V.  Blacklow  240 

V.  Boardman  5 

V.  Briggs  278,  289,  292 

V.  Bryden  548 

V.  Cook  139 

V-  Crocker  196,  207 


Taylor  v.  Diplock 

V.  Duesterberg 

V.  Dundass 

V.  Forster 

V.  Grand  Trunk  R.  R.  Co 

V.  Henry 

V.  Jolinson 

V.  Kinloch 

V.  Lawson 

V.  Lutlier 

V.  Mclrvin 

V.  Mosely 

V.  Peek 

V.  Railway 

V.  Roe 

V.  Ross 

V.  Sayre 

V.  State 

V.  Tucker 

V.  Webb 

V.  Weld 

V.  Willans 
Tea  V.  Gates 
Teachout  v.  People 
Teal  V.  Auty 
Teall  V.  Van  Wyck 
Teipel  v.  Hilsendegen 
Tempest  v.  Kilner 
Temple  v.  Commonwealth 
Tenant  v.  Tenant 
Tenbroke  v.  Johnson 
Tennant  v.  Hamilton 

c.  Strachan 
Tennessee  (Bank  of)  v.  Cowan 
Tenney  v.  Evans 

V  Tuttle 
Tenny  v  Jones 
Tenth  Nat.  Bank  r.  Darragh 


Section 

30 

329 

521 

186,  239 

102 

484 

665 

181 

432 

385 

461 

564 

96 

102 

145 

268 

281 

111,213 

118 

189 

284 

49,  101,  186,  319 

37 


225 

271 

572 

49 

267 

451 

480 

118 

449 

392 

115 

179,  252a 

54 

46 

187 


Terre  Haute  &  Ind.  R.  R.  Co.  v.  Stock 

well  88 

Terrell  v.  Commonwealth  102 

Terrett  v.  Taylor  23,  24,  331 

Terrill  v.  Beecher  118 

V.  Colebrook  86 

Territory  v.  O wings  13a 

Terry  v.  Belcher  337 

V.  Milwaukee  5 

Tewkesbury  v.  Bricknell  72 

Texira  r.  Evans  568a 

Thallhimer  v.  BrinckerhoS  113 

Thayer  v.  Grossman  385,  401 

V.  Finton  286 

V.  Stearns  484 

V.  Thayer  63 

Theakston  v.  Marson  260a 

The  Barony  of  Saye  and  Sele  28 

The  Duero  5 

The  Gazelle  275 

Thelluson  v.  Gosling  491 

Theobald  v.  Tregott  416,  417 

The  Reformed  Dutch  Church  v.  Ten 

Eyck  126 

Thielmann  v.  Burg  6 

Thomas  v.  Ansley  96 


INDEX   TO   CASES   CITED. 


Ixxxvii 


Section 

Thomas  v.  Austen 

192 

0.  Cummins 

31!) 

V.  David 

432,  450 

V.  Dyott 

118 

V.  Graves 

260a 

V.  Harding 

558 

V.  Hargrave 

341 

V.  Jenkins 

139,  145 

V.  Ketteriche 

550 

V.  Loose 

284,  447 

V.  Newton 

451 

V.  People 

18 

V.  Robinson 

505 

V.  State 

219 

V.  Tanner 

506 

V.  Thomas 

197,  289,  291 

V.  Turnley 

575 

Thomas's  Case 

228 

Thomas  &  Henry  v.  U.  S. 

323 

Thomas  Jefferson,  The 

6 

Thompson  u.  Armstrong 

399 

V.  Bell 

284 

V.  Boston 

51  rt 

V.  Bullock 

144 

V.  Donaldson 

550 

V.  Freeman 

341 

V.  Ketch  um 

281 

V.  Lock  wood 

284 

V.  Maxwell 

305 

V.  Musser 

489 

V.  Roberts 

531 

V.  State 

469 

V.  Stevens 

120,  152 

V.  Stewart 

5,514 

V.  Thompson 

37, 174 

V.  Travis 

558 

V.  Trevanion 

102 

V.  Whitman 

540 

V.  Wolf 

103 

Thompson's  Case             219 

220,  222,  316 

Thomson  c.  Austen 

192,  201 

V.  Davenport 

196 

Thorington  v.  Smith 

280,  283 

Thorn  v.  Skating  Rink  Co. 

440 

Thorndike  v.  Boston 

108 

V.  Richards 

301 

Thornell  v.  Brockton 

286 

Thornes  v.  White 

210 

Thornton  v.  Blaisdell 

356 

V.  Jones 

66 

V.  Royal  Ex.  Ass.  Co. 

440 

V.  Wikes 

69 

Thornton's  Case 

220 

Thorpe  v.  Barber 

357 

V.  Cooper 

532 

V.  Gishurne 

577 

Thrall  v.  Seward 

329 

Throgmorton  v.  Walton 

41,81 

Thurman  v.  Bertram 

13a 

V.  Cameron 

573 

Thursby  v-  Myers 

143 

Thurston  v.  Masterson 

21 

V.  Slatford 

510 

V.  Whitney 

369 

Section 
Tibbetts  V.  Sternberg  437 

Ticliborne's  Case  581 

Tickel  V.  Short  197 

Ticknor  v.  Calhoun  87 

Tidmarsh  v.  Washington  F.  &  M.  Ins. 

Co.  80 

Tiermen  v.  Jackson  172 

Tiley  v.  Cowling  195,  527a 

Tilghman  v.  Fisher  196 

Tillotson  V.  Ramsay  440 

V.  Warner  501,  508,  509 

Tillou  V.  Clinton,  &c.  Ins.  Co.  564 

Tillson  V.  Moulton  296a 


V.  Smith 

345 

Tilton  V.  Beecher 

37 

Tinckler's  Case 

157 

158 

Tingley  v.  Cowgill 

44 

Tinkham  v.  Arnold 

17 

Tinkler  v.  Walpole 

494 

Tinley  v.  Porter 

319 

Tippet's  Case 

217 

Tisdale  v.  Conn.  L.  Ins.  Co. 

550 

Titford  V.  Knott 

581 

Title  V.  Grevett 

384 

Titlow  V.  Titlow 

81 

Titus  V.  Ash 

66,  461, 

462 

V.  Myers 

284 

Tobey  v.  Leonard 

279 

Tobin  V.  Jones 

44 

V.  Shaw 

37 

558 

Tod  V.  Earl  of  Winchelaea 

163 

272 

Todd  V.  Rowley 

52 

V.  Stafford 

385 

Tolman  v.  Emerson 

142 

144 

Tome  V.  Park,  Br.  R.  R. 

581 

Tomkies  v.  Reynolds 

108 

Tomkins  v.  Ashby 

651 

Tomlinson  v.  Greenfield 

5 

Tompkins  v.  Attor.-General 

484 

V.  Curtis 

430 

V.  Saltmarsh 

108 

V.  West 

440 

Tong's  Case 

233 

Tooker  v.  D.  of  Beaufort 

6 

Toomer  v.  Gadsden 

117 

Topham  v.  McGregor 

438 

Torkington,  Ex  parte 

322 

Torrey  v.  Pond 

551 

Tousley  v.  Barry 

190 

Towle  V.  Blake 

102 

118 

Town  I'.  Needhara 

421 

Townley  v.  Wooly 

118 

Towns  V.  Alford 

435 

Townsend  v.  Bush 

379 

385 

V.  Downing 

391 

395 

V.  Graves 

54 

V.  State 

49 

V.  Weld 

281 

Tracy  Peerage  Case 

10,  440 

580 

Trahern  ;;.  Colburn 

329 

Trambly  v.  Ricard 

284 

Transportation  Line  v.  Hope 

440 

Trant's  Case 

160 

Travis  v.  January 

246 

Ixxxviii 


INDEX   TO   CASES   CITED. 


Tread  way  v.  State 

Se 

ction 
462 

V.  Treadway 

99, 

329 

Treat  r.  Orono 

81 

V.  Strickland 

109, 

288 

Tregany  v.  Fletclier 

6 

Trelawnpy  v.  Colman 

38, 

102 

r.  Thomas 

.387 

Treleaven  v.  Dixon 

334 

Tremain  v.  Barrett 

310 

V.  Edwards 

118 

Trevivaii  i\  Lawrence 

22, 

23,  204, 

531 

Trewhitt  v.  Lambert 

89 

Tripp  v.  Garey 

86 

Trischet  v.  Hamilton  Ins. 

Co. 

198, 

468 

Trotter  v.  Mills 

502 

Trowbridge  v.  Baker 

195 

Trowel  v.  Castle 

511, 

564 

Trowter's  Case 

161 

Truslove  v.  Burton 

186 

Trustees,  t&e.  v.  Bledsoe 

114 

V.  Peaslee 

290, 

291 

Trustees  Ep.  Ch.  Newbern  v.  Trustees 

Newbern  Acad.  21 

Tucker  v.  Barrow  193 

V.  Mass.  Cent.  R.  R.  440 

V.  Maxwell  212,  305 

V.  Peaslee  51a 

V.  People  484 

V.  So.  Kingston  252a 

V.  Tucker  75 

V.  Welsh  89,  462 

Tufts  (.-.  Hayes  207 

Tuggle  V.  Barclay  51rt 

TuUis  V.  Kidd  440 

TuUock  c.  Dunn  176 

Turner  v.  Ambler  49 

V.  Austin  394 

V.  Coe  341,  421 

V.  Crisp  121 

V.  Eyles  66 

V.  Fish  5 

V.  Lazarus  356 

V.  New  burgh  440 

V.  Pearte  421 

V.  Twing  118 

V.  Waddington  506 

V.  Yates  182,  560 

Turney  v.  The  State  434 

Turquand  v.  Knight  238 

Tuskar,  The  305 

Tattle  )'.  Brown  113 

Tuxbury  v.  French  287 

Twambly  v.  Henley  24,  384,  397 

Twi.ss  V.  Baldwin  60,  64 

Tyer's  Case  65 

Tyler  (;.  Carlton  26 

V.  Flanders  104 

V.  Tyler  241 

V.  Uliner  180,  394,  539 

V.  Wilkinsrn  17 

Tyrwhitt  v.  Wynne  584 


U. 


Udderzook's  Case 
Ulen  V.  Kittredge 
Ulnier  v.  Leland 
Ulrich  V.  People 
Underhill  v.  Wilson 
Underwood  v.  McVeigh 

V.  Wing 
Union  v.  Piainfield 


Section 

5 

269 

78 

223 

180 

49 

30 

104 


Union  Bank  v.  Knapp     118,  168,  388,  474 

V.  Owen  4.30 
Union  Mut.  Ins.  Co.  v.  Wilkinson        281 

Union  Savings  Ass.  r.  Edwards  187 

Unis  V.  Charlton's  Adm.  462 

United  States  v.  Amcdy  489 

V.  American  Gold  Coins  5 

V.  Anthony  34,  49 

V.  Babcock  40,  .309 

V.  Battiste  49,  97 

V.  Benner  479 

V.  Breed  280 

V.  Brit  ton  65,  84 

V.  Buford  73,  498 

V.  Burns  5 

V.  Cantril  300 

V.  Castro  142,  143 

V.  Chamberlain  578 

V.  Chapman  221 

V.  Cushman  539a 

V.  De  Quilfeldt  28 

V.  Darling  311 

V.  Edme  316 

V.  Flowery  51a 
V.  Giber t                             84,  233,  495 

V.  Glass  Ware  488 

V.  Gooding  233 

V.  Hair  Pencils  421 

V.  Hanway  256 

V.  Hartwell  111 

V.  Hay  ward  79,  80 

V.  High  Wines  467 

V.  Hollis  372 

V.  Imsand  18 
V.  Johns                        4,  484,  485,  489 

V.  Jones  377 

V.  La  Vengeance  6 

V.  Leffler  284,  385 

V.  Macomb  165 

V.  McKee  111 

V.  McNeal  65,  70 

V.  Messman  681 

r.  Mitchell  479 

V.  Moore  311 

V.  Moses  2-50 

V.  Murphy  350,  412 

r.  Nelson  568a 

V.  Nott  219 

V.  Palmer  4 

V.  Penn  101 

V.  Percheman  485 

V.  Philadelphia  5 

?•.  Porter  65 
V.  Reyburn                             82,  83,  92 


INDEX  TO   CASES   CITED. 


Ixxxix 


Section 
5 
13 
251 
480 
666 
84 
6 
5 
461 
4 
33 
412 
105,257,258 
United  States  Bank  v.  Corcoran  2 

V.  Dandridge  21,  40,  83 

385 
416 
416 


United  States  v.  Reynes 
V.  Ross 

V.  Six  Lots  of  Ground 
V.  Smitli 
V.  Spalding 
V.  Sutter 
J'.  Tesclimaker 
V.  Turner 
V.  Van  Siclile 
V.  Waj^ner 
V.  Wiggins 
V  Wilson 
V.  Wood 


V.  Dunn 

V.  Johnson 

V.  Stearns 
United  States  Felting  Co.  v.  Asbestos 

Felting  Co.  528 

Updyke  v.  Wheeler  114 

Utica,  Bank  of  v.  Hillard        385,  474,  559 

V.  Mersereau  240,  242,  2i3,  4l'2 

V.  Sinalley  430 

Utica  Ins.  Co.  v.  Cad  well  430 


Vacher  v.  Cocks  108 

Vail  V.  Lewis  60 

V.  Nickerson  871 

V.  Rice  260a 

V.  Snnth  501 

V.  Strong  197 
Vaillant  v.  Dodemead                    243,  248 

Vairin  v.  Canal  Ins.  Co.  391 

Vaise  v.  Delaval  252a 

Valentine  v.  Piper  46,  575 

Vallance  v.  Dewar  292 

Van  V.  Corpe  361 

Van  Aernani  v.  Van  Aeruam  28 

Van  Buren  v.  Cockburn  165 

V.  Wells  51a 

VanBuskirk  ;;.  IMulock  489 

Vance  i).  Reardon  501 

V.  Schuyler  673 

Vandenlieuvel  v.  U.  Ins.  Co.  543 

Vanderwerker  i'.  People  6 

Van  Deusen  v.  Frink  429 

V.  Van  Slyck  358 

Vandine  i:  Burpee  440 

Van  Dyck  v.  Van  Beuren  46 
Vane's' (Sir  Henry)  Case               256,  343 

Vanhook  v.  Barnett  568rt 

Vanhorne  v.  Dorrance  564 

Van  Keuren  v.  Parnielee  112 

Van  Ness  v.  Packard  2 

Van  Nuys  )•.  Terhnne  389 

Van  Omeron  v.  Dowick  40,  479 

Vanquelin  v.  Bouard  546 
Van  Reimsdyk  v.  Kane  112,  174,  177,  178 

Van  Sandau  v.  Tnrner  6 

Van  Shaack  v.  Stafford  427 


Section 

Van  Sickle  v.  Gibson 

103 

Van  Storch  v.  Griffin 

506 

Van  Syckel  v.  Dalrymple 

275 

Van  V'alkenburgh  ;;.  Rouk 

284 

Van  Vecliten  i:  Graves 

173 

V.  Smith 

275 

Van  Wyck  c.  Mcintosh 

678 

Van  Wycklen  v.  Brooklyn 

440 

Vanzant  v.  Kay 

895 

Vass's  Case 

160,  161a 

Vasse  V.  Miffin 

559 

Vaughnn  v.  Fitzgerald 

552 

V.  Ilann 

214 

V  Martin 

438 

i\  Worral 

421 

Vaughn  v.  Perrine 

458 

V   Rhodes 

28 

Vaux  I'eerage  Case,  The 

497 

Vedder  v.  Wiikins 

558 

Veiths  V.  Hagge 

74 

Venable's  Case 

257 

Venning  v.  Shuttleworth 

399 

Vent  V.  Pacey 

240a 

Venus,  The 

108 

Vernon,  Greensburg,  &c.  R. 

R.  Co.  V. 

Johnson 

310 

Verran  v.  Baird 

82 

Verry  v.  Watkins 

54 

Vicary  v.  Moore 

303 

Vicary's  Case 

174 

Vigus  ■;;.  O'Bannon 

78 

Ville  de  Varsovie,  The 

373 

Villiers  v.  Villiers 

84 

Vihnar  i'.  Schall 

323 

V.  Schell 

117 

Vinal  V  Burrill 

87,  112,  356 

Vincent  v.  Cole 

88,  304 

Viney  v.  Brass 

52 

Vining  v.  Baker 

34 

Violett  v.  Patton 

268 

Voce  V.  Lawrence 

822 

Vogel  V.  Osborne 

171 

Volant  V.  Soyer 

246 

Vooght  V.  Winch 

531 

Vosburgh  v.  Thayer 

118 

Vose  V.  Handy 

301 

V.  Morton 

523 

Vowles  V.  Miller 

00,  62,  72 

V.  Young                   103 

105,  334,  342 

Vreeland  v.  Williams 

290 

W. 

Waddington  v.  Bristow 

271 

r.  Cousins 

578,  580 

Wade  V.  State 

165,  166,  219 

Wadley  v.  Bayliss 

293 

Wafer  v.  Hempken 

168 

Wagers  v.  Dickey 

165 

Wagner's  Case 

6 

Wagoner  i'.  Richmond 

118 

Wagstaff  V.  Wilson 

186 

Wain  V.  Warlters 

268 

Waite  V.  Merrill 

427 

xc 


INDEX  TO   CASES  CITED. 


Section 

Waithman  v.  Miles 

97 

Wake  IV  Harrop 

284a 

(;  Lock 

396, 

421,  426 

Wakefielfl  v.  Ross 

^28, 

339,  369 

Wakefield's  Case 

339, 

343,  374 

Wakely  v.  Hart 

358 

Walcott  V.  Alleyn 

42,81 

V  Hall 

55 

Waldele  c.  N.  Y.  Cent.  R.  R 

156 

Walden  v.  Canfield 

6 

V  Craig 

78 

V.  Sherburne 

112 

Wald  ridge  v.  Kennison 

102 

Waldron  v.  Tuttle 

103 

V.  Ward 

243 

Walker  v.  Broadstock 

109,  189 

V.  Countess  of  Beaucbamp 

131 

V.  Curtis 

49,84 

V.  Donspaugh 

435 

V.  Ferrln 

427 

V.  Giles 

409 

V.  HUl 

329 

I".  Hunter 

49 

V.  Kearney 

374 

V.  Moors 

101 

V.  Protection  Ins.  Co. 

440 

V.  Sawyer 

425 

V.  State 

156,  221 

V.  Steplienson 

54 

i;.  Taylor 

329 

V.  Welch 

66 

V.  Westfield 

52 

V.  Wheatly 

302 

V.  Wildman 

237,  240 

V.  Wingfield 

485 

V.  Witter 

546 

Walker's  Case 

189 

Walkup  v.  Pratt 

103 

Wall  V.  McNamara 

531 

Wallace  v.  Cook 

484,  493 

V  Jecko 

329 

V.  Kennelly 

51a 

V.  Rogers 

305 

V.  Small 

192 

V.  Taunton  St.  Ry.  Co. 

447 

V.  Twj'man 

420 

Waller  v.  School  District 

84 

Wallis  r.  Littell 

284n 

V.  Murray 

559 

Walls  V.  Bailey 

292 

Walpole  V.  Alexander 

317 

Walsh  V.  Dart 

5 

V.  Rogers 

323 

Walsingham  (Ld.)  v.  Goodricke  240a,  244 

Walter  v.  Bollman 

117 

V.  Haynes 

40 

Walters  v.  Mace 

64 

V.  Rees 

317 

V.  Short 

564 

V.  State 

81 

Walton  V.  Coulson 

21 

V.  Green 

no 

185,  341 

V.  Slielley 

384 

,  385,  380 

t" .  Tomlin 

356 

Section 

Walton  V.  Walton 

260 

Wambaugh  v  Schenck 

41 

Wandless  v.  Cawthorne 

95.  422 

Ward  V.  Apprice 

349 

V.  Busack 

89 

V.  Dulaney 

35 

V.  Fuller 

91,484 

V.  Haydon 

357 

V.  Henry 

6 

V   Howell 

112 

V.  Johnson 

539 

V.  Lewis 

38 

V.  Morrison 

5 

V.  Pomffet 

155 

V.  Sliarp 

452 

V.  State 

161a 

V.  Ward 

99 

V.  Wells 

572 

r.  Wilkinson 

398 

Warde  v.  Warde 

241 

Warden  v.  Eden 

173 

V.  Fermor 

572 

Wardle's  Case 

65 

Ware  v.  Allen 

284 

V.  Brookhouse 

109 

V.  State 

334 

V.  Ware                         52 

,77, 

449,  462 

Warickshall's  Case         214, 

215, 

219,  231 

Waring  v.  U.  S.  Tel.  Co. 

198 

V.  Waring 

365 

Warlick  v.  White 

13a 

Warner  v.  Bait.  &  Ohio  R.  R.  Co 

569 

V.  Hardy 

485 

V.  Price 

116,  120 

Warren  v.  Anderson 

575 

V.  Charlestown 

331 

V.  Comings 

531,  532 

V.  Flagg 

505 

V.  Gabriel 

442,  443 

V.  Greenville             120, 

147, 

149,  150 

V   Nichols 

165 

V.  Spencer  Water  Co. 

252a 

V.  Warren 

40 

V.  Wlieeler 

277 

Warren  Hastings's  Case    . 

497 

Warrick  v.  Hull 

329 

V.  Queen's  College 

129 

Warriner  v.  Giles 

484 

Warrington  v.  Early 

568 

Warwick  v.  Bruce 

271 

V.  Foulkes 

53 

Washburn  v.  Cuddihy 

497 

Washington  r.  Finley 

5 

Washington  Ice  Co.  v.  Webster 

75 

Wasliington  S.  P.  Co.  v.  Sickles 

532 

Waterman  v.  Johnson 

288,  301 

Watertown  r.  Cowen 

175 

Watkins  v.  Holman 

479, 

480,  482 

V.  Morgan 

73 

V.  Paine 

82 

V.  Towers 

27 

V.  Turner 

3S4 

Watrous  v.  Cunningham 

436 

Watson  V.  Baker 

286 

INDEX   TO   CASES   CITED. 


XCl 


Section 

Watson  V.  Blaine  20 

V.  Brewster  104 

V.  England  41 

V.  Hay  6 

V.  King  41,  186 

V.  McLaren  4o0 

V.  Moore  55,  201 

V.  Thrclkeld  27,  207 

V.  Wace  204,  207 

Watts  V.  Friend  271 

V.  Howard  118 

V.  Kilburn  572 

V.  Lawson  192 

V.  Thorpe  181 

Waugh  V.  Bussell  69,  567 

Wayland  v.  Ware  86,  498 

Wayman  v.  Hilliard  19!^ 

Wayniell  v.  Eeed  284,  488 

Weakly  v.  Bell  207 

Weall  V.  King  58,  64 

Weatherhead  v.  Sewell  288 

Webb  V.  Alexander  513 

V.  Mane.  &  Leeds  Ry.  Co.  440 

V.  Page  310 

V.  Richardson  103 

V.  Smith  179,  248 

V.  State  372 

V.  St.  Lawrence  575 

Webber  v.  Davis  92 

V.  Eastern  R.  R.  Co.  440,  441 

Webster  v.  Clark  436 

V.  Lee  532 

V.  Mann  372 

V.  Vickers  385 

V.  Webster  115 

V.  Woodford  284 

Wedge  V.  Berkeley  49 

Wedgewood's  Case  484,  493 

Weed  V.  Kellogg  180 

V.  Mut.  L.  Ins.  Co.  81 

Weeks  v.  Sparke     128,  129,  130,  136,  137, 

138,  145,  146 

Weems  v.  Disney  145 

Weguelin  v.  Weguelin  321 

Wehle  V.  Spelman  182 

Weidman  v.  Kohr  109,  189 

Weidner  v.  Schweigart  38 

Weigly  V.  Weir  26 

Welborn's  Case  158,  160 

Welch  V.  Barrett  357 

r.  Mandeville  173 

i\  Seaborn  38 

Weld  V.  Nichols  539 

Welden  v.  Buck  423 

Welford  v.  Beezely  268 

Welland  Canal  Co.  v.  Hathaway     86,  96, 

203,  204 

Weller  v.  Gov.  Found.  Hosp.        331,  333 

Wellman,  In  re,  40 

Wells  V.  Company  6 

V.  Compton     195,  301,  485,  527a,  539 

V.  Fisher  339 

V.  Fletcher  207,  389 

V.  Jackson  435 


Section 

Wells  V.  Jackson  Iron  Man.  Co. 

467 

V.  Jesus  College 

■    138 

V.  Lane 

333 

V.  I'orter 

293 

V.  Stevens 

613 

V.  Tucker 

338 

Welsh  V.  Barrett 

115, 

116,  147 

Wendell  v.  George 

385 

Wentworth  v.  Smith 

52 

Werely  v.  Persons 

102 

Wertz  V.  May 

469 

West  V.  Baxendale 

49 

V.  Davis 

97 

V.  Randall 

392 

V.  Smith 

192, 

277,  286 

V.  State 

34,  35, 

150,  577 

V.  Steward 

568a 

West  Boylston  r.  Sterling  323 

Westbury  v.  Aberdein  441 

West  Cambridge  v.  Lexington  109 

Westerman  v.  Westerman  254,  334 

Western  Union  Tel.  Co.  v.  Shotter        88 

Weston  V.  Barker  173 

V.  Chamberlin  281 

V.  Emes  281 

V.  Gravlin  13o 

V.  Penniman  494 

Westover  v.  JEtn^  Life  Ins.  Co.    243,  248 

Wetherbee  v.  Norris  461 

AVetmore  v.  Mell  108 

Whartley  v.  Fearnley  392 

Wiiateley  v.  Crowter  559 

Whately"  v.  Menheira  531 

Wheat  ('.  State  79 

Wheater's  Case  225,  226 

Wheatley  v.  Baugh  46 

V.  Williams  245 

Wheeldon  v.  Wilson  329 

Wheeler  v.  Alderson  101,  440 

V.  Hambright  180 

V.  Hatch  437 

V.  Hill  237 

Wheeling's  Case  217 

Wheelock  v.  Boston  &  Albany  R.  R.  Co.  49 

V.  Doolittle  112 

Wheelton  v.  Hardisty  13 

Whelpdale's  Case  284 

Whipp  V.  State  334 

Whipple  V.  Foot  271 

V.  Walpole  440 

Whitaker  v.  Bramson  70 

V.  Marsh  163 

V.  Salisbury  443,  572 

V.  Smith  58 

Whitamore  v.  Waterhouse  394,  427 

Whitbeck  v.  Whitbeck  26 

Whitcher  v.  McLaughlin  115 

V.  Siiattuck  101 

Whitcomb  v.  Whiting  112,  174 

White  V.  Ballou  440 

V.  Chase  632 

V.  Coatsworth  532 

V.  Crew  260 

V.  Everest  452 


xcn 


INDEX   TO    CASES    CITED. 


Section 

White  V.  Foljamhe  40 

V.  German  Nat.  Bk.  187 

17.  Hale  112,  174 

V.  H;i\vn  371 

V.  Hill  858 

V.  Judd  310 

V.  Lisle  130,  137,  138 

V.  Loring  46 

V.  Merrill  "  171 

V.  Old  Dom.  S.  S.  Co.  192 

V.  Parkin  303 

V.  Patten  26 

V.  Perry  254 

V.  Philbrick  533 

V.  Proctor  269 

V.  Boss  334 

V.  Sayer  204 

V.  State  231 

V.  Trust.  Brit.  Museum  272 
V.  Wilson                   42,  58,  68,  81,  281 

White's  Case  65,  217,  328,  365 

Whitehead  v.  Scott  89,  101 

V.  Tattersall  184 

Whitehouse  v.  Atkinson  394,  420 

V.  Bickford  145 

r.  HcMnmant  584 

Whitehouse's  Case  343 

Whitelock  v.  Baker  103,  104,  131 


V.  Musgrove 
Whitesell  v.  Crane 
Whitfield  r.  CoUingwood 
Whitfnrd  v.  Tutin 
Whiting  ('.  Barney 
Whitlock  V.  Ramsey 
Whitman  v.  Heneberry 
Whitmarsh  v.  Angle 

V.  Walker 
Whitmer  v.  Frye 

V.  Rucker 
Whitmore  v.  Learned 

V.  S.  Boston  Iron  Co. 

V.  Wilks 
Whitnash  v.  George 
Whitney  r.  Bigelow 

V.  Boardman 

I'.  Ferris 

V.  Gross 

V.  Hey  wood 

V.  Houghton 

V.  NichoU 

V.  Shippen 

V.  Traynor 


575 
348 
564 

87 
241 

69 
142 
440 
271 
568 
329 
290 
292 
347 
116,  150,  187 
121 
280,  286 
177 
51a 
323 
99,  197 

41 
303 
329 


Whiton  V.  Albany  City  Ins.  Co.  479,  480, 

497 

Whittaker  v.  Garnett  26 

V.  Wisley  40 

Whitteraore  v.  Brooks  572 

Whittier  v.  Smith  207 

Whittuck  V.  Waters  103,  493 

Whitwell  r.  Scheer  73 

V.  Wyer  201 

Whyman  v.  Garth  569 

Wickes  ('.  Caulk  564 

Wickliffe  v.  Lynch  329 


Section 

Wicks  ?.'.  Smalbrook  375 

Widdifield  v.  Widdifield  96 

Wiggin  ;;.  Chicago  5 

V  Goodwin  303 
V.  Lowell  333 

Wigglesworth  v.  Dallison  294 

V.  Steers  284 

Wightman  v.  Overhiser  436 

Wihcn  V.  Law  104 

Wike  V.  Lightner  461 

Wikoff's  Appeal  564 

Wilber  v.  Si.sson  34 

Wiiberforce  v.  Hearfield  139 

Wilbur  V.  Selden  115,  147,  163,  165 

V.  Strickland  233 

V.  Wilbur  571 

Wilcocks  I'.  Phillips  488 

Wilcox  V.  Emerson  275 

V.  Farrell  386 

V.  Smith  83,  92 

Wilde  V.  Armsby  564 

Wilder  v.  Cowles  74 

V.  Welsh  316 

Wiley  V.  Athol  108 

V.  Bean  572 

V.  Moor  B68a 

r.  Morse  329 

/)   State  53 

Wilke  V.  People  334 

Wilkins  v   Lamb  144 

?;.  Stidger  171,  197 

Wilkinson  v.  Johnson  566 

V.  Lutwidge  196 

V.  Moseley  440 

V.  Scott  26,  212,  305 

V  Yale  323 
Willard  v.  Harvey  508 

V.  Wickham  427 

Willett  V.  Rich  74 

V  Hunter  329 
William  IV.  i'.  Roberts  142 
Williams  ?'.  Armroyd  541 

V.  Baldwin  254,  338 

V  Bartholomew  2D7 
V.  Brickell  88 
r.  Bridges  180,  181 
V.  Bryant  69 
V.  Byrne  49 
V.  Callender  55 
V.  Cheney  171,  195,  552 
V.  Commonwealth  257a 
V.  E.  India  Co.                  35,  40,  78,  80 

V  Eyton  20 
V.  Geaves  115,  150,  151 
V.  Oilman  288 
V.  Goodwin  430 
V.  Hing.,  &c.  Tump.  Co.  78 
V.  Ilulie  432 
V.  Innes  27,  182 
V.  Johnson  342 
r.  Mundie  240 
V.  Ogle  65 
V.  Perkins  329 
V.  State                     108,  192,  372,  581 


INDEX   TO   CASES    CITED. 


XClll 


Section 

Willey  V.  Stephens 

3U2 

V.  Taunton 

132 

V.  Thomas 

74 

V.  Walliridge 

385 

V.  Walker 

443 

V.  Waters 

84 

V.  Wilcox 

584 

V.  Wilkes 

502 

V.  Wiltard 

165 

V.  Williams 

45,  86,  200 

V.  Woods 

38 

V.  Young 

245 

Williams's  Case 

311 

Williamson  u.  Allison 

51,  60,  63 

V.  Henley 

205 

V.  State 

329 

Willingliam  v.  Matthews 

316 

Willings  V.  Consequa 

854 

Willis  V.  Bernard 

102 

V.  Hulbert 

284« 

Willis  V.  Ternagan 

197 

V.  West 

237 

Willis's  Case 

255 

Williston  (;.  Smith 

65 

Willmering  v.  McGaughey 

280 

Willougiiby  V.  Dewey 

51a 

V.  Willoughby 

5 

Wills  V.  McDole 

558 

Willson  V.  Betts 

144 

Wilmer  v.  Israel 

118 

Wilmington  t\  Burlington 

104 

Wilson  V.  Allen 

4G 

V.  Beauchamp 

581 

V.  Boereni 

156 

V.  Bowie 

89 

V.  Butler 

22 

V.  Calvert 

201 

V.  Conine 

511 

V.  Donaldson 

317 

V.  Gary 

409 

V.  Goodin 

118 

V.  Haecker 

284 

V.  Hodges 

41,81 

V.  McCulIough 

434 

V.  Melvin 

79 

V.  Minn.  &  N.  W.  R.  R. 

Co.              88 

V.  Niles 

548 

V.  O'Day 

111 

V.  Powers 

284,  284a 

V.  Rastall                    237 

239,  243,  247 

V.  Rogers 

473 

V.  Russell 

329 

V.  State 

220,  319,  461 

V.  Troup 

237,  241 

V.  Turner 

27 

V.  Van  Leer 

5 

V.  Wagar 

445 

V.  Wilson 

118,  275 

Wilson's  Case 

225 

Wilson  Sewing  Machine  Co 

V.  Jack- 

son 

323 

Wilt  V.  Cutler 

489 

Wilton  V.  Girdlestone 

521 

V.  Webster 

102 

Wiltzie  V.  Adamson 
Winans  v.  Dunham 

V.  N.  Y.  &  E.  R.  R. 
Winch  V.  Keeley 
Wiiicliell  I'.  Edwards 
Winchester  v.  Charter 
Winers  v.  Laird 
Wing  V.  Abbott 

V.  Andrews 

V.  Angrave 
Winn  V  Chamberlin 

V.  Patterson 


Section 
197,  198 
511 
440 
172 
37 
109 
91 
84 
329 
30 
292 
21,84,  142,558 


Winnepiscogee  Lake  Co.  ?'.  Young 

Winnisimmett  Co.  v.  Grueby  75 

Winona  v.  Burke  5 

Winship  V.  Bank  of  U.  S.  167,  418 

V.  Conner  41 

Winslow  V.  Kimball  341 

Winsmore  i'.  Greenbank  341 

Winsor  r.  Dillaway  118 

V.  Pratt  273 

Winter  v.  Butt  467 

V.  Wroot  102 

Wintle,  In  re  493 

Wishart  v.  Downey  569 

Wishaw  V.  Barnes  408 

Withee  v.  Rowe  681 

Withers  i'.  Atkinson  568 

V.  Gillespy  6G3 

Withnell  v.  Gartham  138,  293 

Witmer  v.  Schlatter  539 

Witthaus  V.  Schack  329 

Woburn  v.  Henshaw  238,  329 

Wogan  V.  Small  440 

Wolf  V.  Foster  90 

V.  Wyeth  165 

Wolfe  V.  Washburn  498,  513 

Wolford  V.  Farnham  334 

Wollaston  v.  Berkeley  30 

WoUey  V.  Brownhill  347 

Wolverton  v.  State  96 

Wolverton  Mortgaged  Estates,  hi  re,   290 

Womack  r.  Dearman  479 

Wood  V.  Braddick  112,  177 

V.  Braynard  392 

V.  Chetwood  254 

V.  Cooper  438 

V.  Davis  524 

r.  Drury  572 

V.  Fiske  109 

V.  Fitz  6 

V.  Graves  163,  171 

V.  Hickok  260  a 

V.  Jackson  529,  531 

V.  Knapp  498 

V.  Le  Baron  632 

V.  Mackinson  445 

V.  Mann  461 

V.  Neale  317 

I'.  Pringle  76 

V.  U.  S.  53 

V.  Watkinson  547 

V.  Whiting  305 

V.  Willard  145 


XCIV 


INDEX   TO   CASES   CITED. 


Section 

Woodbeck  v.  Keller  255,  257 

Wooilbridge  v.  ISpooner  281 

Woodbiirv  r.  Friuk  78 

V.  Woodbury  329 

Woodcock's  Case  158 

Woodcock  V.  Worcester  51a 

Woodcraft  v.  Kinastou  502 

Woodford  v.  Asliley  70 

Woodman  v.  Coolbroth  571 

V.  Dana  581 

I'.  Lane  301 

Woodruff  V.  Taylor  54G 

V.  Westcott  190,  353 

V.  Woodruff  527a 

Woods  r.  Banks  113,  508 

V.  Keyes  105 

V.  Saw  in  287 

V.  State  334 

I'.  Woods  41,  240a 

Woodsides  v.  State  156 

Woodward  r.  Buchanan  52 

V.  Larking  211 

V.  Leavltt  99,  252a 

V.  Newhall  197,  356 

V.  Pickett  268 

Woodward,  In  re  315 

Woodworth  v.  Barker  558 

Woolani  V.  Hearn  276 

Wooley  1-.  Grand  St.,  &c.  R.  R.  Co.      51a 

Woolsey  v.  Bohn  118 

V.  Koundout  92 

Woolway  v.  Rowe  190,  191 

Wooster  v.  Butler  145,  287 

V.  Lyons  69 

Wooten  I'.  Wilkins  156 

Worcester  v.  Northborough  493,  497 

Worcester  Bank  v.  Cheney  5 

Worcester  Co.  Bank  v.  Dorchester,  &c. 

Bank  81 

Workingman's  Mut.  Aid  Soc.  310 

Worrall  v.  Jones  330,  353,  354,  356 

Worth  V.  Gray  .39 

Wortliington  v.  Hylyer  800,  301 

V.  Scribner  250,  451 

Wright  V.  Barnard  5 

V.  Beckett  444,  467 

V.  Court  111 

V.  Crookes  281,  304 

V.  Doe  d.  Tatham  584 

V.  Foster  74 

V.  Hawkins  5 

V.  Hicks  462 

V.  Howard  17 

V.  Littler  156 

V.  Maseras  197 

V.  McKee  -  64 

V.  Netherwood  30 

V.  Sarmuda  30 

V.  Sharp  118 

V.  State  156 

V.  Tathara  82,  101,  108,  163,  164, 

635,  553 

V.  Willcox  469 

V.  Williams  440 


Sectioa 

Wright  V.  Wright 

51a,  81,  272 

Wroe  V.  State 

159 

Wyatt  V.  Gore 

251 

V.  Hodson 

174 

t'.  Lord  Hertford 

207 

Wyer  v.  Dorchester,  &c. 

Bank                81 

Wylde's  Case 

288 

Wyndham  v.  Chetwynd 

419 

Wynne  v.  Moor 

55 

V.  Tyrwhitt 

150,  154,  570 

Yabsley  v.  Doble  180 
Yale  V.  Comstock                    163,  164,  166 

Yandes  v.  Lefavour  112 

Yarborough  v.  Moss  201 

Yardley  v.  Arnold  421 

Yates  r.  Carnsew  201 

Yates  V.  Vym  292 

V.  Thomson  _         49 

Yates's  Case  "        257 

Yeatman,  Ex  parte  238 

V.  Hart  51a 

Yeaton  v.  Fry  '    5,  514 

Yeats  V.  Pirn  294 

Yeaw  V.  Williams  \    440 

Yetman  v.  Day  329 

York  V.  Blott  399 

V.  Gribble  402 

t'.  I'ease  74 

York's  Case  18,  34 

York,  &c.  Pv.  R.  Co.  v.  Winans  6 

Yoter  V.  Sanno  251 
Young  V.  Bank  of  Alexandria       480,  489, 

490 

V.  Bairner  76,  395 

V.  Black  532 

V.  Chandler  606 

V.  Commonwealth  220,  223 

V.  Dearborn  163 

V.  Raincock  22 

V.  Richards  341 

V.  Smith  180 

V.  Wright  27,  186 

Younge  v.  Honner  680 

Youngs  V.  Ransom  5 

V.  Youngs  451 

Yount  V.  Howell  6 

Youqua  v.  Nixon  304 

Yrissari  v.  Clement  4 


Z. 

Zitzer  v.  Ilerkel  55 

Zollicoffer  v.  Turney  452 
Zouch  V.  Clay                                  667,  568a 

Zouch  Peerage  Case  133 

V.  Moor  65 

Zuchtmann  v.  Roberts  204 

Zumwelt  i\  State  233 


PART    I. 

OF    THE    NATURE   AND    PRINCIPLES    OF    EVIDENCE. 


VOL.    I.  —  1 


A   TREATISE 


ON 


THE    LAW    OF    EVIDENCE. 


PAP.T    I. 

OF  THE  NATURE  AND  PRINCIPLES  OF  EVIDENCE. 


CHAPTER  I. 

PRELIMINARY   OBSERVATIONS. 

§  1.  Definitions.  The  word  EVIDENCE,  in  legal  acceptation, 
includes  all  the  means  by  which  any  alleged  matter  of  fact,  the 
truth  of  which  is  submitted  to  investigation,  is  established  or 
disproved.  1  This  term,  and  the  word  proof,  are  often  used  in- 
differently, as  synonymous  with  each  other;  but  the  latter  is 
applied  by  the  most  accurate  logicians  to  the  effect  of  evidence, 
and  not  to  the  medium  by  which  truth  is  established.  ^  None  but 
mathematical  truth  is  susceptible  of  that  high  degree  of  evidence, 
called  demonstration,  which  excludes  all  possibility  of  error,  and 
which,  therefore,  may  reasonably  be  required  in  support  of  every 
mathematical  deduction.  Matters  of  fact  are  proved  by  moral 
evidence  alone ;  by  which  is  meant  not  only  that  kind  of  evidence 
which  is  employed  on  subjects  connected  with  moral  conduct,  but 
all  the  evidence  which  is  not  obtained  either  from  intuition,  or 
from  demonstration.  In  the  ordinary  affairs  of  life,  we  do  not 
require  demonstrative  evidence,  because  it  is  not  consistent  with 

1  See  Wills  on  Circumstantial  Evid.  2 ;  1  Stark.  Evid.  10;  1  Phil.  Evid.  1. 

2  Whately's  Logic,  b.  4,  ch.  3,  §  1. 


4  LAW   OF   EVIDENCE.  [PART  I. 

the  nature  of  the  subject,  and  to  insist  upon  it  would  be  unrea- 
sonable and  absurd.  The  most  that  can  be  affirmed  of  such 
things  is,  that  there  is  no  reasonable  doubt  concerning  them.^ 
The  true  question,  therefore,  in  trials  of  fact,  is  not  whether  it  is 
possible  that  the  testimony  may  be  false,  but  whether  there  is 
sufficient  prohahility  of  its  truth ;  that  is,  whether  the  facts  are 
shown  by  competent  and  satisfactory  evidence.  Things  estab- 
lished by  competent  and  satisfactory  evidence  are  said  to  be 
proved. 

§  2.  Competent,  satisfactory,  and  cumulative.  By  competent 
evidence  is  meant  that  which  the  very  nature  of  the  thing  to  be 
proved  requires,  as  the  fit  and  appropriate  proof  in  the  particular 
case,  such  as  the  production  of  a  writing,  where  its  contents  are 
the  subject  of  inquiry.  By  satisfactory  evidence,  which  is  some- 
times called  sufficient  evidence,  is  intended  that  amount  of 
proof,  which  ordinarily  satisfies  an  unprejudiced  mind,  beyond 
reasonable  doubt.  The  circumstances  which  will  amount  to  this 
degree  of  proof  can  never  be  previously  defined ;  the  only  legal 
test  of  which  they  are  susceptible  is  their  sufficiency  to  satisfy  the 
mind  and  conscience  of  a  common  man ;  and  so  to  convince  him, 
that  he  would  venture  to  act  upon  that  conviction,  in  matters  of 
the  highest  concern  and  importance  to  his  own  interest.  ^  Ques- 
tions respecting  the  competency  and  admissibility  of  evidence  are 
entirely  distinct  from  those  which  respect  its  sufficiency  or  effect ; 
the  former  being  exclusively  within  the  province  of  the  court; 
the  latter  belonging  exclusively  to  the  jury.^  Cumulative  evi- 
dence is  evidence  of  the  same  kind,  to  the  same  point.  Thus, 
if  a  fact  is  attempted  to  be  proved  by  the  verbal  admission  of  the 
party,  evidence  of  another  verbal  admission  of  the  same  fact  is 
cumulative;  but  evidence  of  other  circumstances,  tending  to 
establish  the  fact,  is  not.^ 

§  3.  Division  of  the  Subject.  This  branch  of  the  law  may  be 
considered  under  three  general  heads,  namely:  First,  The  Na- 
ture and  Principles  of  Evidence;   Secondly,  The  Object  of  Evi- 

3  See  Gambier's  Guide  to  the  Study  of  Moral  Evidence,  p.  121.  Even  of  mathemat- 
ical truths,  this  writer  justly  remarks,  that,  though  capable  of  demonstration,  they  are 
admitted  by  most  men  solely  on  the  moral  evidence  of  general  notoriety.  For  most 
men  are  neither  able  themselves  to  understand  mathematical  demonstrations,  nor  have 
they,  ordinarily,  for  their  truth,  the  testimony  of  those  who  do  understand  them  ;  but, 
finding  them  generally  believed  in  the  world,  they  also  believe  them.  Their  belief  is 
afterwards  confirmed  by  experience  ;  for,  whenever  there  is  occasion  to  apply  them, 
they  are  found  to  lead  to  just  conclusions.     Id.  196. 

1  1  Stark.  Evid.  514. 

2  Columbian  Ins.  Co,  v.  Lawrence,  2  Pet.  25,  44;  Bank  of  United  States  v.  Corcoran, 
Id.  121,  133;  Van  Ness  v.  Pacard,  Id.  137,  149. 

8  Parker  v.  Hardy,  24  Pick.  246,  248. 


CHAP.    I,]  PRELIMINARY   OBSERVATIONS.  5 

dence,  and  the  Rules  which  govern  in  the  production  of  testimony ; 
And  Thirdly^  The  Means  of  Proof,  or  the  Instruments  by  which 
facts  are  established.  This  order  will  be  followed  in  farther 
treating  this  subject.  But,  before  we  proceed,  it  will  lie  proper 
first  to  consider  what  things  courts  will,  of  themselves,  take 
notice  of,  without  proof. 


LAW   OF   EVIDENCE.  [PART   I. 


CHAPTER  II. 

OF   THINGS   JUDICIALLY    TAKEN   NOTICE   OF,    WITHOUT   PROOF. 

§  4.  Public  functionaries,  seals,  laws,  and  acts  of  state.  All 
civilized  nations,  being  alike  members  of  the  great  family  of 
sovereignties,  may  well  be  supposed  to  recognize  each  other's  exis- 
tence, and  general  public  and  external  relations.  The  usual  and 
appropriate  symbols  of  nationality  and  sovereignty  are  the  na- 
tional flag  and  seal.  Every  sovereign,  therefore,  recognizes,  and, 
of  course,  the  public  tribunals  and  functionaries  of  every  nation 
take  notice  of  the  existence  and  titles  of  all  the  other  sovereign 
powers  in  the  civilized  world,  their  respective  flags,  and  their 
seals  of  state.  Public  acts,  decrees,  and  judgments,  exemplified 
under  this  seal,  are  received  as  true  and  genuine,  it  being  the 
highest  evidence  of  their  character.  ^  («)  Kj  however,  upon  a 
civil  war  in  any  country,  one  part  of  the  nation  shall  separate 
itself  from  the  other,  and  establish  for  itself  an  independent 
government,  the  newly  formed  nation  cannot  without  proof  be 
recognized  as  such,  by  the  judicial  tribunals  of  other  nations, 
until  it  has  been  acknowledged  by  the  sovereign  power  under 
which  those  tribunals  are  constituted  ;2  the  first  act  of  recogni- 
tion belonging  to  the  executive  function,  (b)  But  though  the 
seal  of  the  new  power,  prior  to  such  acknowledgment,  is  not  per- 
mitted to  prove  itself,  yet  it  may  be  proved  as  a  fact  by  other 
competent  testimony.^     And  the  existence  of  such  unacknowl- 

1  Church  V.  Hubbart,  2  Cranch,  187,  238;  Griswold  v.  Pitcairn,  2  Conn.  85,  90; 
United  States  v.  Johns,  4  Dall.  416  ;  The  Santissima  Trinidad,  7  Wheat.  283.  335  ; 
Anon.,  9  Mod.  66;  Lincoln  v.  Battelle,  6  Wend.  475.  It  is  held  in  New  York  that 
such  seal,  to  be  recognized  in  the  courts,  must  be  a  common-law  seal,  that  is,  an 
impression  upon  wax.     Coit  v.  Millikin,  1  Denio,  376. 

2  City  of  Berne  v.  Bank  of  England,  9  Ves.  347;  United  States  v.  Palmer,  3  Wheat. 
610,  634. 

3  United  States  v.  Palmer,  3  Wheat.  610,  634;  The  Estrella,  4  Wheat.  298.  What 
is  sufficient  evidence  to  authenticate,  in  the  courts  of  this  country,  the  sentence  or 
decree  of  the  court  of  a  foreign  government,  after  the  destruction  of  such  government, 
and  while  the  country  is  possessed  by  the  conqueror,  remains  undecided.  Hadfield  v. 
Jameson,  2  Muuf.  53,  70,  71. 

(a)  Lazier  v.  Westcott,  26  N.  Y.  146;  whether  it  has  been  thus  acknowledged. 
United  States  v.  Wagner,  L.  R.  2  Ch.  Taylor,  Evid.  7th  ed.  §  4;  Taylor  v.  Bar- 
App.  585.  clay,  2  Sim.  213.     Cf.  Bolder  v.  Bank  of 

(b)  The  court  will  take  judicial  notice  England,  10  Ves.  354. 


CHAP.    II.]  THINGS   JUDICIALLY   TAKEN   NOTICE   OF. 


edged  government  or  State  may,  in  like  manner,  be  proved;  the 
rule  being,  that  if  a  body  of  persons  assemble  together  to  protect 
themselves,  and  support  their  own  independence,  make  laws  and 
have  courts  of  justice  this  is  evidence  of  their  being  a  state.* 

§  5.  Law  of  Nations,  Seals  of  Notaries,  and  Admiralty  Courts, 
and  all  facts  of  common  knowledge.  In  like  manner,  the  Law  of 
Nations,  and  the  general  customs  and  usages  of  merchants,  (a) 
as  well  as  the  public  statutes  and  general  laws  (b)  and  customs 

*  Yrissarri  v.  Clement,  2  C.  &  P.  223,  per  Best,  C.  J.  And  see  1  Kent,  Coram. 
189  ;  Grotius,  De  Jur.  Bel.  b.  3,  c.  3,  §  1, 


(a)  These  customs  and  usages,  forming 
the  law  merchant,  are  judicially  noticed 
by  the  court,  and  evidence  of  witnesses  to 
prove  them  will  not  be  admitted.  Jewell 
V.  Center,  25  Ala.  498;  Munn  v.  Burch, 
25  111.  35;  Wiggin  v.  Chicago,  5  Mo.  App. 
347.  Local  customs,  however,  will  not  be 
judicially  noticed.  Dutch,  &c.  Co.  v, 
Mooney,  12  Cal.  535;  Sullivan  v.  Hense, 
2  Col.  Terr.  424;  Turner  v.  Fish,  28  Miss. 
306;  Youngs  v.  Ransom,  31  Barb.  (N.  Y.) 
49;  Lewis  u.  McClure,  8  Greg.  273.  Nor 
customs  which  do  not  I'orm  part  of  the  law 
merchant,  c.  g.  the  rules  of  a  bioker's 
board.     Goldsmith  v.  Sawyer,  46  Cal.  209. 

(b)  The  following  classes  of  laws  are 
judicially  noticed  :  — 

1°  The  treaties  of  the  United  States, 
their  dates,  and  their  contents.  Mont- 
gomery V.  Deeley,  3  Wise.  709;  Carson 
V.  Smith,  5  Minn.  78;  Dole  v.  Wilson,  16 
Minn.  525;  United  States  v.  Eeynes,  9 
How.  (U.  S.)  127. 

2°  The  public  acts  of  Congress.  Mor- 
ris V.  Davidson,  49  Ga.  361 ;  Canal  Co.  v. 
K.  R.  Co.,  4  Gill  &  J.  (Md.)  1,  63;  Kes- 
sel  V.  Albetis,  56  Baib.  (N.  Y.)  362;  Minis 
V.  Swartz,  37  Tex.  13;  Bird  v.  Com.,  21 
Gratt.  (Va.)800;  Bayly's  Adm'r  y.  Chubb, 
16  Id.  284;  The  Scotia,  14  Wall.  (U.  S. 
171. 

3°  The  public  acts  of  the  legislature  of 
the  State  where  the  court  is  sitting  or  to 
which  it  belongs.  A  public  act  is  usu- 
ally an  act  general  in  its  character  and 
operation,  and  equally  applicable  to  all 
parts  of  the  State.  Yet  there  are  acts 
which  are  considered  public  acts,  but 
which  are  local  because  they  apply  only  to 
certain  localities.  Thus  statutes  prohib- 
iting fishing  in  certain  ponds  or  within 
certain  limits,  although  such  statutes  ap- 
ply only  to  those  localities,  are  public 
statutes,  because  they  are  obligatory  upon 
all  the  citizens  of  the  State.  Burnham  v. 
Webster,  5  Mass.  266,  So  a  statute  regu- 
lating the  lumber  trade  of  a  certain  dis- 
trict is  a  public  act.     Pierce  v.  Kimball, 


9  Greenl.  54.  Or  a  statute  granting  a 
portion  of  the  public  domain,  and  alit-ct- 
ing  the  rights  of  navigation  and  fishing  by 
allowing  improvements  to  be  extended 
into  navigable  water.  Hammond  v.  In- 
loes,  4  Md.  139.  So  is  an  act  regulating 
the  sale  of  li(piors  in  a  particular  locality. 
Levy  V.  State,  6  Ind.  281;  State  v.  Cooper, 
101  N.  C.  688.  Cf.  Inglisv.  State,  61  Ind. 
212. 

It  has  generally  been  held  that  acts  in- 
corporating municipal  corporations,  wheth- 
er general  or  granting  sjiecial  charters,  are 
public  acts.  Albrittin  v.  Huntsville,  60 
Ala.  486;  Ferryman  v.  Greenville,  51  Id. 
510;  Smart  v.  Wetumpka,  24  Id.  112; 
Washington  v.  Finley,  5  Eng.  (Ark.)  423; 
Payne  v.  Treadwell,  16  Cal.  220;  Macey 
V.  Titcombe,  19  Ind.  136;  Johnson  v.  In- 
dianapolis, 16  Id.  227;  Stier  r.  Oskaloosa, 
41  Iowa,  353;  Prell  v.  McDonald,  7  Kans. 
426;  Mass.  Pub.  Stat.  c.  169,  §  68;  State 
V.  Sherman,  42  Mo.  210;  State  v.  Mur- 
freesboro',  11  Humph.  (Tenn.)  217;  Gal- 
lagher V.  State,  10  Tex.  App.  469;  Briggs 
V.  Whipple,  7  Vt.  15;  Terry  v.  Milwaukee, 

15  Wise.    490;  Alexander  v.   Milwaukee, 

16  Id.  247;  Swain  v.  Comstock,  18  Id. 
463. 

The  acts  of  legislature  incorporating 
State  banks  have  also  generally  been  held 
to  be  public  acts,  and  have  been  judicially 
noticed.     Jemison  v.  Planters',  &c.  Bank, 

17  Ala.  754;  Davis  v.  Fulton  Bank.  31 
Ga.  69;  Goidon  v.  Montgomery,  19  Ind. 
110;  Bank  of  Newbury  v.  Greenville  R.  li. 
Co.,  9  Rich.  (S.  C.)  L.  495;  Shaw  v.  State, 
3  Sneed  (Tt-nn.),  86;  Buell  v.  Warner.  33 
Vt.  570;  Hays  v.  Northwestern  Bank,  9 
Gratt.  (Va,)"l27. 

The  general  laws  concerning  the  incor- 
poration of  railways  are  public  acts  which 
are  judicially  noticed  by  the  courts.  Heas- 
ton  V.  Cincinnati,  &c.  R.  R.  Co.,  16  Ind. 
275.  Special  charters  of  incorporation 
granted  to  particular  railways  have  been 
held  to  be  private  acts  which  would  not 
be  judicially  noticed  (Atchison,  &c.  R.  R. 


LAW   OF    EVIDENCE. 


[part  I. 


of  their  own  country,  as  well  ecclesiastical  as  civil,  are  recognized. 


Co.  V.  Blackshire,  10  Kans.  477;  Perry  v. 
New  Orleans,  &c.  R.  R.  Co.,  55  Ala.  413; 
Ohio,  &c.  K.  R.  Co.  v.  Ridge,  5  Blackf. 
(Ind. )  78);  and  have  also  been  held  to  be 
public  act.s  (Wright  v.  Hawkins,  28  Tex. 
452).  The  actual  location  of  the  railroad 
under  its  articles  of  incorpoi'ation  must  be 
proved,  and  will  not  be  judicially  noticed 
by  the  court.  Georgia  Pacific  R.  R.  Co.  v. 
Gaines,  83  Ala.  380.  » 

Any  act  which  is  declared  at  the  time  of 
its  passage  by  the  legislature  to  be  a  pub- 
lic act  will  be  judicially  noticed  by  the 
courts.  Cincinnati,  Haniil.  &  Indian. 
E.  R.  Co.  I'.  Clifford,  113  Ind.  467  ;  Ham- 
mett  V.  Little  Rock,  &c.  R.  R.  Co.,  20 
Ark.  204  ;  Doyle  v.  Bradford,  90  111.  416  ; 
Eel  River,  &c.  Co.  o.  Topp,  16  Ind.  242  ; 
Covington  Drawbridge  Co.  v.  Shepherd,  20 
How.  (U.  S.)  227;'Beaty  v.  Knowler,  4 
Peters  (U.  S.),  152.  And  so  if  by  statute 
the  courts  are  required  to  notice  private 
statutes.  Bixler's  Adm'x  v.  Parker,  3 
Bush  (Kv.),  166;  Halbert  v.  Skyles,  1 
Marsh.  (Kv.)  368  ;  Hart  v.  Baltimore,  &c. 
R.  R.  Co./6  W.  Va.  336. 

Private  acts  are  not  judicially  noticed 
by  courts,  but  must  be  proved.  Broad 
Street  Hotel  Co.  v.  Weaver's  Adm'rs,  57 
Ala.  26  ;  Danville,  &c.  Plank  Road  Co.  v. 
State,  16  Ind.  456  ;  Perdicaris  v.  Trenton, 
&c.  Bridge  Co.,  5  Dutch.  (N.  J.)  367; 
Allegheny  v.  Xelson,  25  Pa.  St.  332.  If 
a  private  statute  is  amended  or  repealed 
by  a  public  statute,  the  private  statute  is 
judicially  noticed.  Lavalle  v.  People,  6 
111.  App.  157.  The  amendment  of  a  pub- 
lic statute,  or  its  repeal,  is  judicially  no- 
ticed. Belmont  v.  Morrill,  69  ile.  314  ; 
State  V.  O'Conner,  13  La.  An.  486  ;  Parent 
V.   Walmsly's  Adm'rs,   20   Ind.   82. 

The  questions  then  arise,  when  does  a 
legislative  resolution  become  a  law  of  which 
the  courts  will  take  judicial  notice,  and 
whether  or  not  the  courts  will  go  behind  the 
rolls  of  the  House  to  ascertain  whether  the 
law  to  which  its  attention  is  called  is,  in 
fact,  the  law  passed  by  the  legislature. 

In  the  case  of  Evans  v.  Brown,  30  Ind. 
514,  this  question  was  raised  and  the  court 
decided  that  it  must  for  itself  ascertain 
what  is  the  public  law  of  the  State,  and 
that  the  court  would  not  look  beyond  the 
enrolled  act  and  its  authentication  to  de- 
termine the  validity  of  the  act.  The  act 
under  consideration  by  the  court  in  that 
case  was  properly  certified  and  had  not 
been  vetoed  and  became  a  law  without  ex- 
ecutive approval.  The  decision  of  the 
court  was  that  when  an  act  appeared  regu- 
lar upon  its  face  and  properly  certified  by 
the  presiding  officers,  and  was  found  with 


the  proper  custodian,  the  courts  would  not 
look  to  the  journals  to  determine  whether 
or  not,  at  the  time  the  bill  was  voted  upon 
and  passed,  there  was  a  quorum  present  in 
each  house,  and  whether  all  the  provisions 
of  the  constitution  had  been  complied  with 
in  its  enactment,  that  in  such  a  case  as  was 
then  before  the  court,  the  attestation  of  the 
presiding  othcers  was  conclusive  evidence 
of  the  regularity  of  the  proceedings,  in 
both  Houses  of  the  General  Assembly,  in 
the  passage  of  the  act ;  that  the  constitu- 
tion of  the  State  declared  the  mode  by 
which  such  bill  should  be  certified,  and  such 
certificate  was  conclusive  as  to  the  regular- 
ity of  its  enactment,  and  should  not  be 
contradicted  by  the  journals.  So,  in  the 
recent  case  of  State  v.  Denny,  118  Ind. 
450,  the  same  question  arose  in  the  case 
of  a  bill  which  was  passed  over  the  veto 
of  the  governor.  The  bill  was  signed  by 
the  president  of  the  Senate  and  the  sjieaker 
of  the  House,  and  attested  by  the  clerk  of 
the  House  ;  there  was  also  a  certificate  of 
the  clerk  of  the  House  and  secretary  of  the 
Senate.  The  certificate  of  the  clerk  of  the 
House  set  forth  the  fact  that  the  bill  was 
on  the  7th  day  of  March,  1889,  returned 
to  the  House  with  the  objections  of  the 
governor,  and  that  the  objections  were 
spread  upon  the  journal,  and  the  bill  again 
passed  by  a  vote  of  fifty-four  ayes  and 
thirty-nine  nays,  and  the  certificate  of 
the  secretary  of  the  Senate  certified  that 
upon  the  bill  having  passed  the  House, 
notwithstanding  the  governor's  objections 
thereto,  the  same  was  transmitted  to  the 
Senate,  and  it  was  then  ordered  that  the 
governor's  objections  be  spread  in  full  upon 
the  journal,  which  was  done  and  the  bill 
passed,  notwithstanding  the  objections  of 
the  governor  thereto,  by  a  vote  of  ayes, 
twenty-seven,  nays,  nineteen.  It  was  urged 
that  the  act  was  not  properly  certified  so  that 
the  courts  would  take  judicial  knowledge 
of  it  as  a  law.  It  was  contended  by  coun- 
sel that  to  entitle  it  to  the  solemnitj'  and 
force  of  the  law  after  it  was  vetoed  by  the 
governor  and  passed  by  both  Houses  of  the 
General  Assembly,  it  must  be  again  at- 
tested by  the  presiding  officers  of  the  two 
Houses  as  required  by  law  on  its  original 
passage ;  that  unless  it  were  so  attested, 
courts  would  not  take  cognizance  of  it  as 
a  law,  but  the  court  held  that  it  would 
only  look  to  the  bill  itself  and  not  to  the 
journals  of  the  two  Houses  of  the  General 
Assembly  to  determine  whether  or  not  the 
bill  was  passed  over  the  objections  of  the 
governor. 

The  laws  of  other  States  or  conntries 
than  the  one  to  which  the  court  belongs 


CHAP.    II.]  THINGS   JUDICIALLY   TAKEN   NOTICE   OF. 


without  proof,  bj  the  courts  of  all  civilized  nations.^     The  seal 

1  Erskine  v.  Murray,  2  Ld.  Kayrn.  1542  ;    Heineccius  ad  Pand.  1.  22,  tit.  3,  §  119  : 
1  Bl.  Comm.  75,  76,  85;   Edie  v.  East  India  Co.,  2  Burr.   1226,  1228  ;   Chandler  v. 

106  U.  S.  546  ;  Ex  parte  Cridland,  3  Ves. 
&  B.,  94,  99  ;  Loyd  v.  Giiibert,  L.  R.  1, 
Q.  B.  115,  129;  s.  c.  6  B.  &  S.,  100, 
142."  In  the  case  last  cited,  Mr.  Justice 
Willes,  delivering  judgment  in  the  Ex- 
chequer Chamber  said  :  "In  order  to  pre- 
clude all  misapprehension  it  may  be  well 
to  add  that  a  party  who  relies  upon  a  right 
or  an  examination  by  foreign  law  is  bound 
to  bring  such  law  properly  before  the  court 
and  establish  it  in  proof ;  otherwise  the 
court,  not  being  entitled  to  notice  such 
law  without  judicial  proof,  must  proceed 
according  to  the  law  of  England." 

Although  the  various  States  of  the 
United  States  are  so  far  foreign  to  each 
other  that  the  laws  of  one  must  be  proved 
in  another,  yet  if  two  States  are  fonned  by 
the  division  of  one,  the  laws  of  the  parent 
State  existing  before  the  division  will  be 
judicially  noticed  in  either  of  the  new 
States.  Arayo  ■;;.  Currel,  1  Mill.  (La.) 
528,  540-541  ;  Malpica  v.  McKown,  Id. 
254  ;  Stokes  v.  Macken,  62  Barb.  (N.  Y.) 
145;  Henthorn  v.  Doe,  1  Blackf.  (Ind.) 
157.  The  Federal  courts,  however,  will 
take  judicial  notice  of  State  laws.  Story, 
J.,  in  Owingsv.  Hall,  9  Pet.  (U.  S.)  624, 
states  the  principle  thus  :  "  The  circuit 
courts  of  the  L^nited  States  are  created  by 
Congress,  not  for  the  purpose  of  adminis- 
tering the  local  law  of  a  single  State  alone, 
but  to  administer  the  laws  of  all  the  States 
in  the  Union,  in  cases  to  which  they  re- 
spectively a])ply.  The  judicial  power  con- 
ferred on  the  general  government  by  the 
Constitution,  extends  to  many  cases  aris- 
ing under  the  laws  of  the  different  States, 
and  this  court  is  called  upon,  in  the  exercise 
of  its  appellate  jurisdiction,  constantly  to 
take  notice  of  and  administer  the  juris- 
prudence of  all  the  States.  That  juiispru- 
dence,  then,  is  in  no  just  sense  a  foreign 
jurisprudence,  to  be  proved  in  the  courts 
of  the  United  States  by  the  ordinary 
modes  of  proof  by  which  the  laws  of  a 
foreign  country  are  to  he  established,  but 
it  is  to  be  judicially  taken  notice  of  in  the 
same  manner  as  the  laws  of  the  United 
States  are  taken  notice  of  by  these  courts." 
Carpenter  y.  Dexter,  8  Wall.  (U.  S.)  513; 
Merrill  v.  Dawson,  1  Hemp.  563  ;  Miller 
V.  McQuerry,  5  McLean,  C.  C.  469  ;  Hinde 
V.  Vattier,  5  Pet.  (U.  S.)  398;  United 
States  V.  Turner,  11  How.  (U.S.)  663; 
United  States  v.  Philadelphia,  lb.  654; 
Jones  V.  Hays,  4  McLean,  C.  C.  521.  In 
Lamar  v.  Micou,  112  U.  S.  452;  S.  C.  114 
U.  S.  218,  the  rule  was  again  affirmed  that 


will  not  be  judiciall}'^  noticed,  whether  pub- 
lic or  private,  statute  or  unwritten,  but 
must  be  proved.  As  to  the  mode  of  proof, 
see  post,  §  486  et  seq.  As  to  the  presump- 
tion when  no  proof  is  made  of  the  law  of 
another  State  or  foreign  country,  see  post, 
Presumptions.  Insurance  Co.  v.  Forchei- 
mer,  86  Ala.  541  ;  Continental  Nat.  Bank 
V.  McGeoch,  73  Wis.  332;  Millard  v.  Truax, 
41  N.  W.  R.  328;  St.  Louis  &  San 
Fran.  R.  R.  Co.  v.  Weaver,  35  Kan.  426  ; 
Polk  V.  Butterfield,  9  Col.  326  ;  Mobile, 
&c.  R.  R.  Co.  V.  Whitney,  39  Ala.  468  ; 
Drake  ;;.  Glover,  30  Id.  382  ;  Cox  v.  Mor- 
row, 14  Ark.  603  ;  Cavender  v.  Guild,  4 
Cal.  250  ;  Simms  v.  Southern  Express 
Co.,  38  Ga.  129  ;  Chumasero  v.  Gilbert, 
24  111.  293  ;  Syme  v.  Stewart,  17  La.  An. 
73  ;  Baltimore,  &c.  R.  R.  Co.  v.  Glenn, 
28  Md,  287  ;  Eastman  v.  Crosby,  8  Allen 
(Mass.),  206;  Kline  v.  Baker,  99  Mass. 
254  ;  Haines  v.  Hanrahan,  105  Mass.  480  ; 
Hoyt  V.  McNeil,  13  Minn.  390  ;  Charlotte 
i;.  Chouteau,  25  Mo.  465  ;  Condit  v.  Black- 
well,  4  Green  (N.  J.),  193  ;  Cutler  r. 
Wright,  22  N.  Y.  472  ;  Hooper  v.  Moore, 
5  Jones  (N.  C. ),  L.  130;  Andenson  v. 
Anderson,  23  Tex.  639  ;  Taylor  v.  Board- 
man,  25  Vt.  581  ;  Ward  v.  Morrison,  Id. 
593  ;  Walsh  v.  Dart,  12  Wise.  635  ; 
Dainese  v.  Hale,  91  U.  S.  13  ;  Strother 
V.  Lucas,  6  Pet.  (U.  S.)  763;  Talbot  v. 
Seaman,  1  Cranch  (U.  S.),  38.  The  sub- 
ject of  judicial  notice  of  foreign  laws  was 
thoroughly  discussed  in  the  case  of  Liver- 
pool Steam  Co.  v.  Phenix  Ins.  Co.,  129 
U.  S.  444.'  In  that  case  it  was  attempted 
to  rely  on  the  law  of  Great  Britain,  but 
the  Circuit  Court  held  that  as  the  law  of 
Great  Britain  had  not  been  set  up  in  the 
answer  nor  proved  as  a  fact,  the  case  must 
be  decided  according  to  the  law  of  the  Fed- 
eral courts  as  a  question  of  general  com- 
Tnercial  law.  The  Supreme  Court  of  the 
United  States  on  appeal  said  :  — 

"The  law  of  Great  Britain  since  the 
Declaration  of  Independence  is  the  law  of  a 
foreign  country,  and  like  any  other  foreign 
law,  is  a  matter  of  fact  which  the  courts 
of  this  country  cannot  be  presumed  to  be 
aci^uainted  with  or  to  have  judicial  knowl- 
edge of,  unless  it  is  pleaded  and  proved. 

"The  rule  that  the  courts  of  one  coun- 
try cannot  take  cognizance  of  the  law  of 
another  without  plea  and  proof  has  been 
constantly  maintained  at  law  and  in  equity 
in  England  and  America.  Church  v.  Hub- 
bard, 2  Cranch,  187,  236;  Ennis  v.  Smith, 
14  How.  400,  426,  427  ;  Pierce  u.  ludseth, 


10 


LAW   OP   EVIDENCE. 


[part  I. 


of  a  notary-public  is  also  judicially  taken  notice  of  by  the  courts, 
he  being  an  officer  recognized  by  the  whole  commercial  world. ^  (c) 
Foreign  Admiralty  and  Maritime  Courts,  too,  being  the  courts 
of  the  civilized  world,  and  of  co-ordinate  jurisdiction,  are  judi- 
cially recognized  everywhere ;  and  their  seals  need  not  be  proved. ^ 
Neither  is  it  necessary  to  prove  things  which  must  have  happened 
according  to  the  ordinary  course  of  nature ;  ^  {d)   nor  to  prove 

Grieves,  2  H.  Bl.  606,  n.  ;  Hex  v.  Sutton,  4  M.  &  S.  542 ;  6  Vin.  Abr.  tit.  Court,  D.; 
1  Rol.  Abr.  526,  D.  Judges  will  also  take  notice  of  the  usual  practice  and  course  of  con- 
vevancina;.  3  Sugd.  Vend.  &  Pur.  28;  Willoughby  v.  Willoughby,  1  T.  R.  772,  per 
Ld.  Hardwicke  ;  Doe  v.  Hilder,  2  B.  &  Aid.  793;  Rowe  v.  Grenfel,  Ry.  &  M.  398, 
per  Abbott,  C.  J.  So,  of  the  general  lien  of  bankers  on  securities  of  their  customers, 
deposited  with  them.     Brandao  v.  Barnett,  3  C.  B.  519. 

2  Anon.,  12  Mod.  345  ;  Wright  v.  Barnard,  2  Esp.  700  ;  Yeaton  v.  Fry,  5  Cranch, 
335  ;  Browne  v.  Philadelphia  Bank,  6  S.  &  R.  484  ;  Chanoine  v.  Fowler,  3  Wend. 
173,  178;  Bayley  on  Bills,  515  (2d  Am.  ed.  by  Phillips  &  Sewall);  Hutcheou  v.  Man- 
nington,  6  Ves.  823. 

3  Croudson  v.  Leonard,  4  Cranch,  435  ;  Rose  v.  Himely,  Id.  292  ;  Church  v.  Hub- 
bart,  2  Cranch,  187;  Thompsons.  Stewart,  3  Conn.  171,  181;  Green  v.  Waller,  2  Ld. 
Rayni.  891,  893  ;  Anon.,  9  Mod.  66  ;  Story  on  the  Conflict  of  Laws,  §  643  ;  Hughes 
V.  Cornelius,  as  stated  by  Lord  Holt,  in  2  Ld.  Raym.  893.  And  see  T.  Raym.  473; 
s.  c.  2  Show.  232.  '*  Rex  v.  Luffe,  8  East,  202  ;  Fay  v.  Prentice,  9  Jur.  876. 


the  Circuit  Courts  of  the  United  States, 
and  the  Supreme  Court  on  appeal  from 
their  decisions,  take  judicial  notice  of  the 
laws  of  the  several  States  of  the  Union  as 
domestic  laws.  If,  however,  upon  writ  of 
error  from  the  Supreme  Court  of  the 
United  States  to  the  highest  court  of  a 
State,  it  appears  that  by  the  law  of  that 
State,  their  courts  do  not  take  judicial 
notice  of  the  law  of  another  State  not 
proved  in  their  courts,  the  Supreme  Court 
will  not  take  judicial  notice  of  such  law. 
Hanley  v.  Donoghue,  116  U.  S.  I  ;  Ren- 
aud  V.  Abbott,  116  U.  S.  277,  285.  On 
the  principle  stated  by  Story,  J.,  supra,  it 
has  been  held  that  on  questions  arising  in 
a  State  court  under  the  constitution  and 
laws  of  the  United  States,  which  might  be 
appealed  to  the  United  States  courts,  e.  g. 
on  giving  full  validity  to  judgments  of 
another  State,  the  State  Courts  will  take 
judicial  notice  of  such  laws  of  other  States 
as  the  United  States  courts  would  on  ap- 
peal. State  of  Ohio  v.  Hinchman,  27  Pa. 
St.  479  ;  Jarvis  y.  Robinson,  21  Wise.  523  ; 
Butcher  v.  Brownsville,  2  Kans.  70;  Paine 
V.  Schenectady,  11  R.  I.  411  ;  Shotwell  v. 
Harrison,  22  Mich.  410  ;  Morse  v.  Hewett, 
28  Mich.  481.  Cf.  Fellows  v.  Menasha, 
1 1  Wise.  558  ;  Salter  v.  Applegate,  3  Zabr. 
(IST.  J.)  115.  In  Tennessee,  by  statute, 
the  Supreme  Court  takes  judicial  notice 
of  the  laws  and  statutes  of  the  other 
States.  Code,  §  3801  ;  Hobbs  v.  Memphis 
R.  R.  Co.,  9  Heisk.  873.  The  rule  that 
foreign  laws  will  not  be  judicially  noticed 
is    also    well   established    in    the    courts 


of  Admiralty.  In  a  recent  case  in  Ad- 
miralty, Mr.  Justice  Bradley  said  :  "If  a 
a  collision  should  occur  in  British  waters, 
at  least  between  British  ships,  and  the  in- 
jured party  should  seek  relief  in  our  courts, 
we  would  administer  justice  according  to 
the  British  law  so  far  as  the  rights  and  lia- 
bilities of  the  parties  were  concerned,  pro- 
vided it  were  shown  what  that  law  was.  If 
not  shown,  we  would  apply  our  own  law  to 
the  case.  In  the  French  or  Dutch  tribunals 
they  would  do  the  same."  The  Scotland, 
105'  U.  S.  24,  29.  And  in  a  recent  English 
case  Sir  Robert  Phillimore  said  :  "  I  have 
no  doubt  whatever  that  those  who  rely 
upon  the  difference  between  the  foreign 
law  and  the  law  of  the  forum,  in  which 
the  case  is  brought,  are  bound  to  estab- 
lish that  difference  bv  competent  evi- 
dence." The  Duero,  L.  R.  2  Ad.  &  Ec. 
393,  397. 

City,  town,  and  county  ordinances,  and 
local  board  rules,  are  not  judicially  noticed 
by  courts  of  general  jurisdiction.  Case  v. 
IMobile,  30  Ala.  538  ;  1  ndianapolis,  &c. 
R.  R.  Co.  V.  Caldwell,  9  Ind.  397;  Garvin 
V.  Wells,  8  Iowa,  286  ;  Lucker  v.  Com., 
4  Bush  (Ky.),  440;  Hassard  v.  Muni- 
cipality, 7  La.  An.  495  ;  Winona  v.  Burke, 
23  Minn.  254  ;  Mooney  v.  Kennet,  19 
Mo.  551;  Porter  v.  Waring,  69  N.  Y. 
250;  Palmer  v.  Aldridge,  16  Barb.  (N.  Y.) 
131. 

(c)  Denmead  v.  Maack,  2  McArth. 
(D.  C.)  475  ;  Porter  v.  Judson,  1  Gray 
(Mass.),  175. 

{d)  The  courts  will  notice  the  succes- 


CHAP.    II.]  THINGS    JUDICIALLY   TAKEN    NOTICE   OF. 


11 


the  course  of  time,  or  of  the  heavenly  bodies ;  nor  the  ordinary 
public  fasts  and  festivals;  nor  the  coincidence  of  days  of  the 
week  with  days  of  the  month  ;^(g)  nor  the  meaning  of  words 
in  the  vernacular  language ;"(/)  nor  the  legal  weights  and  meas- 

5  6  Vin.  Abr.  491,  ])!.  6,  7,  S  ;  Hoyle  v.  Cornwallis,  1  Str.  387  ;  Page  v.  Faucet, 
Cro.  El.  227  ;  Haivy  v.  Hroad,  2  Salk.  C2G  ;  Ilansou  v.  Shaukeltoji,  4  Dowl.  48  , 
Davvkius  v.  Siiiithwick,  4  Fla.  158. 

6  Cleaienti*v.  Golding,  2  Caiii[)b.  25  ;  Commonwealth  v.  Knet'laiul,  20  Pick.  239. 


.■sion  of  the  seasons.  Ross  v.  Boswell,  60 
Ind.  235 ;  Toiulinson  v.  Gieenticld,  31 
Ark.  557  ;  Floyd  v.  Kirks,  14  Ark.  286  ; 
Hunter  v.  New  York,  0.  &  W.  R.  R,  Co., 
116  N .  Y.  622.  But  not  particular  changes 
of  weather  at  special  times.  Dixon  v. 
Niccolls,  39  111.  372.  The  court  is  not 
bound  to  take  judicial  notice  of  matters  of 
fact  brought  to  its  attention,  unless  such 
books  or  other  docunieutary  evidence  as 
the  court  may  require  to  refresh  its  recol- 
lection ujiou  the  subject  in  question  are 
produced  by  the  party  asking  the  court  to 
judicially  notice  such  facts.  Thus,  when 
a  jiarty  to  a  suit  asks  the  court  to  take 
judicial  notice  of  the  Carlisle  and  other 
life  tables  for  the  jiurpose  of  showing  the 
"  expectation  "  and  probable  duration  of 
life,  the  court  may  require  the  party  to 
produce  the  tables,  and  if  they  then  ap- 
pear to  the  court  to  be  genuine  and  au- 
thoritative, they  will  be  used  by  the  court 
to  inform  itself  in  the  premises  and  will 
be  judiciallv  noticed.  Seheffler  v.  llinne- 
apolis  &  St."^  Louis  Ry.  Co.,  32  Minn.  521. 
On  similar  grounds  in  the  Western  States, 
in  which  the  land  has  been  laid  out  in  a 
series  of  comprehensive  surveys,  the  courts 
take  judicial  notice  of  the  divisions  and 
subdivisions  of  these  surveys.  Atwater  v. 
Schenck,  9  Wis.  156.  So  the  court  took 
judicial  notice  in  a  recent  case  in  Minne- 
sota that  there  is  and  can  be  but  one 
Township  49,  Range  15,  in  that  State. 
Quinn  v.  Champagne,  38  Minn.  323.  The 
authorities  are  also  in  entire  accord  upon 
the  point  that  the  court  will  take  judicial 
notice  of  the  sucees- ion  of  the  days  of  the 
month  and  their  coincidence  with  the 
days  of  the  week,  aiul  to  refresh  its  mem- 
ory it  will  either  sua  sponie  or  on  the  sug- 
gestion of  counsel  consult  the  chronicles 
or  almanacs,  and  it  is  wholly  immaterial 
whether  the  court  thus  ascertains  the  cor- 
lespondent  dates  by  books  adduced  by  the 
counsel  as  instruments  of  evidence,  or  by 
the  court  itself  on  the  suggestion  of  the 
counsel.  "  The  almanac  in  such  a  case  is 
used  like  statutes,  not  strictly  as  evidence 
but  for  the  purpose  of  refreshing  the  mem- 
ory of  the  court  and  jury."  State  t».  Mor- 
ris, 47  Conn.  179.     So,  in  Reed  v.  Wilson, 


41  N.  J.  L.  29,  there  was  a  declaration  on 
a  note  dated  August  12,  at  four  months, 
and  on  demurrer  showing  inter  alia  that 
the  declaration  showed  demand  and  pro- 
test on  December  14,  one  day  too  soon, 
the  court  took  judicial  notice  that  Decem- 
ber 15  was  Sunday,  and  that  the  demand 
was  made  on  the  proper  day.  In  Phil., 
Wil.  &  B.  R.R.  Co.  V.  Lehman,  56  Md.  226, 
it  was  held  that  "it  was  the  duty  of  the 
court  to  notice  the  days  of  the  week  ou 
which  particular  days  of  the  month  fall  ; 
and  hence  we  note  without  other  aver- 
ment that  the  28th  of  July  was  Sunday." 
In  Mcintosh  v.  Lee,  57  Iowa,  358,  it 
was  said  by  the  court .  •'  The  petition  al- 
leges that  the  defendant  entered  into  a  writ- 
ten lease  on  March  10,  1878.  Courts  take 
judicial  notice  that  the  10th  day  of  ]\Iarch, 
1878,  was  Sunday."  So,  in  a  recent  case 
in  Pennsylvania,  the  court  allowed  coun- 
sel to  refer  to  the  almanac  to  show  in  sup- 
port of  his  argument  against  the  testimony 
of  the  witness  that  a  certain  day  in  1865 
fell  upon  Sunday.  Wilson  v.  Vau  Leer, 
127  Pa.  St.  278. 

(f)  Sju'owl  V.  Lawrence,  33  Ala.  674  ; 
Allmau  V.  Owen,  31  Id.  167  ;  Sasscer  v. 
Farmers'  Bank,  4  Md.  409  ;  Reed  v.  Wil- 
son, 41  N.  J.  L.  29  ;  Holman  v.  Burrow, 
2  Ld.  Raym.  795.  The  difference  in  time 
in  different  longitudes  will  be  judicially 
noticed.  Curtis  v.  Marsh,  4  Jur.  x,  s. 
1112.  And  the  day  of  general  elections. 
Davis  V.  Best,  2  Iowa,  96  ;  State  v.  Min- 
nick,  15  Iowa,  123  ;  Ellis  v.  Reddin,  12 
Kans.  306. 

(/)  Hill  V.  Bacon,  43  111.  477.  The  judi- 
cial notice  of  the  meaning  of  abbreviations 
must  depend  very  nuich  on  the  usages  of 
the  State  where  the  court  sits.  It  has 
been  held  that  the  court  knows  judi- 
ciallv that  "  Adm'r,"  means  administrator 
(Moseley's  Adm'r  v.  Mastin,  37  Ala.  216); 
but  not  that  "Mo."  means  "Jlissouri" 
(Ellis  V.  Park,  8  Tex.  205)  ;  nor  that 
"  La."  means  Louisiana.  Russell  v.  Mar- 
tin, 15  Tex.  238. 

Terms  of  local  use  must  have  their 
meaning  proved  ;  e.  g.  "  Black  Repub- 
licans." Baltimore  v.  State,  15  Md.  376. 
So     the     proper    mode    of    writing    and 


12 


LAW   OF    EVIDENCE. 


[part  I. 


ures;^  (g)  nor  any  matters  of  public  history,  affecting  the  whole 
people;^ (A)  nor  public  matters,  affecting  the  government  of  the 
country.^ 

7  Hockin  v.  Cooke,  4  T.  R.  314.  The  current  coins  of  the  country,  whether  estab- 
lished by  statute  or  existing  iranieinorially,  will  be  judicially  recognized.  The  courts 
will  also  take  notice  of  the  character  of  the  existing  circulating  medium,  and  of  the 
popular  language  in  reference  to  it  (Lampton  v.  Haggard,  3  Monr.  149  ;  Jones  v.  Over- 
street,  4  Monr.  547);  {i)  but  not  of  the  current  value  of  the  notes  of  a  bank  at  any 
particular  time.     Feemster  v.  Ringo,  5  Monr.  336. 

8  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  590;  1  Stark.  Ev.  211  (6th  Am.  ed.). 

3  Taylor  v.  Barclay,  2  Sim.  221.  Where  a  libel  was  charged,  in  stating  that  the 
plaintiff's  friends,  in  the  advocacy  of  her  claims,  "  had  realized  the  fable  of  the  Frozen 
Snake,"  it  was  held  that  the  court  might  judicially  take  notice  that  the  knowledge  of 
that  fable  of  Phajdrus  generally  prevailed  iu  society.  Hoare  v.  Silverlock,  12  Jur. 
695  ;  12  Q.  B.  624. 


speaking  words   in    a    foreign  language. 
State  V.  Johnson,  26  Minn.  316. 

{g)  When  any  art,    science,  or  process 
of  manufacture   lias  become  a  matter   of 
common  knowledge,  its  leading  principles 
and    results   will    be    judicially   noticed. 
Thus,  the  court  will  take  judicial  notice 
that  the  process  of  photography  produces 
a  correct  likeness  of  any  object.     Luke  v. 
Calhoun,  52  Ala.  115  ;   Udderzook's  Case, 
76  Pa.  St.   340  ;    Cozzens  v.    Higgins,   1 
Abb.    (X.  Y.)  App.   Dec.   451.     S a,  that 
whiskey  is  an  intoxicating  liquor  (Schlicht 
V.   State,    56  Ind.    173  ;    Eagan  v.   State, 
53  Id.  162  ;   Klare  v.  State,  43  Id.  483  ; 
Com.    V.     Peckham,     2     Gray     (Mass.), 
514)  ;   that  beer  is  a  malt  liquor  (Adler  v. 
State,  55  Ala.  16  ;   State  v.   Goyette,  11 
R.  I.  592)  ;  but  not  that  malt  liquors  are 
intoxicating.    Shaw  v.  State,  56  Ind.  188. 
The  power  of  the  court  as  to  taking  judi- 
cial notice  of  matters  of  fact  was  strongly 
set    forth    in    a    case    in    Massachusetts 
(Cora.  V.  Marzynski,  149  Mass.  72),  where 
one    was    indicted    for   selling   cigars   on 
Sunday,   contrary  to   the    statute.      The 
court  says:   " Ordinarily,  whether  a  sub- 
stance or  article  comes  within  a  given  de- 
scription is  a  question  of  fact,  but  some 
facts  are  so  obvious  and  familiar  that  the 
law   takes   notice   of  them    and   receives 
them  into  its  domain.     If  the  proof  had 
been  that  the  shop  had  been  kept  open  for 
the  purpose  of  selling  guns  or  pistols,  it 
would  hardly  be  contended  that  the  juilge 
might  not   properly  have  ruled  that   the 
sale   of  these   articles  was   not  a  sale  of 
drugs  or  medicines.     The  court  has  judi- 
cial knowledge  of  the  meaning  of  common 
words  and  may  well  rule  that  guns  and 
pistols  are  'not  drugs  or   medicines,   and 
may  exclude   the    opinions   of    witnesses 
who  offer  to  testify  that  they  are."     Com. 
I'.  Peckham,  2  Gray,  514  ;  Com.  v.  Crowlev, 
145  Mass.  430. 


"  Cigars  are  manufactured  articles  fa- 
miliar to  everybody,  the  materials  of 
which  they  are  composed  are  carefully 
prepared  and  put  into  form  until  they  lose 
their  original  character  as  mere  materials 
and  become  articles  of  commerce  known 
by  a  new  name  and  adapted  to  a  particular 
use.  We  are  of  the  opinion  that  cigars 
sold  by  a  tobacconist  in  the  ordinary  way, 
are  not  drugs  or  medicines,  within  the 
meaning  of  those  words  as  used  in  the 
statute."  Com.  i'.  Marzynski,  149  Mass.  72. 
{h)  Ashley  v.  Martin,  50  Ala.  537  ; 
Hunter  v.  Xew  York,  0.  &  W.  R.  R.  Co., 
116  N.  Y.  621  ;  Foscue  v.  Lyon,  55  Id. 
440;  Worcester  Bank  v.  Cheney,  94  111. 
430  ;  e.  g.  the  Civil  War  of  1861- 
1865  (Cuyler  v.  Ferrill,  1  Abb.  (U.  S.) 
169;  Simmons  v.  Trumbo,  9  W.  Va.  358  ; 
The  Peterhoff,  Blatchf.  Prize  Cas.  463),  the 
suspension  of  the  statute  of  limitations 
during  that  time.  East,  &c.  Co.  v.  Gas- 
kell,  2  Lea  (Tenn.),  748. 

The  courts  will  also  judicially  notice 
the  general  geographical  features  of  the  ■ 
State.  Winnepiseogee  Lake  Co.  v.  Young, 
40  N.  H.  420  ;  Hinckley  v.  Beckwith,  23 
Wis.  328  ;  Morsman  v.  Forrest,  27  Ind. 
233  ;  Neaderhouser  v.  State,  28  Id. 
257  ;  Cooke  v.  Wilson,  1  C.  B.  N.  s.  153. 
Thus  it  was  held  in  Com.  v.  King, 
150  Mass.  224,  that  the  superior  court 
might  take  judicial  notice  that  the  Con- 
necticut River  above  the  dam  at  Holyoke 
does  not,  either  by  itself  or  by  uniting 
other  waters,  constitute  a  public  highway 
over  which  commerce  may  be  carried  on 
with  other  States,  or  with  foreign  coun- 
tries, although  if  the  court  had  entertained 
any  doubt  on  the  subject,  it  might  have 
required  evidence  to  be  produced. 

(?■)  United  States  v.  Bums,  5  McLean, 
C.  C.  23  ;  United  States  v.  American 
Gold  Coins,  1  Woolw.  217.  And  the  cur- 
rency of  the  State  at  a  given  time  (Buford 


CHAP.    II.]  THINGS   JUDICIALLY   TAKEN   NOTICE   OF.  13 

§  6.  Political  divisions,  events,  and  public  officers.  Courts  also 
take  notice  of  the  tcnitorial  extent  of  the  jurisdiction  and  sov- 
ereignty, exercised  de  facto  by  their  own  government ;  and  of  the 
local  divisions  of  their  country,  as  into  states,  provinces,  coun- 
ties, cities,  towns,  local  parishes,  or  the  like,  so  far  as  political 
government  is  concerned  or  affected;  and  of  the  relative  posi- 
tions of  such  local  divisions;  but  not  of  their  precise  boundaries, 
farther  than  they  may  be  described  in  public  statutes.^  {a)  They 
will  also  judicially  recognize  the  political  constitution  or  frame 
of  their  own  government;  its  essential  political  agents  or  public 
officers,  sharing  in  its  regular  administration  ;  and  its  essential 
and  regular  political  operations,  powers  and  action.  Thus, 
notice  is  taken,  by  all  tribunals,  of  the  accession  of  the  Chief 
Executive  of  the  nation  or  state,  under  whose  authority  they  act; 
his  powers  and  privileges  ;2  (J)  the  genuineness  of  his  signa- 
ture,^ (c)  the  heads  of  departments,  and  principal  officers  of  state, 
and  the  public  seals ;  "*  {d)  the  election  or  resignation  of  a  senator 
of  the  United  States;  the  appointment  of  a  cabinet  or  foreign 
minister;^  marshals  and  sheriffs,^  and  the  genuineness  of  their 
signatures,'^  but  not  their  deputies;  (e)  courts  of  general  jurisdic- 

1  Deybel's  Case,  4  B.  &  Aid.  242  ;  2  Inst.  557  ;  Fazakerley  v.  Wiltshire,  1  Str. 
469  ;  Humphreys  v.  Budd,  9  Dowl.  1000  ;  Ross  v.  lleddick,  1  Scam.  73 ;  Goodwin  v. 
Appleton,  9  Shepl.  453  ;  Vanderwerker  v.  People,  5  Wend.  530. 

^  Elderton's  Case,  2  Ld.  Raym.  980,  per  Holt,  C.  J. 

3  Jones  V.  Gale's  Ex'r,  4  Martin,  635.  And  see  Rex  v.  Miller,  2  W,  Bl.  797  ;  1 
Leach,  Cr.  Cas.  74  ;  Rex  v.  Gully,  1  Leach,  Cr.  Cas.  98. 

*  Rex  V.  Jones,  2  Campb.  131  ;  Bennett  v.  State  of  Tennessee,  Mart.  &  Yerg.  133, 
Ld.  Melville's  Case,  29  How.  St.  Tr.  707.  And  see,  as  to  seals,  infra,  §  503,  and  cases 
tlicFG  cited  t 

5  Walden  v.  Canfield,  2  Rob.  La.  466. 

6  Holman  v.  Burrow,  2  Ld.  Raym.  794. 

^  Alcock  V.  Whatmore,  8  Dowl".  P.  C.  615. 

V.  Tucker,  44  Ala.  89  ;  Simmons  v.  v.  "Versailles  Turnpike  Co.,  57  Ind.  457 ; 
Trumbo,  9  W.  Va.  358)  ;  but  not  the  tem-  Martin  v.  Martin,  51  Me.  366,  and  cases 
porary  fluctuations  in  value.  Modawell  v.  supra.  Also  of  divisions  of  lands  by  pub- 
Holmes,  40  Ala.  391;  cf.  Bryant  v.  Foot,  lie  surveys  of  Congress.  Lewis  v.  Harris, 
L.  R.  3  Q.  B.  497  ;  37  L.  J,  Q.  B.  217  ;  31  Ala.  689  ;  Gardner  v.  Eberhart,  82  111. 
Hart  V.  State,  55  Ind.  599.  316  ;  Murphy  v.  Hendricks,  57  Ind.  593. 
(a)  State  v.  Dunwell,  3  R.  I.  127  ;  (h)  Lindsey  v.  Attorney  General,  33 
Boston  V.  State,  5  Tex.  App.  383  ;  Good-  Miss.  508  ;  Wells  v.  Company,  47  N.  H. 
ing  V.  Morgan,  70  111.  275  ;  Ham  v.  Ham,  235  ;  Dewees  v.  Colorado  Co.,  32  Tex.  570. 
39  Me.  263 ;  Com.  v.  Desmond,  103  (c)  Yount  v.  Howell,  14  Cal.  465. 
Mass.  445  ;  Beebe  v.  United  States,  11  (d)  Yount  v.  Howell,  supra.  So,  of 
N.  W.  Rep.  505.  The  courts  will  also  the  head  of  the  Patent  Office.  York,  &c. 
take  judicial  notice  whether  a  city  or  R.  R.  Co.  v.  Winans,  17  How.  (U.  S.)  30. 
town  is  in  the  State.  King  v.  Kent's  In  Louisiana  it  has  been  held  that  the 
Adm'r,  29  Ala.  542  ;  Com.  v.  Desmond,  courts  will  notice  the  signatures  of  all  ex- 
sicpra ;  Cnmmings  v.  Stone,  13  Mich.  70  ;  ecutive  and  judicial  officers  to  all  official 
Solver  V.  Romanet,  52  Tex.  562  ;  Boston  acts.  See  note  9,  an<l  note  h. 
V.  State,  supra;  and  if  so,  in  what  county,  (c)  Ingram  v.  State,  27  Ala.  17  ;  Thiel- 
Smitha  v.  Flonrnoy's  Adm'r,  47  Ala.  345  ;  mann  v.  P.urg,  73  111.  293  ;  Major  v.  State, 
State  V.  Powers,  25  Conn.  48;  Steinmetz  2  Sneed  (Tenn.),   11  ;  Alford  v.   State,  8 


14  LAW   OF   EVIDENCE.  [PART    I. 

tion,  their  judges,^  their  seals,  their  rules  and  maxims  in  the 
administration  of  justice,  and  course  of  proceeding ;^(/)  also,  of 
public  proclamations  of  war  and  peace, ^'^  and  of  days  of  special 
public  fasts  and  thanksgivings;  stated  days  of  general  political 
elections ;  the  sittings  of  the  legislature,  and  its  established  and 
usual  course  of  proceeding;  the  privileges  of  its  members,  but 
not  the  transactions  on  its  journals.  ^^  The  courts  of  the  United 
States,  moreover,  take  judicial  notice  of  the  ports  and  waters  of 
the  United  States  in  which  the  tide  ebbs  and  flows ;  of  the  boun- 
daries of  the  several  States  and  judicial  districts ;  ^^  {g)  and,  in  an 
especial  manner,  of  all  the  laws  and  jurisprudence  of  the  several 
States  in  which  they  exercise  an  original  or  an  appellate  juris- 
diction. The  judges  of  the  Supreme  Court  of  the  United  States 
are,  on  this  account,  bound  to  take  judicial  notice  of  the  laws 

«  Watson  V.  Hay,  3  Kerr,  559. 

9  Tregany  v.  Fletcher,  1  Ld.  Raym.  154  ;  Lane's  Case,  2  Co.  16  ;  3  Com.  Dig.  357 ; 
Courts,  Q.  ;  Newell  v.  Newton,  10  Pick.  470  ;  Elliott  v.  Edwards,  3  B.  &  P.  183,  184, 
per  Ld.  Alvanle}',  C.  J.  ;  Maberley  v.  Robins,  5  Taunt.  625  ;  Tooker  v.  Duke  of  Beau- 
fort, Sayer,  297.  Whether  superior  courts  are  bound  to  take  notice  who  are  justices 
of  the  inferior  tribunals,  is  not  clearly  settled.  In  Skipp  r.  Hooke,  2  Str.  1080,  it  was 
objected  that  they  were  not ;  but  whether  the  case  was  decided  on  that  or  on  the  other 
exception  taken  does  not  appear.  Andrews,  74,  reports  the  same  case,  ex  relatione  al- 
terius,  and  equally  doubtful.  And  see  Van  Sandau  v.  Turner,  6  Q.  B.  773,  786,  per 
Ld.  Denman.  The  weight  of  American  authorities  seems  rather  on  the  affirmative  side 
of  the  question.  Hawkes  v.  Kennebeck,  7  Mass.  461  ;  Papley  v.  Warren,  2  Pick.  592  ; 
Despau  v.  Swindler,  3  Martin  N.  s.  705  ;  Follain  v.  Lefevre,  3  Piob.  (La.)  13.  {h)  In 
Louisiana,  the  courts  take  notice  of  the  signatures  of  executive  and  judicial  officers  to 
all  official  acts.     Jones  v.  Gale's  Ex'r,  4  Martin,  635  ;  Wood  v.  Fitz,  10  Martin,  196. 

w  Dolder  v.  Ld.  Huntingfield,  11  Ves.  292  ;  Rex  v.  De  Berenger,  3  M.  &  S.  67  ; 
Taylor  v.  Barclay,  2  Sim.  213. 

"  Lake  i-.  Kiiig,  1  Saund.  131  ;  Birt  v.  Rothwell,  1  Ld.  Ravra.  210,  343  ;  Rex  v. 
Wilde,  1  Lev.  296;  1  Doug.  97,  n.  41  ;  Rex  v.  Arundel,  Hob.  109-111  ;  Rex  v. 
Knollys,  1  Ld.  Raym.  10,  15  ;  Stockdale  v.  Hansard,  7  C.  &  P.  731  ;  9  Ad.  &  El.  1 ; 
11  Ad.  &  El.  253  ;  Sheriff  v.  Middlesex's  Case,  Id.  273  ;  Cassidy  v.  Steuart,  2  M.  &  G. 
437. 

12  Story  on  Eq.  Plead.  §  24,  cites  United  States  v.  La  Vengeance,  3  DalL  297  ; 
The  Apollon,  9  Wheat.  374  ;  The  Thoma.s  Jefferson,  10  Wheat.  428  ;  Pe3Toux  v.  How- 
ard, 7  Pet.  342.  They  will  also  recognize  the  usual  course  of  the  great  inland  com- 
merce, by  which  the  products  of  agriculture  in  the  valley  of  the  Mississippi  find  their 
way  to  market.     Gibson  v.  Stevens,  8  How.  (S.  C.)  384. 

Tex.  App.  545  ;  Ward  v.  Henry,  19  Wis.  in  the  same  court  are  judicially  noticed 
76.  (Dawson  v.  Dawson,  29  Mo.  App.  523 ; 
(/)  A  court  will  judicially  notice  the  State  v.  Bowen,  16  Kans.  475  ;  Pagett  v. 
date  of  the  beginning  of  its  own  terms  Curtis,  15  La.  An.  451  ;  Brucker  v.  State, 
(Kidder  i;.  Blaisdell,  45  Me.  461)  ;  and  the  19  Wis.  539)  ;  but  the  records  or  proceed- 
number  of  days  any  term  lasts.  Fabyan  ing  in  one  case  will  not  be  noticed  in 
V.  Russell,  38  N.  H.  84.  Also  the  day  another  case,  though  in  the  same  court, 
fixed  by  law  for  the  beginning  of  the  terms  Merced  Water  Co.  v.  Cowles,  31  Cal.  215  ; 
of  other  courts  of  general  jurisdiction,  the  Baker  v.  Mygatt,  14  Iowa,  131  ;  Monti- 
place,  and  duration  of  the  term.  Rodgers  cello  v.  Bryant,  13  Bush  (Ky.),  419  ;  Banks 
V.  State,  50  Ala.  103  ;  Ross  v.  Anstill,  2  v.  Burnam,  61  Mo.  76. 
Cal.  183  ;  Spencer  v.  Curtis,  57  Ind.  221  ;  (r/)  Lathrop  v.  Stewart,  5  McLean,  C. 
Dorraan  v.  State,  56  Id.  454  ;  Davidson  v.  C.  167. 
Peticolas,  34  Tex.  27.     Prior  proceedings          (h)  Kennedy  i\  Com.,  78  Ky.  447 ;  Kil- 


CHAP.    II.]  THINGS   JUDICIALLY   TAKEN   NOTICE   OF. 


15 


and  jurisprudence  of  all  the  States  and  Territories.^^  (^)  A  court 
of  errors  will  also  take  notice  of  the  nature  and  extent  of  the 
jurisdiction  of  the  inferior  court  whose  judgment  it  revises."  (y) 
In  fine,  courts  will  generally  take  notice  of  whatever  ought  to  be 
generally  known  within  the  limits  of  their  jurisdiction.  In  all 
these  and  the  like  cases,  where  the  memory  of  the  judge  is  at 
fault,  he  resorts  to  such  documents  of  reference  as  may  be  at 
hand,  and  he  may  deem  worthy  of  confidence.  ^^  (k) 

18  Ibid.  ;  Owiiigs  v.  Hull,  9  Pet.  607,  624,  625  ;  Jasper  v.  Porter,  2  McLean,  579. 
1*  Chitty  V.  Dendy,  3  Ad.  &  El.  319. 
15  Gresley  on  Evid.,  395. 

59.  The  judge  may  inform  himself  of  such 
facts,  in  any  way,  which  he  may  deem  best 
in  his  discretion.  United  States  v.  Tesch- 
maker,  22  How.  (U.  S.)  392  ;  Wagner's 
Case,  61  Me.  178  ;  McKiunon  v.  Bliss,  21 
N.  Y.  206  ;  Taylor,  Evid.  7th  ed.  §  21  ; 
The  Charkieh,  42  L.  J.  Adm.  17.  And  is 
not  obliged  to  take  judicial  notice  of  any 
of  these  matters  of  fact,  but  is  at  liberty  to 
do  so  in  his  discretion.  The  exercise  of 
this  discretion  depends  upon  the  nature  of 
the  subject  usually  involved,  and  the  ap- 
parent justice  of  the  case.  Hunter  v.  New 
York,  0.  &  W.  R.  R.  Co.,  116  N.  Y. 
621. 


Patrick  v.  Com.,  31  Pa.  St.  198;  Com.  v. 
Jeffts,  14  Gray  (Mass.),  19  ;  ^x  parte 
Peterson,  33  Ala.  74.  Cf.  Graham  v.  An- 
derson, 42  111.  514.  In  a  recent  case  in 
Massachusetts,  however,  it  was  held  that 
the  court  would  not  take  judicial  notice  of 
officials  of  the  courts  of  inferior  jurisdic- 
tion.    Davis  V.  McEnaney,  150  Mass.  452. 

{i)  See  cmte,  §  5,  note  a,  p.  8. 

{/)  March  v.  Com.,  12  B.  Men.  25. 

(k)  Or  to  any  person,  or  may  refuse  to 
take  judicial  notice  of  such  facts,  unless 
the  j)arty  calling  upon  him  to  take  such 
notice  produces  books  or  documents  which 
satisfy   Mm.     Stephen,   Dig.   Evid.    Art. 


16  LAW   OP   EVIDENCE.  [PART   I. 


CHAPTER  III. 

OF   THE   GROUNDS   OP   BELIEF. 

§  7.  Personal  experience.  We  proceed  now  to  a  brief  consid- 
eration of  the  Greneral  Nature  and  Principles  of  Evidence,  No 
inquiry  is  here  proposed  into  the  origin  of  human  knowledge ;  it 
being  assumed,  on  the  authority  of  approved  writers,  that  all 
that  men  know  is  referable,  in  a  philosophical  view,  to  percep- 
tion and  reflection.  But,  in  fact,  the  knowledge  acquired  by  an 
individual,  through  his  own  perception  and  reflection,  is  but  a 
small  part  of  what  he  possesses ;  much  of  what  we  are  content 
to  regard  and  act  upon  as  knowledge  having  been  acquired 
through  the  perception  of  others.^  It  is  not  easy  to  conceive 
that  the  Supreme  Being,  whose  wisdom  is  so  conspicuous  in  all 
his  works,  constituted  man  to  believe  only  upon  his  own  per- 
sonal experience ;  since  in  that  case  the  world  could  neither  be 
governed  nor  improved ;  and  society  must  remain  in  the  state  in 
which  it  was  left  by  the  first  generation  of  men.  On  the  con- 
trary, during  the  period  of  childhood,  we  believe  implicitly 
almost  all  that  is  told  us,  and  thus  are  furnished  with  informa- 
tion which  we  could  not  otherwise  obtain,  but  which  is  neces- 
sary, at  the  time,  for  our  present  protection,  or  as  the  means  of 
future  improvement.  This  disposition  to  believe  may  be  termed 
instinctive.  At  an  early  period,  however,  we  begin  to  find  that, 
of  the  things  told  to  us,  some  are  not  true,  and  thus  our  implicit 
reliance  on  the  testimony  of  others  is  weakened :  first,  in  regard 
to  particular  things  in  which  we  have  been  deceived;  then  in 
regard  to  persons  whose  falsehood  we  have  detected;  and,  as 
these  instances  multiply  upon  us,  we  gradually  become  more  and 
more  distrustful  of  such  statements,  and  learn  by  experience  the 
necessity  of  testing  them  by  certain  rules.  Thus,  as  our  ability 
to  obtain  knowledge  by  other  means  increases,  our  instinctive 
reliance  on  testimony  diminishes,  by  yielding  to  a  more  rational 
Delief.2 

^  AbercromTsie  on  the  Intellectual  Powers,  part  2,  §  1,  pp.  45,  46. 

2  Gambier's  Guide,  p.  87  ;  McKinnon's  Philosophy  of  Evidence,  p.  40.  This 
subject  is  treated  more  largely  by  Dr.  Reid  in  his  profound  "  Inquiry  into  the  Human 
Mind,"  ch.  6,  §  24  pp.  428-434,  in  these  words:  "The  wise  and  beneficent  Authoi 


CHAP.    III.]  GROUNDS   OF    BELIEF.  17 

§  8.   Experience  of  others.     It  is  ti'uc,  that,   in  receiving  the 
knowledge  of  facts  from  the  testimony  of  others,  we  are  much  in- 

of  Nature,  who  intended  that  we  should  be  social  creatures,  and  that  we  should  receive 
the  greatest  and  most  iinj)ortaut  i)art  of  our  knowledge  by  the  information  of  otliers, 
hath,  for  these  purposes,  implanted  in  our  natures  two  principles  that  tally  with  each 
other.  The  first  of  these  jtrinciples  is  a  propensity  to  speak  truth  and  to  use  the  signs 
of  language,  so  as  to  convey  our  real  sentiments.  Tliis  principle  has  a  powerful  opera- 
tion, even  in  the  greatest  liars  ;  for  where  they  lie  once  they  sjteak  truth  a  hundied 
times.  Truth  is  always  uppermost,  and  is  the  natural  issue  of  tlie  mind.  It  requires 
no  art  or  training,  no  inducement  or  temptation,  l)ut  only,  that  we  yield  to  a  natural 
impulse.  Lying,  on  the  contrary,  is  doing  violence  to  our  nature  ;  and  is  never 
practised,  even  by  the  worst  m(!n,  without  some  temptation.  Speaking  truth  is  like 
using  our  natural  food,  which  we  would  do  from  appetite,  altliough  it  answered  no 
end  ;  but  lying  is  like  taking  physic,  which  is  nauseous  to  the  taste,  and  which  no 
man  takes  but  for  some  end  which  he  cannot  otiierwise  attain.  If  it  should  ])e 
objected,  that  men  may  be  influenced  by  moi-al  or  political  considerations  to  speak 
truth,  and,  therefore,  that  their  doing  so  is  no  proof  of  such  an  original  principle  as 
we  have  mentioned  ;  I  answer  first,  that  moral  or  political  considerations  can  have  no 
influence  until  we  arrive  at  years  of  understanding  and  reflection  ;  and  it  is  ceitain, 
from  experience,  that  children  keep  to  truth  invariably,  before  they  are  capable  of  being 
influenced  by  such  considerations.  Secondly,  when  we  are  influenced  by  moral  or 
jjolitical  considerations,  we  must  be  conscious  of  that  influence,  and  capable  of  perceiv- 
ing it  upon  reflection.  Now,  when  I  reflect  upon  my  actions  most  attentively,  I  am 
not  conscious  that,  in  speaking  truth,  I  am  influenced  on  ordinary  occasions  by  any 
motive,  moral  or  political.  I  find  that  truth  is  always  at  the  door  of  my  li]is,  and  goes 
forth  spontaneously,  if  not  held  back.  It  requires  neither  good  nor  bad  intention  to 
bring  it  forth,  but  only  that  I  be  artless  and  undesigning.  There  may,  indeed,  be  temp- 
tations to  falsehood,  which  would  be  too  strong  for  the  natural  principle  of  veracity, 
unaided  by  principles  of  honor  or  virtue  ;  but  where  there  is  no  such  temptation,  we- 
speak  truth  by  instinct ;  and  this  instinct  is  the  principle  I  have  been  explaining.  By 
tins  instinct,  a  real  connection  is  formed  between  our  words  and  our  thoughts,  and 
thereby  the  former  become  fit  to  be  signs  of  the  latter,  which  they  could  not  otherwise 
be.  And  although  this  connection  is  broken  in  everj-  instance  of  lying  and  equivoca- 
tion, j'et  these  instances  being  comparatively  few  the  authority  of  human  testimony  is^ 
oidy  weakened  bj^  them,  but  not  destroyed.  Another  original  principle,  implanted  in 
us  iDy  the  Suj)rorae  Being,  is  a  disposition  to  confide  in  the  veracity  of  others,  and  to 
believe  what  tliey  tell  us.  This  is  the  counterjiart  to  the  former  ;  and  as  that  tnay  be 
called  the  piinciple  of  veracity,  we  shall  for  want  of  a  more  proper  name,  call  this  the 
lirinciple  of  credulity.  It  is  unlimited  in  children,  until  they  meet  with  instances  of  de- 
ceit and  falsehood  ;  and  it  retains  a  very  considcralile  degree  of  strength  through  life. 
If  nature  had  left  the  mind  of  the  speaker  in  crqnilibrio,  without  any  inclination  to  the 
side  of  truth  more  than  to  that  of  falsehood,  children  would  lie  as  often  as  they  speak 
truth,  until  reason  was  so  far  ripened,  as  to  suggest  the  imprudence  of  lying,  or  con- 
science, as  to  suggest  its  immorality.  And  if  nature  had  left  the  mind  of  the  hearer 
in  ccquilihrio,  witliout  any  inclination  to  the  side  of  belief  more  than  to  that  of  disbe- 
lief, we  should  take  no  mail's  word,  until  we  had  positive  evidence  that  he  s]ioke  truth. 
His  testimony  would,  in  this  case,  have  no  more  authority  tlian  his  dreams,  which  may 
be  true  or  false  ;  but  no  man  is  disposed  to  believe  them,  on  this  account,  that  they 
were  dreamed.  It  is  evident,  that,  in  the  matter  of  testimony,  the  balance  of  human 
judgment  is  by  nature  inclined  to  the  side  of  belief  :  and  turns  to  that  side  of  itself, 
when  there  is  nothing  put  into  the  ojiposite  scale.  If  it  was  not  so,  no  ju'oposition  that 
is  uttered  in  discourse  would  be  believed,  until  it  was  examined  and  tried  by  reason  ; 
and  most  men  would  be  unable  to  find  reasons  for  believing  the  thousandth  part  of 
what  is  told  them.  Such  distrust  and  incredulity  would  deprive  us  of  the  greatest  ben- 
efits of  society,  and  place  us  in  a  worse  condition  than  that  of  savages.  Children,  on 
this  supposition,  would  be  absolutely  incredulous,  and  therefore  absolutelj'  incajiable  of 
instruction  ;  those  who  had  little  knowledge  of  human  life  and  of  the  manners  and 
characters  of  men,  would  be  in  the  next  degree  incredulous  ;  and  the  most  credulous 
men  would  be  those  of  greatest  experience  and  of  the  deepest  penetration  ;  because,  in 
many  cases,  they  would  be  able  to  find  good  reasons  for  believing  testimony,  which  the 
weak  and  the  ignorant  could  not  discover.  In  a  word,  if  credulity  were  the  eflTect  of 
reasoning  and  experience,  it  must  grow  up  and  gather  strength  in  the  same  proportion 

vol..   I.  —  2 


18  LAW    OP    EVIDENCE.  [PART    I. 

fluenccd  by  their  accordance  with  facts  previously  known  or 
believed;  and  this  constitutes  what  is  termed  their  probability. 
Statements,  thus  probable,  are  received  upon  evidence  much  less 
cogent  than  we  require  for  the  belief  of  those  which  do  not 
accord  with  our  previous  knowledge.  But  while  these  statements 
are  more  readily  received,  and  justly  relied  upon,  we  should  be- 
ware of  unduly  distrusting  all  others.  While  unbounded  credu- 
lity is  the  attribute  of  weak  minds,  which  seldom  think  or  reason 
at  all, — "quo  magis  ncsciunt  eo  magis  admirantur, "  —  unlim- 
ited scepticism  belongs  only  to  those  who  make  their  own  knowl- 
edge and  observation  the  exclusive  standard  of  probability. 
Thus  the  king  of  Siam  rejected  the  testimony  of  the  Dutch  am- 
bassador, that,  in  his  country,  water  was  sometimes  congealed 
into  a  solid  mass ;  for  it  was  utterly  contrary  to  his  own  experi- 
ence. Sceptical  philosophers,  inconsistently  enough  with  their 
own  principles,  yet  true  to  the  nature  of  man,  continue  to  receive 
a  large  portion  of  their  knowledge  upon  testimony  derived,  not 
from  their  own  experience,  but  from  that  of  other  men ;  and  this, 
even  when  it  is  at  variance  with  much  of  their  own  personal  ob- 
servation. Thus,  the  testimony  of  the  historian  is  received  with 
confidence,  in  regard  to  the  occurrences  of  ancient  times ;  that 
of  the  naturalist  and  the  traveller,  in  regard  to  the  natural  his- 
tory  and  civil  condition  of  other  countries ;  and  that  of  the  as- 
tronomer, respecting  the  heavenly  bodies;  facts,  which,  upon 
the  narrow  basis  of  his  own  "firm  and  unalterable  experience," 

as  reasoning  and  experience  do.  But  if  it  is  tlie  gift  of  nature,  it  will  be  strongest  iu 
childhood,  and  limited  and,  restrained  by  experience  ;  and  the  most  superficial  view  of 
human  life  shows  that  the  last  is  really  the  case,  and  not  the  first.  It  is  the  intention 
of  nature,  that  we  should  be  carried  in  arms  before  we  are  able  to  walk  upon  our  legs  ; 
and  it  is  likewise  the  intention  of  nature,  that  our  belief  should  be  guideil  by  the  author- 
ity and  reason  of  others,  before  it  can  be  guided  by  our  own  reason.  The  weakness  of 
the  infant,  and  the  natural  affection  of  the  mother,  plainly  indicate  the  former;  and  the 
natural  credulity  of  youth  and  authority  of  age  as  plainly  indicate  the  latter.  The  in- 
fant, by  proper  nursing  and  care,  acquires  strength  to  walk  without  support.  Reason 
hath  likewise  her  infancy,  when  she  must  be  carried  in  arms  ;  then  she  leans  entirely 
rrpon  authority,  by  natural  instinct,  as  if  she  was  conscious  of  her  own  weakness  ;  and 
without  this  support  she  becomes  vertiginous.  When  brought  to  maturity  by  proper 
culture,  she  begins  to  feel  her  own  strength,  and  leans  less  upon  the  reason  of  others  ; 
she  learns  to  suspect  testimony  in  some  cases,  and  to  disbelieve  it  in  others  ;  and  sets 
bounds  to  that  authority  to  which  she  was  at  first  entirely  subject.  But  still,  to  the 
end  of  life,  she  finds  a  necessity  of  borrowing  light  from  testimony,  where  she  has  none 
within  herself,  and  of  leaning  in  some  degree  upon  the  reason  of  others,  where  she  is 
conscious  of  her  own  imbecility.  And  as,  in  many  instances.  Reason,  even  in  her  ma- 
turity, borrows  aid  from  testimony,  so  in  others  she  mutually  gives  aid  to  it  and 
strengthens  its  authority.  For,  as  we  fiii'l  good  reason  to  reject  testimony  in  some 
cases,  so  in  others  we  find  good  reason  to  rtdy  upon  it  with  perfect  security,  in  our  most 
important  concerns.  The  character,  the  number,  and  the  disinterestedness  of  witnesses, 
the  impossibility  of  collusion,  and  the  incredibility  of  their  concurring  in  their  testimony 
without  collusion,  may  give  an  irresistible  strength  to  testimony,  compared  to  which 
its  native  and  intrinsic  authority  is  very  inconsiderable." 


CHAP.    III.]  GROUNDS    OF    BELIEF.  19 

upon  wliich  Mr.   Iluinc  so  much  relics,  he  would  be  bound  to 
reject  as  wholly  unworthy  of  l)elief. 

§  9.  Same  subject.  The  uniform  habits,  therefore,  as  well  as 
the  necessities  of  mankind,  lead  us  to  consider  the  disposition  to 
believe,  upon  the  evidence  of  extraneous  testimony,  as  a  funda- 
mental principle  of  our  moral  nature,  constituting-  the  general 
basis  upon  which  all  evidence  may  be  said  to  rest.  ^ 

§  10.  Same  subject.  Subordinate  to  this  paramount  and  orig- 
inal principle,  it  may,  in  the  second  place,  be  observed  that  evi- 
dence rests  upon  our  faith  in  human  testimony,  as  sanctioned 
by  experience ;  that  is,  upon  the  general  experienced  truth  of  the 
statements  of  men  of  integrity,  having  capacity  and  opportunity 
for  observation,  and  without  apparent  influence  from  passion  or 
interest  to  pervert  the  truth.  This  belief  is  strengthened  by  our 
previous  knowledge  of  the  narrator's  reputation  for  veracity ;  by 
the  absence  of  conflicting  testimony;  and  by  the  presence  of  that 
wliich  is  corroborating  and  cumulative,  (a) 

§  11.  Relations  of  facts  to  each  other.  A  third  basis  of  evi- 
dence is  the  known  and  experienced  connection  subsisting  be- 
tween collateral  facts  or  circumstances,  satisfactorily  proved, 
and  the  fact  in  controversy.  This  is  merely  the  legal  applica- 
tion, in  other  terms,  of  a  process,  familiar  in  natural  philosophy, 
showing  the  truth  of  an  hypothesis  by  its  coincidence  with  exist- 
ing phenomena.     The  connections  and  coincidences  to  which  we 

1  Abercroraljie  on  the  Intellectual  Powers,  part  2,  §  3,  \\\^.  ~i{)-15. 

{a)  It  is  upon  this  ground,  namely,  the  the  worst  motives,  and  to  give  a  coloring 
faith  in  the  credibility  of  human  testi-  of  guilt  to  facts  and  conversations  which 
mony,  that  the  jury  in  a  trial  at  law  are  are  perhaps  in  themselves  consistent  with 
largely  obliged  to  rely  ;  and  the  question  perfect  rectitude.  Taylor,  Evid.  §  49. 
of  the  degree  of  credibility  of  an  indi-  Again,  the  testimony  of  experts  is  no- 
vidual  witness,  or  of  all  the  testimony  in  toriously  liable  to  be  warped  by  a  favor- 
the  case,  is  wholly  for  them  to  decide,  able  disposition  towards  the  side  on  which 
Any  instructions  from  the  judge  by  which  they  are  employed  to  testifj'.  In  the  Ian- 
such  a  question  is  put  to  the  jury  as  a  guage  of  Campbell,  Ld.  Ch.,  in  the  Tracy 
matter  of  law  is  an  infringement  by  the  Peerage  Case,  10  CI.  &  Fin.  191,  "skilled 
court  of  the  peculiar  province  of  the  jury,  witnesses  come  with  such  a  bias  on  their 
General  observations,  however,  may  be  minds  to  support  the  cause  in  which  they 
made  by  the  court  on  the  credit  of  certain  are  embarked,  that  liardly  any  weight 
classes  of  witnesses,  which  may  tend  to  should  be  given  to  their  evidence."  Tay- 
show  their  relative  merits.  lor,  Evid.  §  50. 

For  example,  the  testimony  of  police-  So  the  court  may  instruct  the  jury  that 
men,  constables,  private  detectives,  and  they  are  authorized  to  consider  the  rela- 
others  employed  in  the  suppression  and  de-  tionship  of  witnesses  to  the  parties;  their 
tection  of  crime,  when  it  is  given  against  interest  in  the  event  of  the  suit  j  their 
the  prisoner,  may  be  o]>en  to  comment,  temper,  feeling,  or  bias,  if  any  has  been 
because  their  professional  zeal,  fed  by  an  shown;  their  demeanor  while  "testifying; 
habitual  intercourse  with  the  vicious  and  their  ajiparent  intelligence  and  means  of 
by  the  freiiuent  contemplation  of  human  information.  Taylor,  Evid.  §  44  ;  Sac- 
nature  in  its  most  revolting  form,  almost  kett.  Instructions  to  Juries,  p.  30;  Am- 
necessarily  leads  them  to  ascribe  actions  to  merman  v.  Teeter,  49  111.  400. 


20  LAW   OF   EVIDENCE.  [PART   I. 

refer  may  be  either  physical  or  moral ;  and  the  knowledge  of 
them  is  derived  from  the  known  laws  of  matter  and  motion,  from 
animal  instincts,  and  from  the  physical,  intellectual,  and  moral 
constitution  and  habits  of  men.  Their  force  depends  on  their 
sufficiency  to  exclude  every  other  hypothesis  but  the  one  under 
consideration.  Thus,  the  possession  of  goods  recently  stolen, 
accompanied  with  personal  proximity  in  point  of  time  and 
place,  and  inability  in  the  party  charged,  to  show  how  he  came 
by  them,  would  seem  naturally,  though  not  necessarily,  to  ex- 
clude every  other  hypothesis  but  that  of  his  guilt.  But  the  pos- 
session of  the  same  goods,  at  a  remoter  time  and  place,  would 
warrant  no  such  conclusion,  as  it  would  leave  room  for  the  hy- 
pothesis of  their  having  been  lawfully  purchased  in  the  course  of 
trade.  Similar  to  this  in  principle  is  the  rule  of  noscitur  a 
sociis,  according  to  which  the  meaning  of  certain  words,  in  a 
written  instrument,  is  ascertained  by  the  context. 

§  12,  Coincidences.  Some  writers  have  mentioned  yet  another 
ground  of  the  credibility  of  evidence,  namely,  the  exercise  of 
our  reason  upon  the  effect  of  coincidences  in  testimony,  which, 
if  collusion  be  excluded,  cannot  be  accounted  for  upon  any  other 
hypothesis  than  that  it  is  true."^  It  has  been  justly  remarked, 
that  progress  in  knowledge  is  not  confined,  in  its  results,  to  the 
mere  facts  which  we  acquire,  but  it  has  also  an  extensive  influ- 
ence in  enlarging  the  mind  for  the  further  reception  of  truth, 
and  setting  it  free  from  many  of  those  prejudices  which  influence 
men  whose  minds  are  limited  by  a  narrow  field  of  observation.  ^ 
It  is  also  true,  that,  in  the  actual  occurrences  of  human  life, 
nothing  is  inconsistent.  Every  event  which  actually  transpires 
has  its  appropriate  relation  and  place  in  the  vast  complication  of 
circumstances,  of  which  the  affairs  of  men  consist ;  it  owes  its 
origin  to  those  which  have  preceded  it;  it  is  intimately  con- 
nected with  all  others  which  occur  at  the  same  time  and  place, 
and  often  with  those  of  remote  regions ;  and,  in  its  turn,  it  gives 
birth  to  a  thousand  others  which  succeed. ^  In  ail  this,  there  is 
perfect  harmony ;  so  that  it  is  hardly  possible  to  invent  a  story 
which,  if  closely  compared  with  all  the  actual  contemporaneous 
occurrences,  may  not  be  shown  to  be  false.  From  these  causes, 
minds,  deeply  imbued  with  science,  or  enlarged  by  long  and  ma- 
tured experience,  and  close  observation  of  the  conduct  and 
affairs  of  men,  may,  with  a  rapidity  and  certainty  approaching 

1  1  Stark.  Evid.  471,  note. 

2  Abercrombie  on  the  Intellectual  Powers,  part  2,  §  3,  p.  71. 
8  1  Stark.  Evid.  496. 


CHAP.    III.]  GROUNDS   OF   BELIEF.  21 

to  intuition,  perceive  the  elements  of  truth  or  falsehood  in  the 
face  itself  of  the  narrative,  without  any  regard  to  the  narrator. 
Thus,  Archimedes  might  have  believed  an  account  of  the  inven- 
tion and  wonderful  powers  of  the  steam-engine,  which  his  un- 
learned countrymen  would  have  rejected  as  incredible;  and  an 
experienced  judge  may  instantly  discover  the  falsehood  of  a 
witness,  whose  story  an  inexperienced  jury  might  be  inclined  to 
believe.  But  though  the  mind,  in  these  cases,  seems  to  have 
acquired  a  new  power,  it  is  properly  to  be  referred  only  to  ex- 
perience and  observation. 

§  13.  Direct  and  circumstantial  evidence.  In  trials  of  fact,  it 
will  generally  be  found  that  the  factum  probandum  is  either  di- 
rectly attested  by  those  who  speak  from  their  own  actual  and  per- 
sonal knowledge  of  its  existence,  or  it  is  to  be  inferred  from  other 
facts,  satisfactorily  proved.  In  the  former  case,  the  truth  rests 
upon  the  second  ground  before  mentioned,  namely,  our  faith  in 
human  veracity,  sanctioned  by  experience.  In  the  latter  case, 
it  rests  on  the  same  ground,  with  the  addition  of  the  experienced 
connection  between  th.e  collateral  facts  thus  proved  and  the  fact 
which  is  in  controversy ;  constituting  the  third  basis  of  evidence 
before  stated.  The  facts  proved  are,  in  both  cases,  directly  at- 
tested. In  the  former  case,  the  proof  applies  immediately  to  the 
factum  prohandum,  without  any  intervening  process,  and  it  is 
therefore  called  direct  or  positive  testimony.  In  the  latter  case, 
as  the  proof  applies  immediately  to  collateral  facts,  supposed  to 
have  a  connection,  near  or  remote,  with  the  fact  in  controversy, 
it  is  termed  circumstantial ;  and  sometimes,  but  not  with  entire 
accuracy,  presumptive.  Thus,  if  a  witness  testifies  that  he  saw 
A  inflict  a  niortal  wound  on  B,  of  which  he  instantly  died ;  this  is 
a  case  of  direct  evidence ;  and,  giving  to  the  witness  the  credit 
to  which  men  are  generally  entitled,  the  crime  is  satisfactorily 
proved.  If  a  witness  testifies  that  a  deceased  person  was  shot 
with  a  pistol  and  the  wadding  is  found  to  be  part  of  a  letter 
addressed  to  the  prisoner,  the  residue  of  which  is  discovered  in 
his  pocket:  here  the  facts  themselves  are  directly  attested;  but 
the  evidence  they  afford  is  termed  circumstantial ;  and  from  these 
facts,  if  unexplained  by  the  prisoner,  the  jury  may,  or  may  not, 
deduce,  or  infer,  or  presume  his  guilt,  according  as  they  are  sat- 
isfied, or  not,  of  the  natural  connection  between  similar  facts, 
and  the  guilt  of  the  person  thus  connected  with  them.  In  both 
cases,  the  veracity  of  the  witness  is  presumed,  in  the  absence  of 
proof  to  the  contrary;  but  in  the  latter  case  there  is  an  addi- 
tional presumption  or  inference,  founded  on  the  known  usual 


22 


LAW   OP   EVIDENCE. 


[part  I. 


connection  between  the  facts  proved,  and  the  guilt  of  the  party 
implicated.  This  operation  of  the  mind,  which  is  more  complex 
and  difficult  in  the  latter  case,  has  caused  the  evidence  afforded 
by  circumstances  to  be  termed  presumptive  evidence;  though,  in 
truth,  the  operation  is  similar  in  both  cases,  (a) 


(a)  For  in  every  case  the  jury  are  re- 
quired to  make  one  inference,  at  least, 
viz.,  that  the  proposition  wliich  the  wit- 
ness has  stated  is  true.  Thus,  if  the 
([uestion  is,  whether  A  stole  a  horse  and 
a  witness  deposes  that  A  was  found  in 
possession  of  it  the  night  after  it  was 
missed,  the  evidence  in  the  case  is  the 
statement  of  the  witness,  and  the  jury  in- 
fers from  that  statement  that  the  horse 
was  so  found.  Or  if  the  question  is, 
whether  A  killed  B,  and  a  witness  deposes 
that  he  saw  A  give  B  a  violent  blow  with 
a  club,  and  B  fall  dead  at  A's  feet,  the 
jury  infers  from  the  evidence,  viz.,  the 
statement  of  the  witness,  that  the  allega- 
tions in  the  indictment  which  correspond 
to  that  statement  are  true.  Stephen, 
General  View  of  Criminal  Law,  c.  vii. 
§  iii;  Com.  v.  Harman,  4  Pa.  St.  269; 
AppU-ton,  C.  J.,  in  Read's  Case.  Sup.  Ct. 
Me.  1874,  i  Cent.  L.  J.  219.  Circum- 
stantial evidence  depends  for  its  admissi- 
bility upon  two  elements  :  — - 

1.  There  must  be  some  fact  or  facts 
proved  by  direct  evidence,  just  as  any  other 
facts  in  the  case  are  proved,  upon  which 
the  inference  is  to  be  based.  No  inference, 
therefoi-e,  which  is  itself  based  upon  an- 
other inference  will  be  admitted  as  circum- 
stantial evidence.  Thus,  when  an  action 
for  deceit  was  brought,  and  the  plaintitf 
alleged  that  the  defendant,  an  oil-mining 
company,  made  certain  false  representa- 
tions as  to  the  value  of  its  stock,  and  the 
plaintiff,  relying  on  these  representations, 
bought  the  stock,  the  evidence  showed  tliat 
the  company  had  made  certain  false  state- 
ments in  its  certificate  of  organization. 
The  plaintiff's  counsel  contended  that  the 
jury  might  presume  that  the  plaintiff  had 
seen  this  certificate,  and  also  presume 
that  he  relied  on  its  statements  when  he 
bought  the  stock.  The  Court,  however, 
held  that  the  inference  could  not  be  sup- 
ported, saying,  "  Not  a  word  of  testimony 
appears  to  have  been  given  by  the  plain- 
tiff to  show  that  he  was  in<luced  to  pur- 
chase any  stock  in  the  Olive  Branch  0\\ 
Company  by  direct  representation  true  or 
untrue,  by  any  person.  This  essential  is 
attempted  to  be  supplied  with  presump- 
tions, one  to  stand  as  a  postulate  and  the 
other  as  the  inference.  This  is  not  admis- 
sible."    McAleer  v.  McMurray,  58  Pa.  St. 


126.  So,  in  Wheelton  v.  Hardisty,  8  El. 
&  Bl.  2-32,  it  was  held  that  the  fact  that 
an  insurance  company  published  a  pro- 
spectus containing  representations  that 
the  policies  would  be  voidable  only  for 
fraud  was  not  evidence  that  the  plaintiff 
had  seen  the  prospectus  and  had  relied 
on  it  in  making  his  insurance.  So,  in 
Douglass  V.  Mitchell's  Executor,  35  Pa, 
St.  440,  it  was  held,  that  when  fraud  is 
to  be  inferred  from  certain  facts,  those 
facts  must  be  established  by  direct  evi- 
dence, and  must  not  be  themselves  infer- 
ences from  other  facts.  To  the  same 
effect  are  Manning  v.  John  Hancock  In- 
surance Company,  100  U.  S.  693  ;  United 
States  V.  Ross,  92  U.  S.  281;  Tanner  v. 
Hughes,  53  Pa.  St.  289;  Philadelphia, 
&c.  R.  R.  Co.  V.  Henrice,  92  Pa.  St.  431; 
Starkie,  Evid.  p.  80. 

The  degree  of  proof,  moreover,  required 
for  the  circumstances  on  which  the  infer- 
ence is  based,  has  been  said  to  be  the  same 
as  would  be  required  for  direct  evidence, 
e.  g.  in  a  criminal  case  such  circumstances 
must  be  proved  beyond  a  reasonable  doubt. 
People  V.  Ah  Chung,  54  Cal.  398.  See 
Com.  V.  Doherty,  137  Mass.  245. 

2.  The  inference  which  is  based  upon 
the  facts  so  ])roved  must  be  a  clear  and 
strong  logical  inference,  au  open  and  visible 
connection  between  the  facts  proved  and 
the  proi)osition  to  be  proved.  The  Court 
decides  whether  the  inference  is  of  such 
a  character,  and  upon  its  decision  the  ad- 
missibility of  the  facts  offered  depends. 
No  rule  can  be  laid  down  on  this  subject, 
and  the  Courts  will  decide  each  case  on  its 
own  circumstances,  guided  by  the  prin- 
ciple that  the  law  does  not  permit  a  deci- 
sion to  be  made  on  remote  inferences,  or 
on  such  evidence  that  the  verdict  of  the 
jury  would  be  a  "  mere  guess."  Manning 
V.  Insurance  Company,  100  U.  S.  693  ; 
Douglass  V.  Mitchell,"  35  Pa.  St.  444  ; 
Simnis  v.  State,  10  Tex.  App.  131;  Dur- 
rett  V.  State,  62  Ala.  434.  Cf.  Crusell's 
Case,  14  Wall.  (U.  S.)  1;  Best,  Evid. 
§95. 

As  regards  the  weight  of  such  evidence 
when  admitted,  this  question  is  left,  with 
one  restriction,  entirely  to  the  jury,  just  as 
the  (piestion  of  the  weiglit  of  direct  testi- 
mony is  left  to  them.  The  jury  are  not 
bound  to  believe  any  witness,  nor  are  they 


CHAP,    III.] 


GROUNDS   OP   BELIEF. 


23 


§  13  «.  Degrees  of  circumstantial  evidence.  Circumstantial 
evidence  is  of  two  kinds,  namely,  certain,  or  that  from  which 
the  conchision  in  question  tiecessarili/  follows ;  and  uncertain,  or 
that  from  which  the  conclusion  docs  not  necessarily  follow,  ])ufc 
is  probable  only,  and  is  obtained  by  process  of  reasoning.  Thus, 
if  the  body  of  a  person  of  mature  age  is  found  dead,  with  a  recent 
mortal  wound,  and  the  mark  of  a  bloody  left  hand  is  upon  the 
left  arm,  it  may  well  be  concluded  that  the  person  once  lived, 
and  that  another  person  was  present  at  or  since  the  time  when 
the  wound  was  inflicted.      So  far  the  conclusion  is  certain;  and 


bound  to  be  convinced  by  any  given 
amount  of  circumstantial  evidence.  No 
doubt  tliere  are  reasons  why  certain  kinds 
or  amounts  of  circumstantial  evidence  vary 
greatly  in  probative  force,  but  there  is  no 
rule  of  law  requiring  a  jury  to  convict  on 
the  stronger  evidence,  or  to  acciuit  on  the 
weaker.  The  whole  subject  is  left  entirely 
in  their  hands.  Stephen,  General  View 
of  Criminal  Law,  pj).  '249,  251  ;  Ilea  v. 
State,  8  Lea  (Tenn.),  356;  State  v.  Nor- 
wood, 74  N.  C.  247.  Neither  is  there 
any  rule  of  law  in  regard  to  the  weight  to 
be  given  by  the  jury  to  circumstantial 
evidence  when  it  is  opposed  to  direct  evi- 
dence. There  is  no  sort  of  difference  in 
the  kind  of  probative  force  of  the  different 
kinds  of  evidence,  whether  the  comparison 
is  made  between  weak  cases  or  strong  ones. 
Stephen,  General  View  of  Criminal  Law, 
pp.  273,  274.  The  jury  are  at  liberty  to 
believe  whatever  evidence  seems  to  them 
credible  (People  v.  Morrow,  9  Pac.  C.  L.  J. 
99);  and  the  circumstantial  evidence  may 
outweigh  the  direct  evidence.  Bowie  v. 
Maddox,  29  Ga.  285.  Cf.  Ridlev's  Adni'rs 
V.  Eidley,  1  Coldw.  (Tenn.)  323.  Even 
where  there  is  but  one  witness  on  each 
side  and  there  is  a  conflict  between  their 
evidence,  one  witness  testifying  to  a  fact, 
and  the  other  witness,  being  of  equal 
means  of  knowledge  and  credibility,  testi- 
fying in  direct  contradiction  thereof,  it  is 
not  the  correct  rule  for  the  court  to  in- 
struct the  jury  that  there  is  no  prepon- 
derance of  evidence,  and  that  the  party 
\\\K>\\  whom  the  burden  of  proof  lies  must 
fail  for  the  lack  of  such  preponderance,  for 
the  jury  are  at  liberty  to  take  into  account 
and  weigh  all  the  facts  and  circumstances 
introduced  in  evidence  in  connection  with 
the  testimony  of  the  two  witnesses,  and 
deternune  whether  or  not  the  party  hav- 
ing the  burden  of  jiroof  has  obtained  a 
preponderance  of  credibility  upon  all  the 
testimony  in  the  case.  The  jury  are  the 
sole  judges  of  the  weight  to  be  given  to  all 


the  evidence  introduced  after  considera- 
tion, and  the  instruction  of  the  court 
should  not  infringe  upon  this  rule,  but 
leave  the  jury  free  and  untrammelled  to 
determine  for  themselves  the  weight  of  all 
the  evidence  and  upon  which  side  of  the 
case  the  evidence  may  preponderate.  De- 
land  V.  Dixon  Nat.  Bank,  HI  111.  327. 
The  single  restriction  put  upon  the  jury 
by  the  law  in  regard  to  their  verdict,  is 
the  one  wliich  governs  also  cases  of  direct 
testimony,  and  is  that,  (1)  in  civil  cases 
their  verdict  should  not  be  for  the  part}' 
on  whom  lies  the  burden  of  ]iroof  unless 
the  jireponderance  of  the  evidence  is  in 
his  favor;  aud  (2)  in  criminal  cases  they 
must  not  convict  unless  they  are  con- 
vinced of  the  guilt  of  the  accused  beyond 
a  reasonable  doubt.  See  Infra,  §  13  a, 
note  a. 

For  observations  on  the  weight  of  cir- 
cumstantial evidence,  see  Best,  Evid. 
§  289,  Starkie,  Evid.  853;  Belhaven  & 
Stenton  Peerage,  L.  E.  1  App.  Cases,  278, 
per  Lord  Chancellor.  And  see  the  charge 
of  Appleton,  C.  J.,  in  Eead's  Case,  1 
Cent.  Law  Jouru.  219.  The  comparative 
value  of  circumstantial  evidence  in  gen- 
eral is  well  summed  up  in  the  following 
paragra{)h:  — 

"  Perhaps  strong  circumstantial  e\-i- 
dence,  in  cases  of  crimes  committed  for 
the  most  part  in  secret,  is  the  most  satis- 
factory of  any  from  which  to  draw  the 
conclusion  of  guilt;  for  men  may  be  se- 
duced to  perjury  by  many  base  motives, 
to  which  the  secret  nature  of  the  oH'ence 
may  sometimes  afford  a  tem])tation;  but 
it  can  scarcely  happen  that  many  circum- 
stances, especially  if  they  be  such  over 
which  the  accuser  could  have  no  control, 
forming  altogether  the  links  of  a  transac- 
tion, should  all  unfortunately  concur  to  fix 
the  presumption  of  guilt  on  an  individual; 
and  yet  such  a  conclusion  be  erroneous." 
1  East,  P.  C.  c.  5,  §  9. 


24  LAW   OP   EVIDENCE.  [PART   L 

the  jury  would  be  bound  by  their  oaths  to  find  accordingly.  But 
whether  the  death  was  caused  by  suicide  or  by  murder,  and 
whether  the  mark  of  the  bloody  hand  was  that  of  the  assassin, 
or  of  a  friend  who  attempted,  though  too  late,  to  afford  relief,  or 
to  prevent  the  crime,  is  a  conclusion  which  does  not  necessarily 
follow  from  the  facts  proved,  but  is  obtained,  from  these  and 
other  circumstances,  by  probable  deduction.  The  conclusion,  in 
the  latter  case,  may  be  more  or  less  satisfactory  or  stringent, 
according  to  the  circumstances.  In  civil  cases,  where  the  mis- 
chief of  an  erroneous  conclusion  is  not  deemed  remediless,  it 
is  not  necessary  that  the  minds  of  the  jurors  be  freed  from  all 
doubt ;  it  is  their  duty  to  decide  in  favor  of  the  party  on  whose 
side  the  weight  of  evidence  preponderates,  and  according  to  the 
reasonable  probability  of  truth.  But  in  criminal  cases,  because 
of  the  more  serious  and  irreparable  nature  of  the  consequences 
of  a  wrong  decision,  the  jurors  are  required  to  be  satisfied, 
beyond  any  reasonaljle  doubt,  of  the  guilt  of  the  accused,  or  it 
is  their  duty  to  acquit  him;  the  charge  not  being  proved  by  that 
higher  degree  of  evidence  which  the  law  demands,  (a)  In  civil 
cases,  it  is  sufficient  if  the  evidence,  on  the  whole,  agrees  with 
and  supports  the  hypothesis  which  it  is  adduced  to  prove ;  but 
in  criminal  cases  it  must  exclude  every  other  hypothesis  but  that 

(a)  The  phrase  "reasonable  doubt,"  as  269,  274;  Reg.  v.  White,  4  F.  &  F.  383, 
it  is  used  in  criminal  cases,  and  the  gen-  and  note.  Proof  to  a  "moral  certainty" 
eral  charge  of  the  court  on  this  point,  has  is  an  equivalent  phrase  with  proof  "  be- 
been  the  subject  of  much  discussion.  The  yond  a  reasonable  (ioubt."  Com.  y.  Cost- 
general  test  of  the  sufficiency  of  circum-  ley,  supra.  In  this  case.  Gray,  C.  J., 
stantial  evidence  is  this:  "In  order  to  says:  "  Proof  '  beyond  a  reasonable  doubt ' 
justify  the  inference  of  legal  guilt  from  is  not  beyond  all  jiossible  or  imaginary 
circumstantial  evidence,  the  existence  of  doubt,  but  such  proof  as  precludes  every 
the  inculpatory  facts  must  be  absolutely  reasonable  hypothesis,  except  that  which 
incompatible  with  the  innocence  of  the  it  tends  to  support.  It  is  proof  to  a 
accused,  and  incapable  of  explanation  'moral  certainty,'  as  distinguished  from 
upon  any  other  reasonable  hypothesis  an  alisolute  certainty.  As  applied  to  a 
than  that  of  his  guilt."  Wills,  Circum-  judicial  trial  for  crime,  the  two  phrases 
stantial  Evidence,  p.  149.  But  the  law  are  synonymous  and  eipiivalent,  each  has 
does  not  attempt  to  tell  the  juror  what  been  used  by  eminent  judges  to  explain 
amount  or  kind  of  evidence  ought  to  pro-  the  other,  and  each  siguities  such  proof 
duce  such  a  belief  in  his  mind,  nor  what  as  satisfies  the  judgment  and  consciences 
kind  of  doubt  is  reasonable.  To  do  so,  to  of  the  jury,  as  reasonable  men,  and  apply- 
try  to  give  a  specific  meaning  to  the  word  ing  their  reason  to  the  evidence  before 
"reasonable"  is,  in  the  vivid  words  of  them,  that  the  crime  charged  has  been 
Sir  Fitz-James  Stephen,  "trying  to  count  committed  by  the  defendant,  and  so  satis- 
what  is  not  number,  and  to  measure  what  fies  them  as  to  leave  no  other  reasonable 
is  not  space."  General  View  of  Criminal  conclusion  possible."  See  post,  vol.  iii. 
Law,  p.  262  ;  Miles  v.  United  States,  103  §  29  ;  Territory  v.  Owings,  3  Montana, 
U.  S.  304,  p.  312.  The  ordinary  wording  137  ;  Mickle  c.  State,  27  Ala.  20  ;  Faulk 
of  the  instruction  is,  that  the  jury  shoidd  v.  State,  52  Ala.  415  ;  Beavers  v.  State,  58 
be  satisfied  of  the  defendant's  guilt  beyond  Ind.  530  ;  State  v.  Maxwell,  42  Iowa,  208; 
a  reasonable  doubt.  Miles  v.  United  Algheri  f.  State,  25  Miss.  584  ;  Browning 
States,  103  U.  S.  304;  Com.  v.  Costley,  v.  State,  33  Id.  47  ;  James  v.  State,  45  Id. 
118  Mass.  1;  Com.  v.   Harman,  4  Pa.  St.  572  ;  Black  v.  State,  1  Tex.  App.  368. 


CHAP.    III.] 


GROUNDS   OF   BELIEF. 


25 


of  the  guilt  of  the  party,  (b)  In  both  cases,  a  verdict  may 
well  be  founded  on  circumstances  alone ;  and  these  often  lead 
to  a  conclusion  far  more  satisfactory  than  direct  evidence  can 
produce.  ^ 

1  Soe  Bodine's  Case,  in  the  New  York  Legal  Observer,  vol.  iv.  pp.  89,  95,  where 
the  nature  and  vahie  of  this  kind  of  evidence  ai'e  fully  discussed.  See  infra,  §§  44-48. 
And  see  Commonwealth  v.  Webster,  5  Gush.  2iJG,  iilU-319. 


(b)  There  seems  to  be  at  the  present 
time  no  exception  in  the  United  States 
to  the  two  rules,  (1)  that  in  criminal  cases 
the  jury  must  be  satisfied  beyond  a  rea- 
sonable doubt,  by  the  proof,  and  (2)  that 
in  civil  cases  they  may  decide  upon  the 
mere  preponderance  of  evidence.  The  rule 
that  when  a  criminal  act  is  alleged  in  a 
civil  suit,  the  proof  of  the  criminal  act 
must  satisfy  the  jury  beyond  a  reasonable 
doubt,  has  now  been  abandoned  in  most 
States,  and  the  same  rule  applied  to  these 
as  to  other  civil  cases.  Ellis  v.  Buzzell, 
60  Me.  209  ;  Weston  v.  Gravlin,  49  Vt. 
507  ;  Munson  v.  Atwood,  30  Conn.  102  ; 
Jones  V.  Greaves,  26  Ohio  St.  2  ;  Robin- 
son V.  Randall,  82  111.  521  ;  Bissell  v. 
West,  35  Ind.  54  ;  Schmidt  v.  New  York, 
&e.  Ins.  Co.,  1  Gray  (Mass.),  529  ;  Gor- 
don V.  Parmelee,  15  Id.  413  ;  Burr  v.  Will- 
son,  22  Minn.  206. 

But  the  rule  requiring  proof  beyond  a 
reasonable  doubt  is  still  held  in  some 
cases.  Barton  v.  Thompson,  46  Iowa,  30; 
Mott  V.  Dawson,  Id.  533;  PolstoniJ.  See, 
54  Mo.  291.  The  cases  in  which  such  ex- 
ceptions have  been  most  strongly  urged  are 
pleas  of  wilful  burning  in  insurance  cases 
{ste  2Mst,  vol.  ii,  §  408),  and  in  libel  cases 
for  accusations  of  crime,  where  the  pleas 
assert  the  truth  of  such  accusation.  See 
post,  vol.  ii.  §  426.  In  England  the  rule 
is,  that  the  jury  must  be  satistied  of  the 
commission  of  a  crime  beyond  a  reasona- 
ble doubt,  if  the  fact  of  the  commission 
is  directly  in  issue,  whether  the  question 
arises  in  a  civil  or  a  criminal  case,  and  the 
burden  of  proving  that  any  person  has 
committed  a  crime  or  wrongful  act  is  al- 
ways on  the  person  who  asserts  such  com- 
mission. Stephen,  Dig.  Evid.  art.  94. 
The  reasons  why  courts  do  not  require 
proof  of  the  crime  beyond  reasonable 
doubt  in  civil  cases,  and  the  bearing  of 
tlie  presumption  of  innocence  in  such 
cases  are  well  stated  in  the  case  of  Somer- 
set Mutual  Fire  Ins.  Co.  v.  Usaw,  112  Pa. 
St.  89,  in  which  the  court  says  :  "  In  a  civil 
issue,  where  the  life  or  liberty  of  the  per- 
son whose  act  is  sought  to  be  proved  is 
not  involved,  proof  of  the  act  is  only  per- 
tinent because  it  is  to  sustain  or  defeat 
a  claim  for  damages  or  respecting  the  right 


to  things.  When  the  act  imputes  a  crime, 
the  inculpatory  evidence  must  be  surlicient 
to  overcome  the  exculpatory  evidence  and 
the  presumption  of  innocence,  otherwise 
there  is  no  preponderance  to  establish  the 
fact.  That  })resumption  is  due  every  man 
in  every  court,  and  when  it  is  alleged  that 
he  has  done  a  dishonest  or  criminal  act, 
the  jiresumption  weighs  in  his  favor.  la 
the  civil  issue  he  is  not  on  trial.  The 
judgment  is  not  evidence  that  he  is  guilty 
of  crime.  The  act  affirmed  is  an  incident, 
a  fact,  to  be  proved  like  other  pertinent 
facts.  For  instance,  in  this  case,  had  the 
insured  changed  the  tenancy  or  occupancy 
of  the  premises,  without  notice  to  the  as- 
surer, proof  of  the  act  would  have  been 
competent,  and  the  fact  established  by 
preiionderance  of  evidence.  If  a  man, 
by  deceit,  fraudulently  obtains  insurance 
on  a  buildii]g,  by  like  evidence  his  act 
may  be  established  to  avoid  the  |)olicy  ; 
if  he  burns  the  insured  building,  the  same 
rule  of  evidence  ought  to  apply  when  it 
is  proposed  to  prove  the  act  lor  like  pur- 
poses." The  position  of  the  court  in  this 
case,  that  the  presumption  of  innocence 
is  to  be  considered  by  the  jury  in  deter- 
mining the  question  of  preponderance  of 
evidence,  is  unquestionably  correct.  The 
same  question  was  raised  and  discussed 
in  Mead  v.  Husted,  52  Conn.  56,  which 
case,  while  affirming  the  decision  of  Mun- 
son V.  Atwood,  30  Conn.  102,  that  only  a 
preponderance  of  evidence  was  necessary 
in  civil  cases  even  though  the  result  im- 
putes the  charge  of  a  felony,  held  that  in 
that  State  it  ought  to  be  considered  still 
an  open  question  whether  as  one  factor  for 
determining  the  preponderance  of  the  evi- 
dence the  jury  might  consider  the  pre- 
sumption of  innocence,  the  Court  saying 
that  the  case  before  them  did  not  require 
a  decision  upon  that  point,  and  refusing 
to  decide  it.  See  also  People  v.  Briggs,  114 
N.  Y.  64,  and  vol.  iii.  §  29.  It  is  also  to 
be  observed  that  in  determining  whether 
or  not  a  preponderance  of  evidence  is  suffi- 
cient, a  suit  for  a  penalty,  if  the  suit  is  in 
the  nature  of  an  action  of  tort,  is  regarded 
as  a  civil  case,  and  the  jury  need  not  be 
satisfied  of  the  guilt  of  the  defendant  be- 
yond a  reasonable  doubt,  but  only  to  tha 


26 


LAW   OF    EVIDENCE. 


[part  I. 


Siiino  degree  as  in  civil  cases  ;  whereas,  if  applies.  O'Connell  v.  O'Leary,  145  Mass, 
the  suit  is  in  the  nature  of  a  criminal  pro-  311 ;  lloberge  v.  Burnhani,  124  Mass. 
secution,  the  rule  as  to  reasonable  doubt     312. 


REAL    EVIDENCE. 


Another  species  of  evidence  is  what  has 
been  called  "  real  evidence."  This  is  evi- 
dence of  the  thing  or  object  which  is  pro- 
duced in  court.  When,  for  instance,  the 
condition  or  appearance  of  any  thing  or  ob- 
ject is  material  to  the  issue,  and  the  thing 
or  object  itself  is  produced  in  court  for  the 
inspection  of  the  tribunal,  with  proper  tes- 
timony as  to  its  identity,  and,  if  necessary, 
to  show  that  it  lias  existed  in  this  State 
since  the  time  at  which  the  issue  in  ([ues- 
tion  arose,  this  object  or  thing  becomes  it- 
self "  real  evidence"  of  its  condition  or 
appearance  at  the  time  in  question.  This 
species  of  evidence  has  been  denominated 
"real  evidence,"  and  was  fully  considered 
in  a  recent  case  in  New  Jersey  (Gaunt  v. 
State,  50  N.  J.  L.  491),  where  the  resem- 
blance of  a  child  to  the  defendant  was 
material  to  the  issue.  In  that  case  the 
child  was  in  court  during  the  trial,  the  at- 
tention of  the  jury  was  directed  to  it  as  the 
offspring  of  the  defendant,  and  the  defen- 
dant was  a  witness  in  the  cause  ;  under 
these  circumstances  it  was  held  not  error 
for  the  court  to  refuse  to  charge  the  jury 
that  they  must  not  consider  the  question 
of  resemblance  at  all,  and  that  if  they  did 
consider  it,  it  must  be  from  the  testimony 
from  the  mouths  of  witnesses,  and  not  from 
their  own  view.  The  court  discusses  this 
kind  of  evidence  as  follows  :  "  Two 
questions  are  presented,  first,  is  the  re- 
semblance between  the  child  and  the  al- 
leged father  a  relevant  matter  ;  and  second, 
if  relevant,  should  it  be  determined  by 
inspection,  or  by  the  testimony  of  wit- 
nesses. 

"  In  considering  the  first  of  these  ques- 
tions, viz.,  as  to  the  relevancy  of  resem- 
blance as  an  element  of  proof,  it  is  clear 
that  testimony  of  this  character  must  be 
treated  as  a  class.  Tlius  viewed,  whatever 
opinion  may  be  held  as  to  the  illusory  na- 
ture of  such  evidence  in  cases  like  the 
present,  there  is  no  question  that,  as  a 
class,  resemblances  are  admitted  wherever 
relevant.  In  cases  involving  handwriting, 
for  instance,  it  has  always  been  deemed 
jiertinent  to  have  a  comparison  of  hands. 
Likewise,  in  sales  by  samples,  in  patent 
cases,  in  trade-mark  and  infringement 
suits,  resemblance  is  of  the  essence  of  the 
proof.  Nor  can  it  be  said  that  the  ten- 
dency of  recent  applications  of  this  rule 
has  been  toward  restriction  —  rather  the 
reverse. 


"In  the  courts  of  a  sister  State,  —  New 
York,  —  operas  have  been  performed  in 
court,  and  comic  songs  sung  ;  plagiarized 
papers  have  been  read,  and  the  so-called 
materialization  of  sj)irits  exhibited,  —  all 
within  the  scope  of  the  doctrine  of  the  rel- 
evancy of  resemblance,  while  in  a  case  now 
pending  in  the  courts  of  Pennsylvania,  a 
board  of  experts  have  been  ordered  to  in- 
spect a  certain  contrivance  called  the  Keeley 
Motor,  with  a  view  to  the  determination 
of  its  resemblance  or  mechanical  equiva- 
lency to  a  motor  described  in  plaintiff's  part- 
nership bill.  Examples  of  the  application 
of  the  same  rule  to  family  likenesses  are  not 
■wanting.  In  the  notorious  Douglass  case 
(House  of  Lords,  1769),  Lord  Mansfield 
allowed  tlie  resemblance  of  the  appellant 
and  his  brother  to  Sir  John  Stewart  and 
Lady  Jane  Douglass  to  be  shown,  as  well 
as  their  dissimilarity  to  those  persons, 
whose  children  they  were  supposed  to  be. 
While  as  late  as  1871,  Lord  Chief-Justice 
Cockburn,  in  the  Tichborne  case,  held  that 
the  resemblance  of  the  claimant  to  a  family 
daguerreotyi)e  of  Roger  Tichborne  was  rel- 
evant, and  intimated  that  com{)arison  of 
features  between  the  claimant  and  the  sis- 
ters of  Arthur  Orton  would  be  permitted. 

"  The  extension  of  this  rule  to  cases  of 
family  likeness  in  bastardy  and  other  suits 
of  alleged  parentage,  cannot  be  questioned 
seriously  on  principle,  the  illusory  nature 
of  such  resemblances  rather  imposing  a 
duty  on  the  court  in  conjunction  with  the 
admission  of  the  proof,  than  militating 
against  the  relevancy  of  the  in(juiry." 

In  Garvin  v.  State,  52  Miss.  207,  an 
indictment  rested  on  the  ground  that  the 
defendant  was  a  colored  man.  Of  this 
there  was  no  proof,  but  as  the  defendant 
had  been  before  the  jury,  the  court  held 
that  their  inspection  did  away  with  the 
necessity  of  proof,  saying,  "Juries  may 
use  their  eyes  as  well  as  their  ears."  In 
Jones  V.  Jones,  45  IMd.  148,  151,  the  court 
permitted  the  jury  to  judge  as  to  a  personal 
resemblance,  but  not  to  hear  testimony  on 
that  subject,  upon  the  ground  that  wlien 
the  parties  are  before  the  jury,  whatever 
resemblance  there  is  will  be  directly  appar- 
ent ;  but  to  permit  third  persons  to  give 
their  opinions  would  be  admitting  the  tes- 
timony of  experts  as  to  subjects  to  which 
expert  testimony  does  not  properly  apjdy. 

In  Iowa,  the  courts  have  held,  on  the 
question  of  resemblance  of  a  bastard  to  its 


CHAP.    III.] 


GROUNDS   OP   BELIEF. 


27 


alleged  father,  that  an  infant  two  years  old 
might  be  exhibited  to  the  jury.  State  v. 
Smith,  54  Iowa,  104  ;  while  a  babe  of  three 
mouths  eould  not  be  shown  ;  State  v.  ]Jan- 
fortli,  48  Iowa,  43.  This  disciimination 
rested  upon  a  notion  that  so  young  an  in- 
fant could  not  have  sulheiently  settled  re- 
semblance to  afford  any  reasonable  proof. 

In  Risk  V.  State,  19  hid.  152,  a  child 
of  three  months  was  shown  to  the  jury. 
The  court  held  that  as  there  had  been  no 
Mlijeetion  to  the  evidence,  the  jury  had  a 
right  to  consiiler  it. 

In  North  Carolina,  in  the  case  of  State 
V.  Woodruif,  67  N.  C.  89,  the  charge  of  the 
court  that  the  resemblance  of  a  bastard  to 
the  defendant  was  relevant,  was  held  good. 
In  the  case  of  Warlick  v.  White,  76  N.  C. 
175,  the  (piestion  was  \vhether  a  girl  was 
of  mixed  blood.  Plaiutitf  had  subj)cenaed 
the  girl  for  the  sole  })urpose  of  having  her 
seen  by  the  jury.  Upon  objection  being 
made,  the  court  overruled  the  otfer.  Held, 
on  api)eal,  that  the  court  erred,  —  that  on 
a  question  of  mixed  blood,  the  offer  to  ex- 
hibit the  girl  should  have  been  permitted. 

In  Gilmanton  v.  Ham,  38  N.  H.  108, 
counsel  commented  upon  the  resemblance 
of  the  child  to  the  defendant,  and,  upon 
appeal,  the  court  affirmed  his  right  to  do 
so  upon  the  ground  that  the  matter  was 
relevant  and  the  parties  before  the  jury. 

In  Finnegan  v.  Dugan,  14  Allen,  197, 
the  child  was  in  court,  and  the  judge, 
against  the  defendant's  objection,  charged 
the  jury  that  they  might  consider  whether 
there  was  any  resemblance  between  the 
child  and  the  defendant.  In  affirming  the 
judgment,  the  Supreme  Court  says  :  "It 
is  a  well-known  physiological  fact  that 
peculiarities  of  feature  and  personal  traits 
are  often  transmitted  from  parent  to  child. 
Taken  by  itself,  jiroof  of  such  resemblance 
would  be  insufficient  to  establish  paternity  ; 
but  it  would  be  clearly  a  circumstance  to 
be  considered  in  connection  with  other 
facts  tending  to  prove  the  issue  on  which 
the  jury  are  to  pass."  The  same  court  in 
Eddy  V.  Gray,  4  Allen,  435,  sustain  a  rul- 
ing rejecting  testimony  u])on  the  same  sub- 
ject, upon  tlie  ground  that  it  did  not  come 
within  the  rule  of  expert  testimony. 

In  a  recent  case  in  Maine,  evidence 
of  a  similar  nature  was  introduced,  and 
although  it  was  rejected  in  that  case  on  the 
gi'ound  that  the  child  was  too  young  to 
have  any  decided  resemblance,  yet  the 
court  carefully  limits  the  decision  to  that 
point,  saying  :  "  The  only  object  for  which 
it  is  claimed  that  the  child  was  introduced 
in  evidence  and  viewed  by  the  jury,  was 
to  enable  them  to  judge  from  a  comparison 
of  its  appearance,  complexion,  and  features 
with  those  of  the  defendant,  whether  any 


inference  could  legitimately  be  drawn  there- 
from as  to  its  paternity. 

"In  a  case  like  this,  where  the  child 
was  a  mere  infant,  such  evidence  is  too 
vague,  uncertain,  and  fanciful,  and  if  al- 
lowed, would  establish  not  only  an  un- 
wise, but  dangerous  and  uncertain  rule  of 
evidence."  Clark  v.  Bradstreet,  80  Me. 
456. 

The  court  in  this  case  admits  that  in 
other  States  such  evidence  is  received,  and 
that  on  an  issue  of  bastardy,  the  courts  have 
allowed  the  jury  to  judge  of  likeness  by 
inspection  (Gilmanton  v.  Ham,  38  N.  H. 
108  ;  Finnegan  v.  Dugan,  14  Allen,  197; 
State  V.  Arnold,  13  Ired.  (N.  C.)  184; 
State  V.  Woodruff",  67  N.  C.  89),  and  com- 
mends these  decisions  so  far  as  the  ques- 
tion is  one  of  race  or  color,  on  the  ground 
that  there  are  marked  distinctions,  physi- 
cal and  external,  between  the  different 
races  of  mankind,  which  may  enable  men 
of  ordinary  intelligence  and  observation  to 
judge  whether  they  are  of  one  race  or 
another. 

The  objections  to  this  species  of  evi- 
dence have  been  two-fold  ;  first,  ou  ac- 
count of  its  slight  probative  force,  and 
second,  on  the  ground  that  in  criminal 
cases  it  may  compel  a  defendant  to  furnish 
evidence  against  himself.  The  first  objec- 
tion seems  to  be  directed  rather  to  the 
weight  of  testimony  than  to  its  relevancy, 
and  the  practice  is  well  established  in  cases 
where  the  questions  of  identity  or  similar- 
ity are  raised  to  allow  the  jury  to  judge  of 
the  similarity  or  identity  by  in.spection  of 
the  persons  or  things  in  court.  Gaunt  v. 
State,  50  N.  J.  L.  491  ;  Clark  v.  Brad- 
street,  80  Me.  456  ;  Louisville,  New  Alb., 
&c.  R.  R.  Co.  V.  Wood,  113  Ind.  548.  The 
second  objection  seems  also  to  be  overcome 
by  the  fact  that  the  defendant  who,  in  a 
criminal  case,  takes  the  witness  stand,  is 
held  to  waive  his  constitutional  right  not 
to  be  required  to  furnish  evidence  against 
liimself,  and  can  be  cross-examined  upon 
all  the  points  in  the  case  ;  and  the  general 
tendency  of  the  decisions  is  to  hold  such 
real  evidence  as  the  defendant  supplies  by 
his  appearance  when  on  the  witness  stand 
as  evidence  which  may  be  used  against 
him.  Thus,  in  State  v.  Ah  Chuey,  14  Nev. 
70,  the  defendant  was  required  to  bare  his 
arm  to  show  a  tattoo  mark  as  affecting  the 
question  of  his  identity  ;  and  in  numerous 
cases  in  the  South  negroes  have  been  pro- 
duced in  court  on  the  question  of  their 
color.  Jacob's  Case,  5  Jones  (N.  C),  259  ; 
State  V.  Arnold,  13  Ired.  (N.  C.)  184; 
State  V.  Woodruff,  67  N.  C.  89  ;  \A'ailick 
V.  White,  76  N.  C.  175  ;  Garvin  v.  State, 
52  Miss.  207. 

Other  cases  have  frequently  occurred  in 


28 


LAW    OP   EVIDENCE. 


[part  I. 


which  real  evidence  has  been  successfully 
introduced.  Thus,  in  the  case  oi'  Louis- 
ville, New  Alb.,  &c.  K.R.  Vo.  v.  Wood, 
supra,  it  was  held  that  the  plaintilF  in  an 
accident  case  might  show  the  condition  of 
the  injured  member  as  a  species  of  real 
evidence  of  the  nature  of  the  injury,  la 
the  case  of  Osborne  v.  Detroit,  36  Albany 
Law  Journal,  343,  it  was  held  not  error  in 
an  accident  case,  in  which  the  plaintiff 
claimed  to  be  paralyzed,  for  his  surgeon  to 
thrust  a  pin  into  him  in  court  to  show  that 
the  paralysis  was  real.  So,  also,  in  Thur- 
man  v.  Bertram  (reported  in  20  Alb.  L.  J._ 
151),  tried  in  the  Exchequer  Division  of 
the  High  Court  of  Justice  in  England, 
where  the  plaintiff  sued  for  damages  for 
an  accident  caused  by  his  horse  being 
frightened  by  an  ele[)haut  at  a  show,  and 
the  plaintiff's  case  alleged  that  the  appear- 
ance of  the  elephant  was  "unsightly  and 
unusual,"  the  elephant  was  brought  into 
court  as  real  evidence  of  his  appearance. 
So,  in  a  recent  case  in  Pennsylvania,  John- 
son V.  Com.,  115  Pa.  St.  395,  the  district 
attorney  called  upon  the  prisoner  to  stand 
up  and  repeat  certain  words,  &c.,  iu  the 


presence  of  a  witness  so  that  she  might 
identify  the  voice.  The  request  was 
jtromptly  acceded  to  without  any  objection 
either  by  the  prisoner  himself  or  his  coun- 
sel. The  Court  of  Appeals  held  that  the 
prisoner  thus  waived  the  right  of  objection, 
but  that  even  if  the  prisoner  had  objected, 
the  court  was  not  prepared  to  say  it  would 
be  of  any  avail  to  the  prisoner.  "  He  was 
not  asked,  at  least  compelled,  to  give  evi- 
dence against  himself."  The  sole  object  of 
the  request  was  to  afford  a  witness,  then 
on  the  stand,  an  opportunity  of  seeing  the 
prisoner  and  hearing  the  sound  of  his 
voice,  so  that  she,  the  witness,  might  the 
more  intelligently  identify  the  prisoner. 
Other  cases  which  are  to  tlie  same  general 
effect  are :  Schroeder  v.  Chicago,  &c.  R.  R. 
Co.,  47  Iowa,  375  ;  Mulhado  v.  Brooklyn, 
&e.  R.  R.  Co.,  30  N.  Y.  370  (33  Am.  R.  540 
and  note)  ;  State  v.  Wieners,  66  Mo.  13  ; 
Indiana  Car  Co.  v.  Parker,  100  Ind.  181  ; 
Story  V.  State,  99  Ind.  413;  McDouel 
V.  State,  90  Ind.  320  ;  Short  v.  Sta'te, 
63  Ind.  376  ;  Beavers  v.  State,  58  Ind. 
530. 


CHAP.    IV.]  OF   PRESUMPTIVE    EVIDENCE.  29 


CHAPTER   IV. 

OF   PRESUMPTIVE   EVIDENCE. 

§  14.  Several  kinds  of  presumptions.  The  general  head  of 
Presumptive  Evidence  is  usually  divided  into  two  branches  ; 
namely,  presumptions  of  laiu  and  presumptions  of  fact.  Pre- 
sumptions OP  Law  consist  of  those  rules  which,  in  certain  cases, 
either  forbid  or  dispense  with  any  ulterior  inquiry.  They  are 
founded,  either  upon  the  first  principles  of  justice ;  or  the  laws 
of  nature;  or  the  experienced  course  of  human  conduct  and 
affairs,  and  the  connection  usually  found  to  exist  between  cer- 
tain things.  The  general  doctrines  of  presumptive  evidence  are 
not  therefore  peculiar  to  municipal  law,  but  are  shared  by  it  in 
common  with  other  departments  of  science.  Thus,  the  presump- 
tion of  a  malicious  intent  to  kill,  from  the  deliberate  use  of  a 
deadly  weapon,  and  the  presumption  of  aquatic  habits  in  an 
animal  found  with  webbed  feet,  belong  to  the  same  philosophy ; 
differing  only  in  the  instance,  and  not  in  the  principle,  of  its 
application.  The  one  fact  being  proved  or  ascertained,  the 
other,  its  uniform  concomitant,  is  universally  and  safely  pre- 
sumed. It  is  this  uniformly  experienced  connection  which  leads 
to  its  recognition  by  the  law  without  other  proof;  the  presumj)- 
tion,  however,  having  more  or  less  force,  in  proportion  to  the 
universality  of  the  experience.  And  this  has  led  to  the  distri- 
bution of  presumptions  of  law  into  two  classes ;  namely,  conclusive 
and  disputable. 

§  15.  Conclusive  presumptions.  Conclusive.^  or,  as  they  are 
elsewhere  termed,  imperative,  or  absolute  presumptions  of  law, 
are  rules  determining  the  quantity  of  evidence  requisite  for  the 
support  of  any  particular  averment,  which  is  not  permitted  to  be 
overcome  by  any  proof  that  the  fact  is  otherwise.  They  consist 
chiefly  of  those  cases  in  which  the  long-experienced  connection, 
i)efore  alluded  to,  has  been  found  so  general  and  uniform  as  to 
i-ender  it  expedient  for  the  common  good,  that  this  connection 
should  be  taken  to  be  inseparable  and  universal.  They  have 
been  adopted  by  common  consent,  from  motives  of  public  policy, 
for  the  sake  of  greater  certainty,  and  the  promotion  of  peace  and 


30  LAW   OP    EVIDENCE.  [PART   I. 

I 

quiet  in  the  communit)' ;  and  therefore  it  is,  that  all  corroborating 
evidence  is  dispensed  with,  and  all  opposing  evidence  is  forbidden.  ^ 

§  16.  By  statute.  Sometimes  this  common  consent  is  ex- 
pressly declared,  through  the  medium  of  the  legislature,  in 
statutes.  Thus,  by  the  statutes  of  limitation,  where  a  debt  has 
been  created  by  simple  contract,  and  has  not  been  distinctly 
recognized,  within  six  years,  as  a  subsisting  obligation,  no  ac- 
tion can  be  maintained  to  recover  it;  that  is,  it  is  conclusively 
presumed  to  have  been  paid.  A  trespass,  after  the  lapse  of  the 
same  period,  is,  in  like  manner,  conclusively  presumed  to  have 
been  satisfied.  So  the  possession  of  land,  for  the  length  of  time 
mentioned  in  the  statutes  of  limitation,  under  a  claim  of  abso- 
lute title  and  ownership,  constitutes,  against  all  persons  but  the 
sovereign,  a  conclusive  presumption  of  a  valid  grant.^ 

§  17.  By  the  common  law.  In  other  cases,  the  common  con- 
sent, by  which  this  class  of  legal  presumptions  is  established,  is 
declared  through  the  medium  of  the  judicial  tribunals,  it  being  the 
common  laiv  of  the  land;  both  being  alike  respected,  as  authori- 
tative declarations  of  an  imperative  rule  of  law,  against  the 
operation  of  which  no  averment  or  evidence  is  received.  Thus, 
the  uninterrupted  enjoyment  of  an  incorporeal  hereditament,  for 
a  period  beyond  the  memory  of  man,  is  held  to  furnish  a  con- 
clusive presumption  of  a  prior  grant  of  that  which  has  been  so 
enjoyed.      This  is  termed  a  title  by  prescription.^  (a)      If  this 

i  The  presumption  of  the  Roman  Law  is  defined  to  be,  —  "Conjectura,  ducta  ab 
eo,  quod  ut  plurimum  fit.  Ea  conjectura  vel  a  lege  inducitur,  vel  a  judice.  Quse  ab 
ipsa  lege  inducitur,  vel  ita  comparata,  ut  probationeni  contrarii  baud  admittat ;  vel  ut 
eadem  possit  elidi.  Priorem  doctores  prcesu/nptionem  ji'RIS  et  de  jure,  postcriorem 
pnesamptionem  Juris,  adpellaut.  Quib  a  Judux  indicitur  conjectura,  jirccsumptio 
HOiiiNis  vocari  solet ;  et  semper  admittit  probationeni  contrarii,  quamvis,  si  alicujus 
moraenti  sit,  probandi  onere  relevet."  Hein.  ad  Pand.,  pars  4,  §  124.  Of  tbe  former, 
answering  to  our  conclusive  presumption,  Mascardus  observes,  — "Super  bac  prsesump- 
tioue  lex  firmura  sancit  jus,  et  earn  jrro  vcritnte,  habet."  De  Probationibus,  vol.  i. 
quaest.  x.  48.  An  exception  to  the  general  conclusiveness  of  this  class  of  presumptions 
is  allowed  in  the  case  of  admissions  in  judicio,  which  will  be  hereafter  mentioned. 
See  infra,  §§  169,  186,  205,  206. 

2  This  period  lias  been  limited  differently,  at  different  times  ;  but,  for  the  last  fifty 
years,  it  bas  been  shortened  at  succeeding  revisions  of  the  law,  both  in  England  and 
the  United  States.  By  Stat.  3  &  4  Wm.  IV.  c.  27,  all  real  actions  are  barred  after 
twenty  years  from  the  time  when  the  right  of  action  accrued.  And  this  period  is 
adopted  in  most  of  the  United  States,  though  in  some  of  the  States  it  is  reduced  to 
seven  years,  while  in  others  it  is  prolonged  to  fifty.  See  3  Cruise's  Dig.  tit.  31,  c.  2, 
the  synopsis  of  Limitations  at  the  end  of  the  chapter  (Gi'eenleaf's  ed.).  See  also  4 
Kent,  Comm.  183,  note  (a).  Tlie  same  period  in  regard  to  tbe  title  to  real  property, 
or,  as  some  construe  it,  only  to  the  profits  of  the  land,  is  adopted  in  the  Hindu  Law. 
See  Macnaghten's  Elements  of  Hindu  Law,  vol.  i.  p.  201. 

3  3  Cruise's  Dig.  430,  431  (Greenleaf's  ed.).  "  Prascriptio  est  titulus,  ex  usn  et 
tempore  substantiam  capiens,  ab  authoritate  legis."  Co.  Litt.  113  a.  "What  length  of 
time  constitutes  this  period  of  legal  memory  has  been  niucb  discussed  among  lawyers. 

(a)  See  also  post,  vol.  ii.  §§  537-546. 


CHAP.    IV.]  OF   PRESUMPTIVE   EVIDENCE,  31 

enjoyment  has  been  not  only  uninterrupted,  but  exclusive  and 
adverse  in  its  character,  for  the  period  of  twenty  years,  this  also 
has  been  held,  at  common  law,  as  a  conclusive  presumption  of 
title. 2  There  is  no  difference,  in  principle,  whether  the  subject 
be  a  corporeal  or  an  incorporeal  hereditament;  a  grant  of  land 
may  as  well  be  presumed  as  a  grant  of  a  fishery,  or  a  common, 
or  a  way.  3  But,  in  regard  to  the  effect  of  possession  alone  for 
a  period  of  time,  unaccompanied  by  other  evidence,  as  affording 
a  presumption  of  title,  a  difference  is  introduced,  by  reason  of 
the  statute  of  limitations,  between  corporeal  subjects,  such' as 
lands  and  tenements,  and  things  incorporeal;  and  it  has  been 
held,  that  a  grant  of  lands,  conferring  an  entire  title,  cannot  he 
presumed  from  mere  possession  alone,  for  any  length  of  time 
short  of  that  prescribed  by  the  statute  of  limitations.  The 
reason  is,  that,  with  respect  to  corporeal  hereditaments,  the 
statute  has  made  all  the  provisions  which  the  law  deems  neces- 
sary for  quieting  possessions;  and  has  thereby  taken  these 
cases  out  of  the  operation  of  the  common  law.  The  possession 
of  lands,  however,  for  a  shorter  period,  when  coupled  with  other 
circumstances  indicative  of  ow^nership,  may  justify  a  jury  in 
finding  a  grant ;  but  such  cases  do  not  fall  within  this  class  of 
presumptions.* 

In  this  country,  the  courts  are  inclined  to  adopt  the  periods  mentioned  in  the  statutes 
of  limitation,  in  all  cases  analogous  in  princii)le.  Coolidge  v.  Learned,  8  Pick.  504  ; 
Melvin  v.  Whiting,  10  Pick.  295  ;  Ricard  v.  Williams,  7  Wheat.  110.  In  England,  it 
is  settled  by  Stat.  2  &  3  Wni.  IV.  c.  71,  by  which  the  period  of  legal  memory  has  been 
limited  as  ibllows  :  In  cases  of  rights  of  common  or  other  benefits  arising  out  of  lands, 
except  tithes,  rents,  and  services,  prima  facie  to  thirty  years  ;  and  conclusively  to 
sixty  years,  unless  pioved  to  have  been  held  by  consent,  expressed  by  deed  or  other 
writing  ;  in  cases  of  aquatic  rights,  ways,  and  other  easements,  prima  fade  to  twenty 
years;  and  conclusively  to  forty  years,  unless  proved  in  like  manner,  by  wiitteu 
evidence,  to  have  been  enjoyed  by  consent  of  the  owner  ;  and,  in  cases  of  lights,  con- 
clusively to  twenty  years,  unless  proved  in  like  manner,  to  have  been  enjoyed  by 
consent.  In  the  Eoman  Law,  prescriptions  were  of  two  kinds,  —  extinctive  and 
acquisitive.  The  former  referred  to  rights  of  action,  which,  for  the  most  part,  were 
barred  by  the  lapse  of  thirty  years.  The  latter  had  regard  to  the  mode  of  acquiring 
property  by  long  and  uninterru])ted  possession  ;  and  this,  in  the  case  of  immovable  oV 
real  property,  was  limited,  infer  pnesentcs,  to  ten  years,  and,  inter  abscntcs,  to  twenty 
years.  The  student  will  find  this  doctrine  fully  discussed  in  Mackeldey's  Compendium 
of  Modern  Civil  Law,  vol.  i.  pp.  200-205,  290,  et  scq.  (Amer.  ed.)  with  the  learned 
notes  of  Dr.  Kaufman.     See  also  Novel.  119,  c.  7,  8. 

2  Tyler  v.  Wilkinson,  4  Jdason,  397,  402;  Ingraliam  v.  Hutchinson,  2  Conn.  584; 
Bealey  v.  Shaw,  6  East,  208,  215  ;  Wright  v.  Howard,  1  Sim.  &  Stu.  190,  203;  Strick- 
ler  V.  Todd,  10  Serg.  &  Rawle,  63,  69  ;  Balston  v.  Rensted,  1  Campb.  463,  465;  Daniel 
V.  North,  11  East,  371:  Sherwood  v.  Burr,  4  Day,  244  ;  Tinkham  i'.  Arnold,  3  Greenh 
120;  Hill  V.  Crosby,  2  Pick.  466.  See  Best  on  Presumptions,  p.  103,  n.  (m.);  Bolivar 
Manuf.  Co.  v.  Neponset  Manuf.  Co.,  16  Pick.  241.  See  s.ho  post,  vol.  ii.  §§  537-546, 
tit.  Pkkscuiption. 

3  Ricard  v.  Williams,  7  Wheat.  109  ;  Prop'rs  of  Brattle-Street  Church  v.  Bullard, 
2  Met.  363. 

*  Sumner  v.  Child,  2  Conn.  607,  628-632,  per  Gould,  J.  ;  Clark  v.  Faunce,  4  Pick. 
245. 


32  LAW    OF   EVIDENCE.  [PART   I. 

§  18.  Natural  consequences  intended.  Thus,  also,  a  sane  man 
it  conclusively  presumed  to  contemplate  the  natural  and  prob- 
able consequences  of  his  own  acts ;  and,  therefore,  the  intent  to 
murder  is  conclusively  inferred  from  the  deliberate  use  of  a 
deadly  weapon.  ^  (a)      So  the  deliberate  publication  of  calumny, 

1  1  Russ.  on  Crimes,  658-660  ;  R.-x  v.  Dixon,  3  M.  &  S.  15  ;  1  Hale,  P.  C.  440, 
441  ;  l5ritton,  50,  §  6.  liut  if  deatli  dous  not  ensue  till  a  j'ear  and  a  day  (that  is,  a  full 
year)  after  tlie  stroke,  it  is  conclusively  presumed  that  the  stroke  was  not  the  sole 
cause  of  the  death,  and  it  is  not  murder.  4  Bl.  Conim.  197  ;  Glassford  on  Evid.  592. 
The  doctrine  of  presumptive  evidence  was  familiar  to  the  Mosaic  Code,  even  to  the 
letter  of  the  principle  stated  in  the  text.  Thus,  it  is  laid  down  in  regard  to  the 
raansla)'er,  that  "  if  he  smite  him  with  an  instrument  of  iron,  so  that  he  die  ;"  or,  "if 
he  smite  him  with  throwing  a  stone  ivherewith  he  may  die,  and  he  die  ; "  or,  "  if  he 
smite  him  with  a  hand-UKapon  of  steel  wherewith  he  may  die,  and  he  die,  he  is  a 
murderer."  See  Numb.  xxxv.  16,'  17.  Here,  every  instrument  of  iron  is  conclusively 
taken  to  be  a  deadly  weapon  ;  and  the  use  of  any  such  weajion  raises  a  conclusive  pre- 
sumption of  malice.  The  same  presumption  arose  from  bjiiu/  in  ambush,  and  thence 
destroviu'^  another.  Id.  v.  20.  But,  in  other  cases,  the  existence  of  malice  was  to 
be  proved"  as  one  of  the  facts  in  the  case  ;  and,  in  the  absence  of  malice,  the  offence 
was  reduced  to  the  degree  of  manslaughter,  as  at  the  common  law.  Id.  v.  22,  23. 
This  very  reasonable  distinction  seems  to  have  been  unknown  to  the  Gentoo  Code, 
which  demands  life  for  life  in  all  cases,  except  where  the  culprit  is  a  Brahmin.^  "  If  a 
man  deprives  another  of  life,  the  magistrate  shall  deprive  that  person  of  life."  Hal- 
hed's  Gentoo  Laws,  l)ook  16,  §  1,  p.  233.  Formerly,  if  the  mother  of  an  illegitimate 
child,  recently  born  and  found  dead,  concealed  the  fact  of  its  birth  and  death,  it  was 
conclusively  presumed  that  she  murdered  it.  Stat.  21  Jac.  I.  c.  37  ;  probably  copied 
from  a  similar  edict  of  Hen.  II.  of  France,  cited  by  Domat.  But  this  unreasonable 
and  barbarous  rule  is  now  rescinded,  both  in  England  and  America. 

The  subject  of  implied  malice,  from  the  unexplained  fact  of  killing  with  a  lethal 
weapon  was  fully  discussed  in  Commonwealth  v.  York,  9  Met.  103,  upon  a  difference 
of  opinion  among  the  learned  judges,  and  the  rule  there  laid  down,  in  favor  of  the 
inference,  was  reaffirmed  in  Commonwealth  c.  Webster,  5  Cash.  305. 

(a)    In    Com.    v.    Hawkins,    3    Gray  308  ;    State  v.    McDonnell,    32    Id.    491  ; 

(Mass.),    463,    Chief    Justice    Shaw   said  Brown  v.  State,  4  Tex.  App.  275  ;  Whart. 

that  the  doctrine  of  York's  Case  is  that.  Homicide,   §§  669,   671  ;    State  v.  Smith, 

where  the  killing  is  proved  to  have  been  77  N.  C.  4b8  ;  State  v.   Knigjit,  43  Me. 

committed  by  the  defendant,  and  nothing  12  ;    Stokes   v.    People,    53    N.    Y.    164  ; 

further  is  shown,  the  presumption  of  law  Tiiomas  v.  People,  67  Id.  218.     Cf.  Com. 

is  that  it  was  malicious,   and  an  act   of  v.    McKie,    1     Gray     (Mass.),     CI.       In 

murder,  and  that  it  was  inapplicable  to  a  Kentucky     (Farris     v.     Com.     14     Bush 

case  when  the  circumstances  attending  the  (Ky.),    362)    and     Louisiana     (State     v. 

homicide  were   fully   shown    by   the  evi-  Swayze,  30  La.   An.   Pt.  II.   1323  ;  State 

deuce  ;  that,  in  such  a  case,  the  homicide  v.  Trivas,  32  La.  An.  1086),  it  is  said  that 

being  conceded,  and  no  excuse  being  shown,  there  is  no  such  presumption  as  that  stated 

it  was  either  murder  or  manslaughter,  and  in  York's  Case.     The  ]iresumption  is  in 

that  the  jury,  upon  all  the  circumstances,  any  event  rebuttable,  however,  and  it  may 

must  be  satisfied  beyond  a  reasonable  doubt  be  that  it  will  be  rebutted  by  the  evidence 

that  it  was  done  with  malice,  before  they  for  the  prosecution.     If  so,   no  evidence 

could  find  the  defendant  guilty  of  murder,  need  be  put  in  by  the  defendant  on  this 

This   qualiiication  of  the  rule  in   York's  point.     If  not,  he  must  introduce  evidence 

Case  limits  the  application  of  the  rule  very  to  rebut  the  presumption,  or  it  will  become 

much,  for  in  very  few  cases  will  the  killing  conclusive.     State  v.  Patterson,  and  cases 

bv  the  defendant  be  the  only  thing  shown,  suirra. 

The  circumstances  in  every  case  will  tend  On  indictments  for  malicious  mischief, 

to  prove  or  to  disprove  malice,  which  then  wilful  injuries,  and  similar  offences,  where 

becomes  a  question  of  fact  to  be  decided  malice,  i.  e.  a  spirit  of  wanton  cruelty  or 

by    the  jury.     This  view  of   the   rule  is  wicked  revenge,  is  a  necessary  ingredient 

in    accord   with    Hawthorne   v.    State,  58  in  the  offence,  tliis  will  have  to  be  proved, 

Miss.   778  ;    State  v.    Patterson,    45    Vt.  unless  the  unlawful  act  which  constitutes 


CHAP.    IV.]  OF   PRESUMPTIVE    EVIDENCE.  33 

which  the  publisher  knows  to  be  false,  or  has  no  reason  to  be- 
lieve to  be  true,  raises  a  conclusive  presumption  of  malice. 2(^>) 
So  the  neglect  of  a  party  to  appear  and  answer  to  process,  legally 
commenced  in  a  court  of  competent  jurisdiction,  he  having  l)een 
duly  served  therewith  and  summoned,  is  taken  conclusively 
against  him  as  a  confession  of  the  matter  charged.^ 

§  19.  Records  presumed  correct.  Conclusive  presumptions  are 
also  made  in  favor  of  judicial  proceedings.  Thus  the  records  of 
a  court  of  justice  are  presumed  to  have  been  correctly  made ;  ^  a 
party  to  the  record  is  presumed  to  have  been  interested  in  the 
suit; 2  and  after  verdict,  it  will  be  presumed  that  those  facts, 
without  proof  of  which  the  verdict  could  not  have  been  found, 
were  proved,  though  they  are  not  expressly  and  distinctly  alleged 
in  the  record ;  provided  it  contains  terms  sufficiently  general  to 
comprehend  them  in  fair  and  reasonable  intendment. ^  («)  The 
presumption  will  also  be  made,  after  twenty  years,  in  favor  of 

2  Bodwell  V.  Osgood,  3  Pick.  379  ;  Haire  v.  Wilson,  9  B.  &  C.  643;  Rex  v.  Ship- 
ley, 4  Doug.  73,  177,  per  Ashhurst,  J. 

3  2  Erskine,  Inst.  780.  Cases  of  this  sort  are  generally  regulated  by  statutes,  or 
by  the  rules  of  practice  established  by  the  courts;  but  the  principle  evidently  belongs 
to  a  general  jurisprudence.  So  is  the  Konian  law.  "Contumacia,  eorum,  qui,  jus 
diceuti  non  obtemperant,  litis  damno  coercetur."  Dig.  lib.  42,  tit.  1,  1.  53.  ''  Si 
citatus  aliquis  non  compareat,  habetur  pro  consentiente."  Mascard,  de  Prob.  vol.  iii. 
p.  253,  concl.  1159,  n.  26.  See  further  on  this  subject,  infra,  §§  204-211.  The  right 
of  the  party  to  have  notice  of  the  ])roceedings  against  him,  before  his  non-appearance, 
is  taken  as  a  confession  of  the  matter  alleged,  has  been  distinctly  recognized  in  the 
courts  both  of  England  and  America,  as  a  rule  founded  in  the  first  i)rinciples  of  natu- 
ral justice,  and  of  universal  obligation.  Fisher  v.  Lane,  3  Wils.  302,  303,  per  Lee, 
C.  J.  ;  The  Mary,  9  Cranch,  144,  i^er  Marshall,  C.  J.;  Bradstreet  v.  Neptune  Ins.  Co.,. 
3  Sumn,  607,  per  Story,  J. 

1  Reed  v.  Jackson,  1  East,  355.  "Res  judicata  pro  veritate  accipitur."  Dig.  lib. 
50,  tit.  17,  1.  207. 

-  Stein  V.  Bowman,  13  Pet.  209. 

3  Jackson  v.  Pesked,  1  M.  &  S.  234,  237,  per  Ld.  Ellenborough  ;  Stephen  on  PI, 
166,  167  (Tyler's  ed.  163,  164);  Spiers  t.  Parker,  1  T.  R.  141. 

the  crime  is  of  such  a  nature  as  to  give  than  to  describe  them  correctly."     Beale 

rise  to  a  natural   inference  of  malice,  or  v.   Com.,    25   Pa.    St.    11.     Cf.   Blake  v. 

has  been  judicially  decided  to  be  a  mali-  Lyon  &c.  Comjiany,  77  N.  Y.  626  ;  Lath- 

cious  act.     Evidence  may  be  given  by  the  rop    v.    Stuart,    5   McLean,   C.    C.    167; 

defendant  to  rebut  this  proof  of  malice.  Sprague  v.  Litlierberry,  4  Id.  442  ;  Har- 

Reg.    V.  Matthews,  14    Cox,  Cr.   Cas.  5  ;  diman  v.  Herbert,  11  Tex.  656. 
People  V.  Hunt,  8  Pac.  C.  L.  J.  590;  State  In  pleading  a  discharge  in  bankruptcy, 

V.  Heaton,  77  N.  C.  505  ;  United  States  v.  if  the  plea  shows  the  District   Court  to 

Imsand,  1   Woods,   C.   C.  581  ;  Seibright  have  had  jurisdiction,  and  to  have  pro- 

V.  State,  2  W.  Va.  591  ;  State  v.  Hessen-  ceeded  on  the  petition  to  decree  the  dis- 

kamp,  17  Iowa,  25.  charge,  all  the  intermediate  steps  will  be 

(b)  See  also  ?ws<,  vol.  ii.  §  418.  presumed   to  have  been  regularly  taken. 

(a)   "The  records  of  judicial   proceed-  Morrison  v.  Woolson,   9  Foster  (N.  IL), 

ings  are  memorials  of  the  judgments  and  510.    But  tlie  court  will  not  presume  there 

decrees  of  the  judges,  and  contain  a  gen-  was  jurisdiction  in  a  case  not  according  to 

oral  but  not  a  ])articular  detail  of  nil  that  the  common  law,  —  divorce,  for  instance, 

occurs  before  them.    ]\Iuch  must  be  left  to  —  where   the   record   does   not    show   it. 

intendment   and   presumption,   for    it  is  Com.  v.  Blood,  97  Mass.  538. 
often  less  difficult  to  do  things  correctly 
VOL.  I.  —  3 


34  LAW    OP    EVIDENCE.  [PART    I. 

every  judicial  tribunal  acting  within  its  jurisdiction,  that  all 
persons  concerned  had  due  notice  of  its  proceedings.^  A  like 
presumption  is  also  sometimes  drawn  from  the  solemnity  of  the 
act  done,  though  not  done  in  court.  Thus  a  bond  or  other  spe- 
cialty is  presumed  to  have  been  made  upon  good  consideration^ 
as  long  as  the  instrument  remains  nnimpeached.^ 

§  20.  Presumption  from  lapse  of  time,  and  from  the  act  done. 
To  this  class  of  legal  presumptions  may  be  referred  one  of  the 
applications  of  the  rule,  "  Ex  diuturnitate  temporis  omnia  prae- 
sumuntur  rit^  et  solenniter  esse  acta;"  namely,  that  which  re- 
lates to  transactions,  which  are  not  of  record,  the  proper  evidence 
of  which,  after  the  lapse  of  a  little  time,  it  is  often  impossible, 
or  extremely  difficult  to  produce.  The  rule  itself  is  nothing 
more  than  the  principle  of  the  statutes  of  limitation,  expressed 
in  a  different  form,  and  applied  to  other  subjects.  Thus,  where 
an  authority  is  given  by  law  to  executors,  administrators,  guar- 
dians, or  other  officers  to  make  sales  of  lands,  upon  being  duly 
licensed  by  the  courts,  and  they  are  required  to  advertise  the 
sales  in  a  particular  manner,  and  to  observe  other  formalities 
in  their  proceedings ;  the  lapse  of  sufficient  time  (which  in  most 
cases  is  fixed  at  thirty  years), ^  raises  a  conclusive  presumption 
that  all  the  legal  formalities  of  the  sale  were  observed,  (a)     The 

*  Brown  v.  Wood,  17  Mass.  68.  A  former  judgment,  still  in  force,  by  a  court  of 
competent  jurisdiction,  in  a  suit  between  the  same  parties,  is  conclusive  evidence, 
upon  the  matter  directly  in  question  in  such  suit,  in  any  subsequent  action  or  proceed- 
ing. Duchess  of  Kingston's  Case,  20  Howell  St.  Tr.  355  ;  Ferrer's  Case,  6  Co.  7.  The 
effect  of  judgments  will  be  farther  considered  hereafter.     See  infra,  §§  528-543. 

5  Lowe  V.  Peers,  4  Burr.  2225. 

1  See  Pejepscot  Prop'rs  v.  Ransom,  14  Mass.  145  ;  Blossom  v.  Cannon,  Id.  177  ; 
Colman  v.  Anderson,  10  Mass.  105.  In  some  cases,  twenty  years  has  been  held  suffi- 
cient. As,  in  favor  of  the  acts  of  sheriffs.  Drouet  v.  Rice,  2  Rob.  (La.)  374.  So, 
after  partition  of  lands  by  an  incorporated  land  company,  and  a  several  possession, 
accordingly,  for  twenty  years,  it  was  presumed  that  its  meetings  were  duly  notified. 
Society,  &c.  v.  Young,  2  N.  H.  310  ;  Williams  v.  Eyton,  4  H.  &  N.  357  ;  s.  c.  5  Jur. 
N.  s.  770. 

(a)  These  presumptions  become  con-  been  called,  on  the  application  of  certain 
elusive  only  when  no  proof  is  offered  to  ])ersons  representing  themselves  to  be  pro- 
oppose  them,  or  a  long  time  has  elapsed  prietors,  it  was  held  that  there  was  no 
since  the  transaction.  In  any  other  case  legal  presumption  that  tlie  petitioners  for 
they  are  only  rebuttable  presumptions,  the  meeting  were  proprietois,  however  the 
See  post,  §  38  a.  For  instances  of  such  rule  might  be  as  to  ancient  transactions, 
presumptions,  see  King  v.  Little,  1  Cush.  but  that  proof  of  some  kind  to  show  the 
(Mass.)  436;  Freeman  v.  Thayer,  33  Me.  fact  that  they  were  proprietors  must  be 
76  •  Cobleifh  v.  Young,  15  N.  H.  493  ;  adduced  to  sustain  the  issue.  Stevens  v. 
Freeholders" of  Hudson  Co.  v.  State,  4  Taft,  3  Gray  (Mass.),  487.  Where  the 
Zabr.  (X.  J.)  718  ;  State  v.  Lewis,  2  Id.  evidence  fails  to  show  affirmatively  that 
564  ;  Allegheny  v.  Nelson,  25  Pa.  St.  332;  an  administrator's  bond  was  approved  in 
Plank-road  Co.  v.  Bruce,  6  Md.  457;  Em-  writing  by  the  judge  of  probate,  and  the 
mons  V.  Oldham,  12  Tex.  18.  Where,  contrary  does  not  appear, —if  the  case 
nine  years  before  the  commencement  of  discloses  that  all  the  other  necessary 
the  suit,  a  meeting  of  a  proprietary  had  steps    were    taken    with    strictness    and 


CHAP.    IV.]  OF   PRESDxMPTIVE   EVIDENCE.  35 

license  to  sell,  as  well  as  the  official  cliaracter  of  the  party,  being 
provable  by  record  or  judicial  registration,  must  in  general  be  so 
proved;  and  the  deed  is  also  to  be  proved  in  the  usual  manner; 
it  is  only  the  intermediate  proceedings  that  are  presumed. 
"Probatis  extremis,  prajsumuntur  media.  "^  The  reason  of  this 
rule  is  found  in  the  great  prohability,  that  the  necessary  inter- 
mediate proceedings  were  all  regularly  had,  resulting  from  the 
lapse  of  so  long  a  period  of  time,  and  the  accpiiescence  of  the 
parties  adversely  interested;  and  in  the  great  uncertainty  of 
titles,  as  well  as  the  other  public  mischiefs,  which  would  result, 
if  strict  proof  were  required  of  facts  so  transitory  in  their  nature, 
and  the  evidence  of  which  is  so  seldom  preserved  with  care. 
Hence,  it  does  not  extend  to  records  and  public  documents, 
which  are  supposed  always  to  remain  in  the  custody  of  the  oili- 
cers  charged  with  their  preservation,  and  which,  therefore,  must 
be  proved,  or  their  loss  accounted  for,  and  supplied  by  secondary 
evidence. 3  Neither  does  the  rule  apply  to  cases  of  prescription.* 
§  21.  Ancient  instruments  presumed  to  be  genuine.  The  same 
principle  aj)plies  to  the  proof  of  the  execution  of  ancient  deeds 
and  wills.  Where  these  instruments  are  more  than  thirty  years 
old,  and  are  unblemished  by  any  alterations,  they  are  said  to 
prove  themselves ;  the  bare  production  thereof  is  suiificient :  the 
subscribing  witnesses  being  presumed  to  be  dead.  This  pre- 
sumption, so  far  as  this  rule  of  evidence  is  concerned,  is  not 
affected  by  proof  that  the  witnesses  are  living.^  {a)  But  it  must 
appear  that  the  instrument  comes  from  such  custody  as  to  afford 
a  reasonable  presumption  in  favor  of  its  genuineness ;  and  that  it 

2_2  Erskine,  Inst.  782  ;  Earl  v.  Baxter,  2  W.  Bl.  1228.  Proof  that  one's  ancestor 
sat  in  the  House  of  Lords,  and  that  no  patent  can  be  discovered,  affords  a  presump- 
tion that  lie  sat  by  summons.  The  Braye  Peerage,  6  CI.  &  Fin.  757.  See,  also,  as  to 
presuming  the  authority  of  an  executor,  Piatt  v.  McCullough,  1  McLean,  73. 

3  Brunswick  v.  McKeen,  4  Greenl.  508  ;  Hathaway  v.  Clark,  5  Pick.  490. 

*  Eldridge  v.  Knott,  Cowp.  215  :  Mayor  of  Kingston  v.  Horner,  Id.  102. 

1  Pex  V.  Farringdon,  2  T.  R.  471,  per  Buller,  J.;  Doe  v.  WoUey,  8  B.  &  C.  22; 
Bull.  N.  P.  255;  12  Vin.  Abr.  84;  Gov.  &c.  of  Chelsea  Waterworks  v.  Cowper,  1  Esp. 
275;  Rex  v.  Kyton,  5  T.  R.  259;  Rex  v.  Long  Buckby,  7  East,  45;  M'Kenire  v.  Fraser, 
9  Ves.  5;  Oldnall  v.  Deakin,  3  C.  &  P.  402;  Jackson' r.  Blanshan,  3  Johns.  292;  Winn 
V.  Patterson,  9  Peters,  674,  675;  Bank  United  States  v.  Uandridge,  12  Wheat.  70,  71; 
Henthorn-y.  Doe,  1  Blackf,  157;  Bennett  v.  Runyon,  4  Dana,  422,  424;  Cook  ■;;.  Tot- 
ton,  6  Dana,  110;  Thruston  v.  Masterson,  9  Dana,  233;  Hynde  v.  Vattier,  1  McLean, 
115;  Walton  v.  Coulson,  Id.  124;  Northrop -y.  Wright,  24  Wend.  221. 

accuracy:  that  the  sale  was  public,  that  a    perfect    title.    Austin    v.    Austin,    50 

the   purchaser   entered   immediately   and  Me.    74. 

has    occupied     for    more     than     twenty  (a)  King  v.  Little,  1  Cush.  (Mass.)  436: 

years,    that    by   law  the   bond   must    be  Settle  v.  Alison,  8  Ga.  201.     The  thirt}' 

approved   before  filing,    and   that   it   was  years  to  be  reckoned  from  the  time  of  the 

filed,  —  the    law   will    presume    that   all  testator's  death.     Jackson  v.  Blanshan,  3 

was  done  necessary  to  give  the  purchaser  Johns.  (N.  Y. )  292. 


36  LAW   OF    EVIDENCE.  [PART   I. 

is  otherwise  free  from  just  grounds  of  suspicion  ;2  and,  in  the 
case  of  a  Ijond  for  the  payment  of  money,  there  must  be  some 
indorsement  of  interest  or  other  mark  of  genuineness,  within  the 
thirty  years,  to  entitle  it  to  be  read.^  Whether,  if  the  deed  be 
a  conveyance  of  real  estate,  the  party  is  bound  first  to  show  some 
acts  of  possession  under  it,  is  a  point  not  perfectly  clear  upon  the 
authorities ;  but  the  weight  of  opinion  seems  in  the  negative,  as 
will  hereafter  be  more  fully  explained.*  But  after  an  undis- 
turbed possession  for  thirty  years,  of  any  property,  real  or  per- 
sonal, it  is  too  late  to  question  the  authority  of  the  agent,  who 
has  undertaken  to  convey  it,°  unless  his  authority  was  by  matter 
of  record. 

§  22.  Presumption  from  acts  and  recitals  in  deeds.  Estoppel. 
Estoppels  may  be  ranked  in  this  class  of  presumptions.  A  man 
is  said  to  be  estopped,  when  he  has  done  some  act  which  the 
policy  of  the  law  will  not  permit  him  to  gainsay  or  deny.  The 
law  of  estoppel  is  not  so  unjust  or  absurd  as  it  has  been  too  much 
the  custom  to  represent.  ^  (a)  Its  foundation  is  laid  in  the  obli- 
gation which  every  man  is  under  to  speak  and  act  according  to 
the  truth  of  the  case,  and  in  the  policy  of  the  law,  to  prevent 
the  great  mischiefs  resulting  from  uncertainty,  confusion,  and 
want  of  confidence  in  the  intercourse  of  men,  if  they  were  per- 
mitted to  deny  that  which  they  have  deliberately  and  solemnly 
asserted  and  received  as  true.  If  it  be  a  recital  of  facts  in  a 
deed,  there  is  implied  a  solemn  engagement  that  the  facts  are  so 
as  they  are  recited.  The  doctrine  of  estoppels  has,  however, 
been  guarded  with  great  strictness;  not  because  the  party  en- 
forcing it  necessarily  wishes  to  exclude  the  truth, —  for  it  is 
rather  to  be  supposed  that  that  is  true  which  the  opposite  party 
has  already  solemnly  recited, —  but  because  the  estoppel  may 
exclude  the  truth.  Hence,  estoppels  must  be  certain  to  every 
intent;  for  no  one  shall  be  denied  setting  up  the  truth,  unless 

2  Koe  V.  Rawlings,  7  East,  279,  291;  12  Vin.  Abr.  84,  Evid.  A,  b.  5;  infra,  §§  142, 
570;  Swinnerton  v.  Marquis  of  Stafford,  3  Taunt.  91;  Jackson  v.  Davis,  5  Cowen,  123; 
Jackson  v.  Luquere,  Id.  221;  Doe  v.  Beynoii,  4  P.  &  D.  193;  Doe  v.  Samples,  3  Nev. 
&  P.  254. 

3  Forbes  v.  Wale,  1  W.  Bl.  532;  1  Esp.  278;  s.  c.  infra,  §§  121,  122. 

4  Infra,  §  144,  n.  (1). 

5  Stockbridge  v.  West  Stockbridge,  14  Mass.  257.  Where  there  had  been  a  posses- 
sion of  thirty-five  years,  under  a  legislative  grant,  it  was  held  conclusive  evidence  of  a 
good  title,  though  the  grant  was  unconstitutional.  Trustees  of  the  EpiscoiJal  Church 
in  Newberu  v.  Trustees  of  Newbern  Academj',  2  Hawks,  233. 

1  Per  Taunton,  J.,  2  Ad.  &  El.  291. 

{a)  See  Cruise's  Dig.  (Greenl.  2d  ed. )  tit.  32,  c.  20,  §  64,  n. ;  (Greenl.  2d  ed. 
vol.  ii.  p.  611). 


CHAP.   IV.]  OF   PRESUMPTIVE   EVIDENCE.  37 

it  is  in  plain  and  clear  contradiction  to  his  former  allegations 
and  acts.^  (b) 

§  23.  Same  subject.  In  regard  to  recitals  in  deeds,  the  gen- 
eral rule  is  that  all  parties  to  a  deed  are  bound  by  the  recitals 
therein,^  which  operates  as  an  estoppel,  working  on  the  interest 
in  the  land,  if  it  be  a  deed  of  conveyance  and  binding  both  par- 
ties and  privies;  privies  in  blood,  privies  in  estate,  and  privies 
in  law.  Between  such  parties  and  privies,  the  deed  or  other  mat- 
ter recited  needs  not  at  any  time  be  otherwise  proved,  the  recital 
of  it  in  the  subsequent  deed  being  conclusive.  It  is  not  offered 
as  secondary,  but  as  primary  evidence,  which  cannot  be  averred 
against,  and  which  forms  a  muniment  of  title.  Thus,  the  recital 
of  a  lease,  in  a  deed  of  release,  is  conclusive  evidence  of  the  ex- 
istence of  the  lease  against  the  parties,  and  all  others  claiming 
under  them  in  privity  of  estate.^ 

8  Bowman  v.  Taylor,  2  Ad.  &  El.  278,  289,  per  Ld.  C.  J.  Deiiman;  Id.  291,  per 
Taunton,  J. ;  Lainson  v.  Treniere,  1  Ad.  &  El.  792 ;  Pelletreau  v.  Jackson,  11  Wend. 
117;  4  Kent,  Conim.  261,  note;  Carver  v.  Jackson,  4  Peters,  83. 

1  But  it  is  not  true,  as  a  general  proposition,  that  one  claiming  land  under  a  deed 
to  which  he  was  not  a  jiarty,  ado[its  the  recitals  of  facts  in  an  anterior  deed,  which  go 
to  make  up  his  title.  Therefore,  where,  by  a  deed  made  in  January,  1796,  it  was  re- 
cited that  S.  became  bankrupt  in  1781,  and  that,  by  virtue  of  the  proceedings  under 
the  commission,  certain  lands  had  been  conveyed  to  W.,  and  thereupon  W.  conveyed 
the  same  lands  to  B.  for  the  purpose  of  enabling  him  to  make  a  tenant  to  the  prcccipe  ; 
to  which  deed  B.  was  not  a  jiarty  ;  and  afterwards,  in  February,  1796,  B.  by  a  deed, 
not  referring  to  the  deed  last  meiitioned,  nor  to  the  bankruptcy,  conveyed  the  premises 
to  a  tenant  to  the  prcccipc,  and  declared  the  uses  of  the  recovery  to  be  to  his  mother 
for  life,  remainder  to  himself  in  fee;  it  was  held  that  B.,  in  a  suit  respecting  other  land, 
was  not  estopped  from  disputing  S.'s  bankruptcy.  Doe  v.  Shelton,  3  Ad.  &  El.  265, 
283.  If  the  deed  recite  that  the  consideration  was  paid  by  a  husband  and  wife,  parol 
evidence  is  admissible  to  show  that  the  money  consisted  of  a  legacy  given  to  the  wife. 
Doe  V.  Statham,  7  D.  &  Ry.  141. 

^  Shelley  v.  Wright,  Willes,  9  ;  Crane  v.  Morris,  6  Peters,  611;  Carver  v.  Jackson, 
4  Peters,  1,  83;  Cossens  v.  Cossens,  Willes,  25.  But  such  recital  does  not  bind  stran- 
gers, or  those  who  claim  by  title  paramount  to  the  deed.  It  does  not  bind  persons 
claiming  by  an  adverse  title,  or  persons  claiming  from  the  parties  by  a  title  anterior  to 
the  date  of  the  reciting  deed.  See  Carver  v.  Jackson,  %ibi  supra.  In  this  case,  the 
doctrine  of  estoppel  is  very  fully  expounded  by  Mr.  Justice  Story,  where,  after  stating 
the  general  principle,  as  in  the  text,  with  the  qualification  just  mentioned,  he  proceeds 
(p.  83)  as  follows:  "Such  is  the  general  rule.  But  there  are  cases  in  which  such  a 
recital  may  be  used  as  evidence  even  against  strangers.  If,  for  instance,  there  be  the 
recital  of  a  lease  in  a  deed  of  release,  and  in  a  suit  against  a  stranger  the  title  under 

{h)  It  must  also  appear  that  the  party  ct  scq.  If  not  pleaded,  they  will  be  pre- 
pleading  the  estoppel  is  or  maybe  I)reju-  sumed  to  be  waived.  Outrani  v.  Morewood, 
diced  by  the  act  on  which  he  claims  to  3  East,  346;  Matthew  v.  Osborne,  13  C.  B, 
estop.  Nourse  v.  Nourse,  116  Mass.  101;  919;  Wilson  v.  Butler,  4  Bing.  N.  C.  748; 
Security  Ins.  Co.  v.  P\iy,  22  Mich.  467;  Young  v.  Raincock,  7  t'.  B.  310.  If,  how- 
Bank  of  Hindustan  v.  Alison,  L.  R.  6  ever,  no  opportunity  has  been  allbrded  to 
C.  P.  227.  Estoppels,  by  matter  of  record  plead,  they  may  be  offered  in  evidence 
and  by  deed,  will  not  operate  conclusivelj''  with  the  same  effect  as  if  pleaded.  Adams 
unless  they  be  expressly  pleaded  when  an  v.  Barnes,  17  Mass.  365;  Trevivan  v.  Law- 
opportunity  of  pleading  them  has  been  ranee,  1  Salk.  276  ;  Lord  Feversham  v. 
afforded.  Bradley  v.  Beckett,  7  M.  &  G.  Emerson,  11  Exch.  385.  And  see  Bigelow 
994.     See  also  2  Smith's  Lead  Cas.  670  on  Estop[)el,  for  the  general  subject. 


38  LAW    OF    EVIDENCE.  [PART    I. 

§  24.   Estoppel.     Thus,  also,  a  grantor  is,  in  general,  estopped 
by  his  deed  from  denying  that  he  had  any  title   in  the  thing 

the  release  conies  in  question,  there  the  recital  of  the  lease  in  such  a  release  is  not  per  se 
evidence  of  the  existence  of  the  lease.  But  if  the  existence  and  loss  of  the  lease  be 
established  by  other  evidence,  there  the  recital  is  admissible,  as  secondary  proof,  in  the 
absence  of  more  perfect  evidence,  to  establish  the  contents  of  the  lease  ;  and  if  the 
transaction  be  an  ancient  one,  and  the  possession  has  been  long  held  under  such  re- 
lease, and  is  not  otherwise  to  be  accounted  for,  there  the  recital  will  of  itself,  under 
such'circumstances,  materially  fortify  the  presumption,  from  lapse  of  time  and  length 
of  possession,  of  the  original  existence  of  the  lease.  Leases,  like_  other  deeds  and 
!,'iMnts,  may  be  presumed  from  long  possession,  which  cannot  otherwise  be  explained  ; 
and  under  such  circumstances,  a  recital  of  the  fact  of  such  a  lease  in  an  old  deed  is 
certainly  far  stronger  presumptive  proof  in  favor  of  such  possession  under  title,  than 
the  naked  presumption  arising  from  a  mere  unexplained  possession.  Such  is  the  gen- 
eral result  of  the  doctrine  to  be  found  in  tlie  best  elementary  writers  on  the  subject  of 
evidence.  It  may  not,  however,  be  unimportant  to  examine  a  few  of  the  authorities  in 
support  of  the  doctrine  on  which  we  n-lv.  The  cases  of  Marchioness  of  Annandale  v. 
Harris,  2  P.  Wms.  432,  and  Shelley  v.  Wright,  Willes,  9,  are  sutticiently  direct  as  to 
the  operation  of  recitals  by  way  of  estoppel  between  the  parties.  In  Ford  v.  Grey,  1 
Salk.  285,  one  of  the  points  riiled  was  '  that  a  recital  of  a  lease  in  a  deed  of  release  is 
good  evidence  of  such  lease  against  the  releasor,  and  those  who  claim  under  him  ;  but, 
as  to  others,  it  is  not,  without  proving  that  there  was  such  a  deed,  and  it  was  lost  or 
destroyed.'  The  same  case  is  reported  in  6  Mod.  44,  where  it  is  said  that  it  was  ruled, 
'  that  the  recital  of  a  lease  in  a  deed  of  release  is  good  evidence  against  the  releasor,  and 
those  that  claim  under  him.'  It  is  then  stated,  that  'a  fine  was  produced,  but  no 
deeii  declaring  the  uses;  but  a  deed  was  offered  in  evidence,  which  did  recite  a  deed 
of  limitation  of  the  uses,  and  the  question  was,  whether  that  [recital]  was  evidence  ; 
and  the  court  said,  that  the  bare  recital  was  not  evidence;  but  that,  if  it  could  be 
proved  that  such  a  deed  had  been  [executed],  and  [is]  lost  it  would  do  if  it  were  re- 
cited in  another.'  This  was,  doubtless,  the  same  point  asserted  in  the  latter  clause  of 
the  report  in  Salkeld ;  and,  thus  explained,  it  is  perfectly  consistent  with  the  state- 
ment in  Salkeld  ;  and  must  be  referred  to  a  case  where  the  recital  was  offered  as 
evidence  against  a  stranger.  In  any  other  point  of  view,  it  wouhi  be  inconsistent  with 
the  preceding  propositions,  as  well  as  with  the  cases  in  2  P.  Williams  and  Willes.  In 
Trevivan  v.  Lawrance,  1  Salk.  276,  the  court  held,  that  the  parties  and  all  claiming 
under  them  were  estopped  from  asserting  that  a  judgment,  sued  against  the  party  as  of 
Trinity  term,  was  not  of  that  term,  but  of  another  tei-m;  that  very  point  having 
arisen  "and  been  decided  against  the  party  upon  a  scire  facias  on  the  judgment.  But 
the  court  there  held  (what  is  very  material  to  the  present  purpose),  that,  'if  a  man 
make  a  lease  by  indenture  of  D  in  which  he  hath  nothing,  and  afterwards  purchases  D 
in  fee,  and  afterwards  bargains  and  sells  it  to  A  and  his  heirs,  A  shall  be  bound  by  this 
estoppel;  and,  that  where  an  estoppel  works  on  tlie  interest  of  the  lands,  it  runs  with 
the  land  into  whose  hands  soever  the  land  comes  ;  and  an  ejectment  is  maintainable 
upon  the  mere  estoppel.'  This  decision  is  important  in  several  respects.  In  the  first 
place,  it  shows  that  an  estoppel  may  arise  by  implication  from  a  grant,  that  the  party 
hath  an  estate  in  the  land,  which  he  may  convey,  and  he  shall  be  estopped  to  deny  it. 
In  the  next  place,  it  shows  that  such  estoppel  binds  all  persons  claiming  the  same 
land,  not  only  under  the  same  deed,  but  under  any  subsequent  conveyance  from  the 
same  party;  that  is  to  say,  it  binds  not  merely  privies  in  blood,  but  privies  in  estate, 
as  subse(iuent  grantees  and  alienees.  In  the  next  place,  it  shows  that  an  estoppel, 
which  (as  the  phrase  is)  works  on  the  interest  of  the  land,  runs  witli  it,  into  w^hosesoever 
hands  the  land  comes.  The  same  doctrine  is  recognized  by  Lord  Chief  Baron  Comyns, 
in  his  Digest,  Estoppel,  B  &  E,  10.  In  the  latter  place  (E,  10)  he  puts  the  case  more 
strongly;  for  he  asserts,  that  the  estoppel  binds,  even  though  all  the  facts  are  found 
in  a  sqiecial  verdict.  '  But,'  says  he,  and  he  relies  on  his  own  authority,  '  where  an 
estoppel  binds  the  estate  and  converts  it  to  an  interest,  the  court  will  adjudge  accord- 
ing! v.  As  if  A  leases  land  to  B  for  six  j'ears,  in  which  he  has  nothing,  and  then 
purchases  a  lease  of  the  same  land  for  twenty-one  years,  and  afterwards  leases  to  C  for 
ten  years,  and  all  this  is  found  by  a  verdict ;  the  court  will  adjudge  the  lease  to  B 
good,  though  it  be  so  only  by  conclusion.'  A  doctrine  similar  in  principle  was 
asserted  in  this  court,  in  Terrett  v.  Taylor,  9  Cranch,  52.  The  distinction,  then, 
which  was  urged  at  the  bar,  that  an  estoppel  of  this  sort  binds  those  claiming  under 


CHAP.    IV.]  OF   PRESUMPTIVE    EVIDENCE.  39 

granted.  But  this  rule  does  not  apply  to  a  grantor  acting  ofii- 
cially,  as  a  public  agent  or  trustee.^  A  covenant  of  warranty  also 
estops  the  grantor  from  setting  up  an  after-acquired  title  against 
the  grantee,  for  it  is  a  perpetually  operating  covenant  ;2  (a)  but 
he  is  not  thus  estopped  by  a  covenant,  that  he  is  seised  in  fee  and 
has  good  right  to  convey  ;3  for  any  seisin  in  fact,  though  by 
wrong,  is  sufficient  to  satisfy  this  covenant,  its  import  being 
merely  this,  that  he  has  the  seisin  in  fact,  at  the  time  of  con- 

the  same  deed,  but  not  those  claiming  by  a  subsequent  deed  under  the  same  party,  is 
not  well  founded.  All  privies  in  estate  by  a  subsequent  deed  are  bound  in  the  same 
manner  as  privies  in  blood  ;  and  so,  indeed,  is  the  doctrine  of  Comyns'  Digest,  Estop- 
pel B,  and  in  Co.  Lit.  352  a.  We  may  now  pass  to  a  short  review  of  some  of  the 
American  eases  on  this  subject.  Denn  v.  Cornell,  3  Johns.  Cas.  174,  is  strongly  in 
Ijoint.  There,  Lieutenant-governor  Golden,  in  1775,  made  his  will,  and  in  it  i-ecited 
that  he  had  conveyed  to  his  son  David  his  lands  in  the  township  of  Flushing,  and  he 
then  devised  his  other  estate  to  his  sons  and  daughters,  &c.  Afterwards,  David's 
estate  was  confiscated  under  the  act  of  attainder,  and  the  defendant  in  ejectment 
claimed  under  that  confiscation,  and  deduced  his  title  from  the  State.  No  deed  of  the 
Flushing  estate  (the  land  in  controversy)  was  ])roved  from  the  father  ;  and  the  heir  at 
law  sought  to  recover  on  that  ground.  But  tlie  court  held  that  the  lecital  in  the  will, 
that  the  testator  had  conveyed  the  estate  to  David,  was  an  estoppel  of  the  heir  to  deny 
that  fact,  and  bound  the  estate.  In  this  case,  the  estoppel  was  set  up  by  the  tenant 
claiming  under  the  State,  as  an  estoppel  running  with  the  land.  If  the  State  or  its 
grantee  might  set  up  the  estojipel  in  favor  of  their  title,  then,  as  estoppels  are  recipro- 
cal, and  bind  both  parties,  it  might  have  been  set  up  against  the  State  or  its  grantee. 
It  has  been  said  at  the  bar,  that  the  estate  is  not  bound  by  estoppel  by  any  recital  in 
a  deed.  That  may  be  so  where  the  recital  is  in  his  own  grants  or  patents,  tor  they  are 
deemed  to  be  made  upon  suggestion  of  the  grantee.  (But  see  Commonwealth  v. 
Pejepscot  Proprietors,  10  JMass.  155.)  But  wheie  the  State  claims  title  under  the  deed, 
or  other  solemn  acts  of  third  persons,  it  takes  cmn  onere,  and  subject  to  all  the  estop- 
pels running  with  the  title  and  estate,  in  the  same  way  as  other  privies  in  estate.  In 
Penrose  v.  Griffith,  4  Binn.  231,  it  was  held  that  recitals  in  a  patent  of  the  Com- 
monwealth were  evidence  against  it,  but  not  against  persons  claiming  by  a  title  para- 
mount from  the  Commonwealth.  The  court  there  said,  that  the  rule  of  law  is  that  a 
deed  containing  a  recital  of  another  deed  is  evidence  of  the  recited  deed  against  the 
grantor,  aiul  all  persons  claiming  by  title  derived  from  him  sul).sequently.  The  reason 
of  the  rule  is,  that  the  recital  amounts  to  the  confession  of  the  party  ;  and  that  con- 
fession is  evidence  against  himself,  and  those  who  stand  in  his  place.  But  such  con- 
fession can  be  no  evidence  against  strangers.  The  same  doctiine  was  acted  upon  and 
confirmed  by  the  same  court,  in  Garwood  v.  Dennis,  4  Binn.  314.  In  that  case, 
the  court  further  held  that  a  recital  in  another  deed  was  evidence  against  strangers, 
where  the  deed  was  ancient  and  the  possession  M'as  consistent  with  the  deed.  That 
case  also  had  the  peculiarity  belonging  to  the  present,  that  the  possession  was  of  a 
middle  nature;  that  is,  it  might  not  have  been  held  solely  in  consequence  of  the  deed, 
for  the  party  had  another  title:  but  there  never  was  any  possession  against  it.  There 
was  a  double  title,  and  the  (juestion  was,  to  which  the  possession  might  be  attributable. 
The  court  thought  that,  a  suitable  foundation  of  the  original  existence  and  loss  of  the 
recited  deed  being  laid  in  the  evidence,  the  recital  in  the  deed  was  good  corroborative 
evidence,  even  against  strangers.    And  other  authorities  certainly  warrant  this  decision." 

1  Fairtitle  w.  Gilbert,  2  T.  R.  171  ;  Co.  Lit.  363  b. 

2  Terrett  v.  Taylor,  9  Cranch,  43  ;  Jackson  v.  ilatsdorf,  11  Johns.  97  ;  Jackson  v. 
Wright,  14  Johns.  193  ;  Mc Williams  v.  Nisly,  2  Serg.  &  Kawl.  515  ;  Somes  v.  Skin- 
ner, 3  Pick.  52. 

3  Allen  V.  Sayward,  5  Greenl.  227. 

{a)  In    Blanchard    v.    Ellis,    1    Gray  by  a  title  paramount,  the  grantor  cannot, 

(Mass.),  195,  it   was   held   that   where   a  after  such  eviction,  purchase  the  paramount 

deed  of  land  is  made  with  covenants  of  title  and  compel  the  grantee  to  accept  it 

warranty  and  the  grantee  has  been  evicted  instead  of  damage  for  the  eviction. 


40  LAW   OP   EVIDENCE.  [PART   I. 

veyance,  and  thereby  is  qualified  to  transfer  the  estate  to  the 
grantee.*  (^)  Nor  is  a  feme  covert  estopped,  by  her  deed  of  con- 
veyance, from  claiming  the  land  by  a  title  subsequently  acquired ; 
for  she  cannot  bind  herself  personally  by  any  covenant.^  (c) 
Neither  is  one  who  has  purchased  land  in  his  own  name,  for  the 
benefit  of  another,  which  he  has  afterwards  conveyed  by  deed  to 
his  employer,  estopped  by  such  deed,  from  claiming  the  land  by 
an  elder  and  after-acquired  title. ^  Nor  is  the  heir  estopped  from 
questioning  the  validity  of  his  ancestor's  deed,  as  a  fraud  against 
an  express  statute.'  The  grantee,  or  lessee,  in  a  deed-poll,  is 
not,  in  general,  estopped  from  gainsaying  anything  mentioned  in 
the  deed ;  for  it  is  the  deed  of  the  grantor  or  lessor  only ;  yet  if 
such  grantee  or  lessee  claims  title  under  the  deed,  he  is  thereby 
estopped  to  deny  the  title  of  the  grantor.^ 

§  25.  Same  subject.  It  was  an  early  rule  of  feudal  policy,  that 
the  tenant  should  not  be  permitted  to  deny  the  title  of  the  lord, 
from  whom  he  had  received  investiture,  and  whose  liegeman  he 
had  become;  but,  as  long  as  that  relation  existed,  the  title  of  the 
lord  was  conclusively  presumed  against  the  tenant,  to  be  perfect 
and  valid.  And  though  the  feudal  reasons  of  the  rule  have  long 
since  ceased,  yet  other  reasons  of  public  policy  have  arisen  in 
their  place,  thereby  preserving  the  rule  in  its  original  vigor. 
A  tenant,  therefore,  by  indenture,  is  not  permitted,  at  this  day, 
to  deny  the  title  of  his  lessor,  while  the  relation  thus  created 
subsists.  It  is  of  the  essence  of  the  contract  under  which  he 
claims,  that  the  paramount  ownership  of  the  lessor  shall  be 
acknowledged  during  the  continuance  of  the  lease,  and  that  pos- 
session shall  be  surrendered  at  its  expiration.  He  could  not 
controvert  this  title  without  breaking  the  faith  which  he  had 
pledged.!  («)     But  this  doctrine  does  not  apply  with  the  same 

^  Marston  v.  Hobbs,  2  JIass.  433  ;  Bearce  v.  Jackson,  4  Mass.  408  ;  Twambly  v. 
Henly,  Id.  441  ;  Chapel  v.  Bull,  17  Mass.  213. 

^  Jackson  v.  Vanderhayden,  17  Johns.  167. 

6  Jackson  v.  Mills,  13  Johns.  463  ;  4  Kent,  Comm.  260,  261,  n. 

■^  Doe  V.  Llovd,  8  Scott,  93. 

8  Co.  Lit.  363  b ;  Goddard's  Case,  4  Co.  4.  Bat  he  is  not  always  concluded  by  re- 
citals in  anterior  title-deeds.     See  supra,  §  23,  n. 

1  Cora.  Dig.  Estoppel,  A,  2  ;  Craig.  Jus.  Feud.  lib.  3,  tit.  5,  §§  1,  2  ;  Blight's  Les- 
see V.  Rochester,  7  Wheat.  535,  547. 

{b)  These  cases  have  not  been  followed  (n)  The  assignee  of  a  lease,  who  enters 

in  some  of  the  other  States,  where  it  is  upon  and  occupies  the  premises,  is  estopped 

held   that   covenants   of  seisin   bind    the  in  an  action  for  the  rent,  brought  against 

party  to  show  that  he  had  good  title  at  him  by  the  original  lessor,  to  deny  the  va- 

the  date  of  the  covenant.     See  Richardson  lidity  of  the  assignment  by  the  original 

V.  Dorr,  5  Vt.  9  ;  Hosmer,  C.  J.,  in  Lock-  lessee  to  him.     Blake  v.  Sanderson,  1  Gray 

wood  V.  Sturdevant,  6  Conn.  373.  (Mass. ),  332. 

(c)  Lowell  V.  Daniels,  2  Gray(Mass.),  161. 


CHAP.    IV.]  OF   PRESUMPTIVE   EVIDENCE.  41 

force,  and  to  the  same  extent  between  other  parties,  such  as 
releasor  and  releasee,  where  the  latter  has  not  received  posses- 
sion from  the  former.  In  such  cases,  where  the  party  already 
in  possession  of  land,  under  a  claim  of  title  by  deed,  purchases 
peace  and  quietness  of  enjoyment,  by  the  mere  extinction  of  a 
hostile  claim  by  a  release,  without  covenants  of  title,  he  is  not 
estopped  from  denying  the  validity  of  the  title,  which  he  has 
thus  far  extinguished. ^  Neither  is  this  rule  applied  in  the  case 
of  a  lease  already  expired ;  provided  the  tenant  has  either  quitted 
the  possession,  or  has  submitted  to  the  title  of  a  new  landlord  ;3 
nor  is  it  applied  to  the  case  of  a  tenant,  who  has  been  ousted  or 
evicted  by  a  title  paramount ;  or  who  has  been  drawn  into  the 
contract  by  the  fraud  or  misrepresentation  of  the  lessor,  and  has, 
in  fact,  derived  no  benefit  from  the  possession  of  the  land.*  Nor 
is  a  defendant  in  ejectment  estopped  from  showing  that  the  party, 
under  whom  the  lessor  claims,  had  no  title  when  he  conveyed  to 
the  lessor,  although  the  defendant  himself  claims  from  the  same 
party,  if  it  be  by  a  subsequent  conveyance.^ 

§  26.  Restricted  to  particulars.  This  rule  in  regard  to  the 
conclusive  effect  of  recitals  in  deeds  is  restricted  to  the  recital 
of  things  in  particular,  as  being  in  existence  at  the  time  of  the 
execution  of  the  deed;  and  does  not  extend  to  the  mention  of 
things  in  general  terms.  Therefore,  if  one  be  bound  in  a  bund, 
conditioned  to  perform  the  covenants  in  a  certain  indenture,  or 
to  pay  the  money  mentioned  in  a  certain  recognizance,  he  shall  not 
be  permitted  to  say  that  there  was  no  such  indenture  or  recog- 
nizance. But  if  the  bond  be  conditioned,  that  the  obligor  shall 
perform  all  the  agreements  set  down  by  A,  or  carry  away  all  the 
marl  in  a  certain  close,  he  is  not  estopped  by  this  general  con- 
dition from  saying,  that  no  agreement  was  set  down  by  A,  or 
that  there  was  no  marl  in  the  close.  Neither  does  this  doctrine 
apply  to  that  which  is  mere  description  in  the  deed,  and  not  an 
essential  averment:  such  as  the  quantity  of  land;  its  nature, 
whether  arable  or  meadow ;  the  number  of  tons  in  a  vessel  char- 
tered by  the  ton ;  or  the  like ;  for  these  are  but  incidental  and 

2  Fox  V.  Widgery,  4  Greenl.  214  ;  Blight's  Lessee  v.  Rochester,  7  Wheat.  535,  547  ; 
Ham  V.  Ham,  2  Shepl.  351.  Thus,  where  a  stranger  set  up  a  title  to  the  premises,  to 
wluch  the  lessor  submitted,  directing  his  lessee  in  future  to  pay  the  rent  to  the  stranger  ; 
it  was  held,  that  the  lessor  was  estopped  from  afterwards  treating  the  lessee  as  his  ten- 
ant ;  and  that  the  tenant,  u])on  the  lessor  aftei'wards  distraining  for  rent,  was  not  es- 
topped to  allege,  that  the  right  of  the  latter  had  expired.  Downs  v.  Cooper,  2  Q.  B, 
256. 

3  England  v.  Slade,  4  T.  R.  682  ;  Balls  v.  Westwood,  2  Campb.  11. 

4  Hayne  v.  Maltby,  3  T.  K.  438  ;  Hearn  v.  Tomlin,  Peake's  Cas.  191. 
6  Doe  V.  Payne,  1  Ad.  &  El.  538. 


42  LAW   OF    EVIDENCE.  [PART   I. 

collateral  to  the  princii)al   thing,  and  may  be  supposed  not  to 
have  received  the  deliberate  attention  of  the  parties.^  (a) 

§  27.  Admissions.  In  addition  to  estoppels  by  deed,  there  are 
two  classes  of  admissions  which  fall  under  this  head  of  conclusive 
presumptions  of  law;  namely,  solemn  admissions,  or  admissions 
injudieio,  which  have  been  solemnly  made  in  the  course  of  judi- 
cial proceedings,  either  expressly,  and  as  a  substitute  for  proof 
of  the  fact,  or  tacitly,  by  pleading;  and  unsolemn  admissions, 
extra  judicium,  which  have  been  acted  upon,  or  have  been  made 
to  influence  the  conduct  of  others,  or  to  derive  some  advantage 

1  4  Com.  Dig.  Estoppel,  A,  2  ;  Yelv.  227  (by  Metcalf),  note  (1)  ;  Doddington's  Case, 
2  Co.  33  ;  Skipworth  v.  Green,  8  Mod.  311  ;  s.  c.  1  Str.  610.  Whether  tlie  recital  of 
the  payment  of  the  consideration-money,  in  a  deed  of  conveyance,  falls  within  the  rule, 
by  which  the  party  is  estopped  to  deny  it,  or  belongs  to  the  exceptions,  and  therefore 
is  open  to  opposing  proof,  is  a  point  not  clearly  agreed.  In  England,  the  recital  is  re- 
garded as  conclusive  evidence  of  payment,  binding  the  parties  by  estoppel.  Slielley  v. 
Wright,  Willes,  9  ;  Cossens  v.  Cossens,  Id.  25  ;  Rowntree  v.  Jacob,  2  Taunt.  141  ; 
Lampon  v.  Corke,  5  B.  &  Aid.  606  ;  Baker  v.  Dewey,  1  B.  &  C.  704  ;  Hill  v.  Manches- 
ter and  Salford  Water  Works,  2  B.  &  Ad.  544.  See  also  Powell  v.  Monson,  3  Mason, 
347,  351,  356.  But  the  American  courts  have  been  disposed  to  treat  the  recital  of  the 
amount  of  the  money  paid,  like  the  mention  of  the  date  of  the  deed,  the  quantity  of 
land,  the  amount  of  tonnage  of  a  vessel,  and  other  recitals  of  quantity  and  value,  to 
which  the  attention  of  the  parties  is  supposed  to  have  been  but  slightly  directed,  and  to 
which,  therefore,  the  principle  of  estoppels  does  not  apply.  Hence,  though  the  party  is 
estopped  from  denying  the  conveyance,  and  that  it  was  for  a  valuable  consideration,  yet 
the  weight  of  American  authority  is  in  favor  of  treating  the  recital  as  only  prima  fade 
evidence  of  the  amount  paid,  in  an  action  of  covenant  by  the  grantee  to  recover  back 
the  consideration,  or,  in  an  action  of  assumpsit  by  the  grantor,  to  recover  the  price 
which  is  yet  unpaid.  The  principal  cases  are,  —in  Massachusetts,  Wilkinson  v.  Scott, 
17  Mass.  249  ;  Clapp  v.  Tirrell,  20  Pick.  247;  Livermore  v.  Aldrich,  5  Cush.  431:  in 
Maine,  Schilliiiger  v.  ^IcCann,  6  Greenl.  364  ;  Tyler  v.  Carlton,  7  Greenl.  175  ;  Em- 
mons V.  Littlefield,  1  Shepl.  233  ;  Burbank  v.  Gould,  3  Shepl.  118  :  in  Vermont,  Beach 
V.  Packard,  10  Vt.  96  :  in  New  Hampshire,  Morse  v.  Shattuck,  4  N.  H.  229  ;  Pritch- 
ard  V.  Brown,  Id.  397  :  in  Connecticut,  Belden  v.  Seymour,  8  Conn.  304  :  in  New 
York,  Shepliard  V.  Little,  14  Johns.  210  ;  Bowen  v.  Bell,  20  Johns.  338  ;  Whitbeck  v. 
Whitbeck,  9  Cowen,  266  ;  McCrea  v.  Purmort,  16  Wend.  460  :  in  Pennsylvania,  Weigly 
V.  Weir,  7  Serg.  &  Rawle,  311  ;  Watson  v.  Blaine,  12  Serg.  &  Eawle,  131  ;  Jack  v. 
Dougherty,  3  Watts,  151  :  in  Maryland,  Higdon  v.  Thomas,  1  Har.  &  Gill,  139  ;  Lingan 
V.  Henderson,  1  Blaud,  Ch.  236,  249  :  in  Virginia,  Duval  v.  Bibb,  4  Hen.  &  Munf.  113  ; 
Harvey  v.  Alexander,  1  Randolph,  219  :  in  South  Carolina,  Curry  y.  Lyles,  2  Hill,  404  ; 
Garrett  v.  Stuart,  1  McCord,  514  :  in  Alabama,  Mead  v.  Steger,  5  Porter,  498,  507  :  in 
Tennessee,  Jones  v.  Ward,  10  Yerger,  160,  166  :  in  Kentucky,  Hutchison  v.  Sinclair, 
7  Monroe,  291,  293  ;  Gully  v.  Grubbs,  1  J.  J.  Marsh.  389.  The  courts  in  North  Caro- 
lina seem  still  to  hold  the  recital  of  payment  as  conclusive.  Brocket  v.  Foscue,  1 
Hawks,  64  ;  Spiers  v.  Clay,  4  Hawks,  22  ;  Jones  v.  Sasser,  1  Dev.  &  Batt.  452.  And 
in  Louisiana,  it  is  made  so  by  legislative  enactment.  Civil  Code  of  Louisiana,  art. 
2234  ;  Forest  v.  Shores,  U  La.  416.     See  also  Steele  v.  Worthington,  2  Ohio,  350. 

(a)  Carpenter  v.  Buller,  8  M.    &   W.  See  Blanchard  v.  Ellis,  1  Gray  (Mass.), 

212.      And  see  Cruise's  Dig.  (Greenl.  2d  195.     And  the  grantor's  privies  in  estate 

ed.)  tit.  32,  c.  2,  §  38,  n.  ;  c.  20,  §  52,  n.  are  also  esto])ped,  though  the  grantor  had 

(Greenl.  2d  ed.  vol.  ii.  pp.  322,  607).     But  no  title  when  he  conveyed.     White  ?;.  Pat- 

the  recital  is  not  even  ;)nm«/ac?e  evidence  ten,    24  Pick.  (Mass.)  324.     But  such  a 

of  payment  when  the  deed  is  attacked  as  covenant  does  not  estop  the  grantor  from 

fraudulent   by   creditors    of    the   grantor,  claiming  a  way  of  necessity  over  the  land 

Bolton  V.  Jacks,   6   Robt.   (N.  Y.)   166  ;  gi-anted.       Brigham    v.    Smith,    4    Gray 

Whittaker  v.  Garnett,  3  Bush  (Ky.),  402.  (Mass.),  297. 


CHAP.    IV.]  OF   PRESUMPTIVE   EVIDENCE.  43 

to  the  party,  and  which  cannot  afterwards  be  denied  without  a 
breach  of  good  faith.  Of  the  former  class  are  all  agreements 
of  counsel,  dispensing  with  legal  proof  of  facts.  ^  So  if  a  mate- 
rial averment,  well  pleaded,  is  passed  over  by  the  adverse  party, 
without  denial,  whether  it  be  by  confession,  or  by  pleading  some 
other  matter,  or  by  demurring  in  law,  it  is  thereby  conclusively 
admitted. 2  So  also  the  payment  of  money  into  court,  under  a 
rule  for  that  purpose,  in  satisfaction  of  so  much  of  the  claim  as 
the  party  admits  to  be  due,  is  a  conclusive  admission  of  the  char- 
acter in  which  the  plaintiff  sues,  and  of  his  claim  to  the  amount 
paid.^  The  latter  class  comprehends,  not  only  all  those  declara- 
tions, but  also  that  line  of  conduct  by  which  the  party  has  in- 
duced others  to  act,  or  has  acquired  any  advantage  to  himself.^ 
Thus,  a  woman  cohabited  with,  and  openly  recognized,  by  a  man, 
as  his  wife,  is  conclusively  presumed  to  be  such,  when  he  is  sued 
as  her  husband,  for  goods  furnished  to  her,  or  for  other  civil 
liabilities  growing  out  of  that  relation.^  So  where  the  sheriff 
returns  anything  as  fact,  done  in  the  course  of  his  duty  in  the 
service  of  a  precept,  it  is  conclusively  presumed  to  be  true  against 
him.^  And  if  one  party  refers  the  other  to  a  third  person  for 
information  concerning  a  matter  of  mutual  interest  in  contro- 
versy between  them,  the  answer  given  is  conclusively  taken  as 
true,  against  the  party  referring.'  This  subject  will  hereafter 
be  more  fully  considered,  under  its  appropriate  title.  ^ 

§  28.  Infants  and  married  women.  Conclusive  presumptions  of 
law  are  also  made  in  respect  to  infants  and  married  women. 
Thus,  an  infant  under  the  age  of  seven  years  is  conclusively  pre- 
sumed to  be  incapable  of  committing  any  felony,  for  want  of 
discretion :  ^  (a)  and,  under  fourteen,  a  male  infant  is  presumed 
incapable  of  committing  a  rape. ^  (6)     A  female  under  the  age  of 

1  See  infra,  §§  169,  170,  186,  204,  205  ;  Kohn  v.  Marsh,  3  Rob.  (La.)  48. 

2  Young  V.  Wright,  1  Camp.  139  ;  Wilson  v.  Turner,  1  Taunt.  398.  But  if  a  deed 
is  admitted  in  yileading,  there  must  still  be  proof  of  its  identity.  Johnston  v.  Cotting- 
ham,  1  Armst.  Macartn.  &  Ogle,  11. 

3  Cox  V.  Parry,  1  T.  R.  464  ;  Watkins  v.  Towers,  2  T.  R.  275  ;  Griffiths  v.  Williams, 
1  T.  R.  710.     See  infra,  §  205,  vol.  ii.  §  600. 

*  See  infni,  §§  184,  195,  196,  207,  208. 

5  Watson  V.  Threlkeld,  2  Esp.  637;  Monro  v.  De  Chemant,  4  Campb.  215  ;  Robin- 
son V.  Mahon,  1  Campb.  245  ;  post,  §  207. 

•»  Simmons  v.  Bradford,  15  Mass.  82. 

■f  Lloyd  V.  Willan,  1  Esp.  ]  78  ;  Delesline  v.  Greenland,  1  Bay,  458  ;  Williams  v. 
Innes,  1  Camp.  364  ;  Burt  v.  Palmer,  5  Esp.  145. 

8  See  infra,  §§  169-212. 

1  4  Bl.  Comm.  23. 

2  1  Hale,  P.  C.  630;  1  Russell  on  Crimes,  801,  5th  Eng.  ed.  859  ;  Reg.  v.  Philips, 
8  C.  &  P.  736  ;  Reg.  v.  Jordan,  9  C.  &  P.  118. 

(a)  See^osi!,  vol.  iii,  §  4.  {b)  See  post,  vol.  iii.  §§  4,  215. 


u 


LAW   OP    EVIDENCE, 


[part  I. 


ten  years  is  presamed  incapable  of  consenting  to  sexual  inter- 
course. ^  Where  the  husband  and  wife  cohabited  together,  as 
such,  and  no  impotcncy  is  proved,  the  issue  is  conclusively  pre- 
sumed to  be  legitimate,  though  the  wife  is  proved  to  have  been 
at  the  same  time  guilty  of  infidelity. ^(c)    And  if  a  wife  act  in 

8  1  Russell  on  Crimes,  810,  5th  Ens-  ed.  871. 

*  Cope  V.  Cope,  1  Moo.  k  Rob.  269,  276;  Morris  v.  Davies,  3  C.  &  P.  215  ;  St. 
Georc'e  v.  St.  Margaret,  1  Salk.  123  ;  Banbury  Peerage  Case,  2  Selw.  N.  P.  (by 
Wheaton),  558;  s.  c.  1  Sim.  &  Stu.  153;  Rex  v.  Lutie,  8  East,  193.  But  if  they 
lived  apart,  though  within  such  distance  as  afforded  an  opportunity  for  intercourse,  the 
presumption  of  legitimacy  of  the  issue  may  be  rebutted.  Morris  v.  Davies,  5  C.  &  Fin. 
163.  Non-access  is  not  presumed  from  the  fact,  that  the  wife  lived  in  adultery  with 
another ;  it  must  be  proved  aliunde.     Regina  v.  Mansfield,  1  G.  &  Dav.  7.     Post,  §  81. 

membered  that  the  husband  and  wife  are 


(c)  This  is  now  held  a  rebuttable  pre- 
sumption. It  is  stated  by  Mr.  Stephen 
as  follows,  Digest  of  Evidence,  art.  98  : 
"  The  fact  that  any  person  was  born  dur- 
ing tlie  continuance  of  a  valid  marriage 
between  his  mother  and  any  man,  or  within 
such  a  time  after  the  dissolution  thereof, 
and  before  the  celebration  of  another 
valid  marriage,  that  his  mother's  husband 
could  have  been  his  father,  is  conclusive 
proof  that  he  is  the  legitimate  child  of  his 
mother's  husband,  unless  it  can  be  shown 
either  that  his  mother  and  her  husband 
had  no  access  to  each  other  at  any  time 
when  he  could  have  been  begotten,  regard 
being  had  both  to  the  date  of  the  birth  and 
the  physical  condition  of  the  husbaml,  or 
that  the  circumstances  of  their  access  (if 
any)  were  such  as  to  render  it  highly 
improbable  that  sexual  intercourse  took 
])]ace  between  them  when  it  occurred." 
Legge  V.  Edmonds,  25  L.  J.  Eq.  125,  p. 
135;  Reg.  v.  Mansfield,  1  Q.  B.  444;  Ride- 
out's  Trusts,  L.  R.  10  Eq.  41  ;  Phillips 
V.  Allen,  2  Allen  (Mass.),  453;  Sullivan 
V.  Kelly,  3  Allen  (Mass.),  148;  Pittsford 
V.  Chittendon,  58  Vt.  51  ;  State  v.  Pet- 
taway,  3  Hawks,  623  ;  Com.  v.  Shepherd, 
6  Binn.  283  ;  Tate  v.  Penne,  7  Mart.  (La.) 
N.  s.  548  ;  Cross  v.  Cross,  3  Paige,  139 ; 
Com.  V.  Wentz,  1  Ashm.  269 ;  Vaughn 
V.  Rhodes,  2  McCord,  227 ;  CaujoUe  v. 
Ferrie,  26  Barb.  177  ;  Strode  v.  Magowan, 
2  Bush,  621  ;  Van  Aeruamy.  Van  Aernam, 
1  Barb.  Ch.  375 ;  Herring  v.  Goodson,  43 
Miss.  392;  Dean  v.  State,  29  Ind.  483. 
In  Hawes  v.  Draeger,  L.  R.  23  Ch.  Div. 
173,  the  case  raised  the  question  of  legiti- 
macy of  a  daughter.  It  was  proved  that 
she  was  born  daring  her  father's  lifetime, 
and  Kay,  J.,  says  :  "  That  fact  is  prima 
facie  evidence  that  she  was  legitimate.  It 
has  been  argued  that  such  presumption 
can  only  be  rebutted  by  positive  evidence 
of  non-access  of  the  husband  to  the  wife 
during  such  time  as  might  make  him  the 
father  of  the  child.     But  it  must  be  re- 


not  allowed  to  give  evidence  on  the  ques- 
tion of  non-access,  and  therefore  it  is  im- 
possible to  prove  that  there  was  no  access. 
All  that  can  be  done  is  to  show  circum- 
stances, from  which  non-access  may  be 
inferred,"  and  he  states  the  law  as  estab- 
lished in  the  Banbury  Peerage  Case,  1  S. 
&  S.  153,  and  recognized  in  Morris  v. 
Davies,  5  CI,  &  F.  163,  251,  as  follows  : 
"  That  when  husband  and  wife  have  op- 
portunities of  access,  the  presumption  of 
legitimacy  may  be  rebutted  by  circum- 
stances inducing  a  contrary  presumption, 
and  that  non-access  or  non-generating  ac- 
cess may  be  proved  by  means  of  such 
legal  evidence  as  is  admissible  in  every 
other  case  in  which  a  legal  fact  has  to  be 
proved."  In  Pittsford  v.  Chittendon,  58 
Vt.  51,  the  agreed  statement  of  facts  upon 
which  the  case  was  tried,  stated  that  a  fe- 
male pauper  was  married  August  29,  1857, 
to  a  man  who  deserted  her,  and  removed 
to  California  in  1860,  where  he  remained 
so  far  as  known;  that  in  1864  a  child 
was  born  to  the  pauper,  who  was  removed 
to  the  town  of  Chittendon,  as  a  pauper, 
on  an  order  of  removal  made  in  1872,  when 
said  child  was  about  eight  years  old.  The 
court  held  that  the  husband  clearly  had  no 
opportunity  of  access  to  the  pauper  after 
his  desertion  of  her  in  1860,  and  could  not 
have  been  the  father  of  the  child  born  of 
her  in  1864,  and  that  the  cliild  was  illegi- 
timate. In  Rex  V.  Maidstone,  12  East, 
550,  it  was  held  that,  in  a  case  where  the 
husband  was  gone  beyond  the  seas  for  two 
years  next  before  the  birth  of  a  child  borne 
by  his  wife,  she  remaining  at  home,  the 
conclusion  was  irresistible  that  the  child 
was  a  kastaid.  Also  in  Tlie  Barony  of 
Saye  and  Sele,  1  H.  L.  Cas.  507,  it  was 
held  that  the  illegitimacy  of  a  child  born 
of  a  married  woman  is  established  by  evi- 
dence of  her  husband's  residing  in  another 
kingdom  during  the  time  the  child  must 
have  been  begotten,  as  access  was  impos- 


CHAP.    IV.] 


OF   PRESUMPTIVE    EVIDENCE. 


45 


company  with  her  husband  in  the  commission  of  a  felony,  other 
than  treason  or  homicide,  it  is  conclusively  presumed,  that  she 
acted  under  his  coercion,  and  consequently  without  any  guilty 
intent.^  (d) 

§  29.  Survivorship.     Where  the  succession  to  estates  is  con- 

6  4  RI.  Coram.  28,  29  ;  Aiion.,  2  East,  P.  C.  559. 


sihle.  And  in  Patterson  v.  Gaines,  6 
How.  U.  S.  550,  it  was  held  that  the  legi- 
tiiuacy  of  the  issue  born  of  a  married  wo- 
n;an  may  he  mipugued  by  evidence  showing 
it  to  be  impossible  for  the  husband  to  be 
the  lather. 

In  Gardner  v.  Gardner,  L.  R.  2  App. 
Cas.  723,  where,  after  an  open  courtsliip 
and  constant  intercourse,  a  man  and  woman 
married,  the  woman  being  at  the  time  of 
the  marriage  in  an  advanced  and  visible 
state  of  pregnancy,  and  a  child  was  born 
in  less  than  seven  weeks  after  the  marriage, 
Lord  Cairns  treated  it  as  a  presumption  of 
fad,  that  the  child  was  the  child  of  the 
husband.  This  was,  however,  a  case  of 
Scotch  law,  and  he  intimated  that  by  the 
law  of  England  it  would  be  a  presumption 
of  law. 

((/)  This  p^resumption  has  been  much 
weakened  by  the  recent  decisions.  At 
present  the  rule  as  established  by  the  cases 
seems  to  be  that  when  it  is  shown  that  a 
crime  has  been  committed  by  a  married 
woman  in  the  presence  of  her  husband,  if 
it  is  not  shown  that  she  took  a  willing  and 
active  part  in  the  crime,  or  was  the  inciter 
of  it,  a  presumption  of  law  exists  that  she 
was  under  his  coercion,  but  if  evidence 
tending  to  show  willing  particiimtion  is 
put  in,  the  question  is  for  the  jury  upon 
the  whole  evidence,  whether  the  woman 
took  such  a  part  in  the  crime  as  to  show 
that  she  was  exercising  her  own  free  will, 
and  was  not  acting  under  compulsion  by 
her  husband.  Reg.  v.  John,  13  Cox,  Cr. 
Cas.  100  ;  Reg.  v.  Torpey,  12  Id.  45  ;  Reg. 
V.  Cohen,  11  Id.  99;  Goldstein  v.  People,  82 
N.  Y.  231 ;  United  States  u.  De  Quilfeldt, 
2  Grim.  L.  Mag.  211  ;  Seller  v.  People,  77 
N.  Y.  4U  ;  Rex  v.  Hughes,  2  Lewin,  C.  C. 
229;  Rex  v.  Pollard,  8  C.  &  P.  553  ;  Reg. 
V.  Stapleton,  1  Jeff".  C.  C.  93  ;  Com.  v. 
Burk,  11  Gray  (Mass.),  437;  Com.  v. 
Eagan,  103  Mass.  71  ;  Com.  v.  Butler,  1 
Allen  (Mass.),  4  ;  Com.  v.  Hopkins,  133 
Mass.  381  ;  Com.  v.  Gormley,  Id.  580; 
Com.  V.  Conrad,  28  Leg.  Int.  310 ;  Com.  v. 
Lindsey,  2  Leg.  Chron.  232, 

The  presence  of  the  husband  may  be 
constructive  as  well  as  actual.  If  the 
woman  is  so  near  him  as  to  be  under  his 
immediate  influence  and  control,  the  pre- 


sumption arises  though  he  may  be  in  an- 
other room.  Com.  v.  Burk,  supra  ;  Com. 
V.  Munsey,  112  Mass.  287  ;  Com.  f.  Fla- 
herty, 140  Mass.  454.  The  presumption 
of  coercion  extends  also  to  torts  conmiit- 
ted  by  the  wife.  The  presence  of  the 
husband  when  the  tort  was  committed 
raises  a  presumption  that  it  was  done 
by  his  direction,  but  this  presumption 
is  not  conclusive.  Franklin's  Adminis. 
Appeal,  115  Pa.  St.  538;  Cassin  v.  De- 
laney,  38  N.  Y.  178.  This  presumption 
is  also  of  force  against  the  husband,  as 
well  as  in  favor  of  the  wife.  For  instance, 
in  the  case  where  a  man  was  indicted  for 
keeping  and  maintaining  a  common  nui- 
sance, to  wit,  a  house  of  ill-fame,  it  was 
held  that  the  evidence  of  acts  done  by  his 
wife  in  his  immediate  presence  were  pre- 
sumed to  be  done  by  his  direction.  Com. 
V.  Hill,  145  Mass.  305.  This  presumption 
raises  only  a  privm  facie  case,  and  may 
be  met  by  evidence  that  the  act  was  done 
against  the  will  of  the  husband.  For  in- 
stance, if  the  act  related  to  his  wife's  sep- 
arate property,  as  in  the  above  case,  where 
the  house  which  was  illegally  kept  was 
owned  by  the  wife,  the  husband  is  pre- 
sumed to  have  compelled  her  to  so  keep 
it,  but  he  may  introduce  evidence  to  show 
that  he  remonstrated  with  her  and  forbade 
her  so  to  use  it,  and  the  whole  question 
will  then  be  one  of  fact  for  the  jury  to  find 
whether  he  did  or  did  not  consent  to  such 
use.  The  fact  that  the  property  was  the 
wife's  would  weaken  the  piesumption  of 
coercion,  but  would  not  do  away  with  it. 
Com.  V.  Hill,  supra, 

A  further  presumption  has  been  held  to 
arise  under  recent  statutes  providing  for 
the  separate  ownership  of  property  by 
married  women.  In  this  case  property  in 
possession  of  the  husband  is  presumed  to 
belong  to  him  and  not  to  the  wife.  This 
presumption  is  said  to  be  a  violent  one, 
but  is  adhered  to  for  the  purpose  of  pro- 
tecting creditors.  If  the  wife  sets  up 
a  claim  to  it  as  against  her  husband's 
creditors,  she  must  show  that  it  is  hers. 
The  burden  of  proof  is  upon  her,  and 
the  evidence  must  be  clear  and  satis- 
factory. Kingsbury  v.  Davidson,  112  Pa. 
St.  383. 


46  LAW    OF    EVIDENCE.  [PART    1. 

cerned,  the  question,  which  of  two  persons  is  to  be  presumed  the 
survivor,  where  both  perished  in  the  same  calaynity,  but  the  cir- 
cumstances of  their  deaths  are  unknown,  has  been  considered  in 
the  Roman  law,  and  in  several  other  codes;  but  in  the  common 
law,  no  rule  on  the  subject  has  been  laid  down.  By  the  Roman 
law,  if  it  were  the  case  of  a  father  and  son,  perishing-  together  in 
the  same  shipwreck  or  battle,  and  the  son  was  under  the  age  of 
puberty,  it  was  presumed  that  he  died  first,  but  if  above  that  age, 
that  he  was  the  survivor;  upon  the  principle,  that  in  the  former 
case  the  elder  is  generally  the  more  robust,  and,  in  the  latter, 
the  younger.  ^  The  French  code  has  regard  to  the  ages  of  fifteen 
and  sixty;  presuming  that  of  those  under  the  former  age  the 
eldest  survived;  and  that  of  those  above  the  latter  age  the 
youngest  survived.  If  the  parties  were  between  those  ages,  but 
of  different  sexes,  the  male  is  presumed  to  have  survived;  if 
they  were  of  the  same  sex,  the  presumption  is  in  favor  of  the 
survivorship  of  the  younger,  as  opening  the  succession  in  the 
order  of  nature.^  The  same  rules  were  in  force  in  the  territory 
of  Orleans  at  the  time  of  its  cession  to  the  United  States,  and 
have  since  been  incorporated  into  the  code  of  Louisiana.'^ 

§  30.  Survivorship.  This  question  first  arose,  in  common-law 
courts,  upon  a  motion  for  a  mandamus^  in  the  case  of  General 
Stanwix,  who  perished,  together  with  his  second  wife,  and  his 
daughter  by  a  former  marriage,  on  the  passage  from  Dublin  to 
England;  the  vessel  in  which  they  sailed  having  never  been 
heard  from.  Hereupon  his  nephew  applied  for  letters  of  admin- 
istration, as  next  of  kin;  which  was  resisted  by  the  maternal 
uncle  of  the  daughter,  who  claimed  the  effects  upon  the  presump- 
tion of  the  Roman  law,  that  she  was  the  survivor.  But  this 
point  was  not  decided,  the  court  decreeing  for  the  nephew  upon 
another  ground ;  namely,  that  the  question  could  properly  be 
raised  only  upon  the  statute  of  distributions,  and  not  upon  an 
application  for  administration  by  one  clearly  entitled  to  admin- 

•  Dig.  lib.  34,  tit.  5  ;  De  rebus  dubiis,  1.  9,  §§  1,  3  ;  Id.  1.  16,  22,  23  ;  Menochius 
de  Presumpt.  lib.  1,  Queest.  x.  n.  8,  9.  This  rule,  however,  was  subject  to  some  excep- 
tions for  the  benefit  of  mothers,  patrons,  and  beneficiaries. 

-  Code  Civil,  §§  720,  721,  722;  Duranton,  Cours  de  Droit  Framjais,  tom.  vi.  pp.  39, 
42,  43,  48,  67,  69  ;  Rogron,  Code  Civil  Expli.  411,  412  ;  Toullier,  Droit  Civil  Fran- 
(jai.s,  tom.  iv.  pp.  70,  72,  73.  By  the  Mahometan  law  of  India,  when  relatives  thus 
perish  together,  "it  is  to  be  presumed  that  they  all  died  at  the  same  moment,  and  the 
property  of  each  shall  pass  to  his  living  heirs,  without  any  portion  of  it  vesting  in  his 
companions  in  misfortune."  See  Baillie's  Moohummudan  Law  of  Inheritance,  172. 
Such  also  was  the  rule  of  the  ancient  Danish  law.  "  Filins  in  communione  cum  patre 
et  matre  denatus,  pro  non  nato  habetur."     Ancher,  Lex  Cimbrica,  lib.  1,  c.  9,  p.  21. 

^  Civil  Cotle  of  Louisiana,  art.  930-933  ;  Digest  of  the  Civil  Laws  of  the  Territory 
of  Orleans,  art.  60-63. 


CHAP.    ly.]  OF    PRESUMPTIVE    EVIDENCE.  47 

ister  by  consanguinity.^  The  point  was  afterwards  raised  in 
chancery,  where  the  case  was,  that  the  father  had  bequeathed 
legacies  to  such  of  his  children  as  should  be  living  at  the  time  of 
his  death;  and  he  having  perished,  together  with  one  of  the 
legatees,  by  the  foundering  of  a  vessel  on  a  voyage  from  India  to 
England,  the  question  was,  whether  the  legacy  was  lapsed  by  the 
death  of  the  son  in  the  lifetime  of  the  father.  The  Master  of 
the  Rolls  refused  to  decide  the  question  by  presumption,  and 
directed  an  issue,  to  try  the  fact  by  a  jury.^  But  the  Prerogative 
Court  adopts  the  presumption,  that  both  perished  together,  and 
that  therefore  neither  could  transmit  rights  to  the  other. ^  In 
the  absence  of  all  evidence  of  the  particular  circumstances  of  the 
calamity,  probably  this  rule  will  be  found  the  safest  and  most 
convenient;*  but  if  any  circumstances  of  the  death  of  either  party 
can  be  proved,  there  can  be  no  inconvenience  in  submitting  the 
question  to  a  jury,  to  whose  province  it  peculiarly  belongs,  (a) 

^  Reg.  V.  Dr.  Hay,  1  W.  Bl.  640.  The  matter  was  afterwards  compromised,  upon 
the  recommendation  of  Lord  IManstiehl,  who  said  he  knew  of  no  legal  jirinciple  on  which 
he  could  decide  it.     See  2  Phillim.  2iJS,  in  n,  ;  Fearne's  Posth.  Works,  3S. 

2  Mason  v.  Mason,  1  Meriv.  308. 

3  Wright  V.  Netherwood,  2  Snlk.  593,  n.  (a)  by  Evans;  more  fully  reported  under 
the  name  of  Wright  v.  Sarmuda,  2  Phillim.  266-277,  n.  (c)  ;  Taylor  v.  Diplock,  2 
Phillim.  261,  277,^  280  ;  Selwyn's  Case,  3  Hagg.  Eecl.  748  ;  In  the  Goods  of  Murray, 
1  Curt.  596  ;  Satterthwaite  v.  Powell,  1  Curt.  705.  See  also  2  Kent's  Comm.  435, 
436  (4th  ed.),  n.  (b).  In  the  brief  note  of  Colvin  v.  H.  M.  Procurator-Gen.,  1  Hagg. 
Eccl.  92,  where  the  husband,  wife,  and  infant  child  (if  any)  perished  together,  the 
court  seem  to  have  held,  that  the  prima  fade  presumption  of  law  was  that  the  hus- 
band survived.  But  the  point  was  not  much  moved.  It  was  also  raised,  but  not 
disposed  of,  in  Moehring  v.  Mitchell,  1  Barb.  Ch.  264.  The  subject  of  presumed 
survivorship  is  fully  treated  by  Mr.  Burge,  in  his  commentaries  on  Colonial  and  For- 
eign Laws,  vol.  iv.  pp.  11-29.  In  Chancery  it  has  recently  been  held,  that  a  presump- 
tion of  priority  of  death  might  be  raised  from  the  comparative  age,  health,  and  .strength 
of  the  parties  ;  and,  therefore,  where  two  brothers  perished  by  shipwreck,  the  circum- 
stances being  wholly  unknown,  the  elder  being  the  master  and  the  younger  the  second 
mate  of  the  ship,  it  was  presumed  that  the  latter  died  first.  Sillick  v.  Booth,  1  Y.  & 
C.  NewCas.  117. 

*  It  was  so  held  in  Coye  v.  Leach,  8  Mete.  371.  And  see  Mceliring  v.  Mitchell,  1 
Barb.  Ch.  264. 

{a)  This  presumption  has  been  much  Catherine,   Frederick,   and    Alfred.     Jlrs. 

discussed  in  several  English  and  American  Underwood  executed  a  similar  will  in  favor 

cases.     The  leading  case  among  the  mod-  of  her  husband   and  children.      About  a 

em  cases  is  Underwood  v.  Wing,  which  week  aftei'  these  wills  were  executed,  Mr. 

was  heard  before  the  JIaster  of  the  Rolls  and  Mrs.  Underwood  and  their  three  chil- 

in  1854,  19  Beav.  459,  and  on  appeal  be-  dren  (being  the  only  children^  took  )ias- 

fore  the  Lord  Chancellor,  Lord  Cranworth,  sage  on  board  a  ship.     The  ship  was  lost 

in    1855,  4  De   G.   M.  &  G.  633,  and  an-  on  the  voyage,  and  they  were  all  drowned; 

other  branch  of  the  same  case  in   which  one  man  alone  escaped  from  the  wreck,  a 

the  same  point  arose,  Wing  u.  Angrave.  seaman,  who  was  examined  in  the  cause, 

8  H.  L.  Cas.  183.  and  who   testified   that,   on   the  morning 

The  facts  were  these  :  Mr.  Underwood  of  October  19,  the  vessel  went  upon  her 

made  a  will,  of  which   the  material  part  starboard  beam  ends  ;  that  whilst  the  ship 

in  this  case  was  a  devise  in  trust  for  his  was   in   this   position,    the  sea   making  a 

wife  in  fee,  and  in  case  she  should  die  in  clean  breach  over  her,  Mr.  and  Mrs.  Un- 

his  lifetime,  in  trust  for  his  three  children,  derwood  and  the  two  boys  were  drawn  out 


48 


LAW    OF    EVIDENCE. 


[part  I. 


§  31.   Presumptions  to  the  law  of  nations.     Conclusive  presump- 
tions of  law  are  not  unknown  to  the  law  of  nations.      Thus,  if  a 


of  one  of  the  ports  of  the  ship  ;  that  when 
lie  last  saw  them,  which  was  a  few  min- 
utes afterwards,  they  were  all  staudinj^  to- 
gether on  the  side  of  the  ship,  the  husband 
with  his  wife  in  liis  arms,  and  tlie  two 
boys  clinging  to  their  mother,  all  clasped 
together;  that  whilst  in  this  position  a 
sea  swept  them  otf,  and  he  saw  them  no 
more,  and  his  belief  was  that  tliey  all 
went  down  together,  instantly.  He  also 
described  the  manner  of  the  death  of  the 
daughter,  Catherine,  whom  he  assisted  to 
lash  to  a  spar  in  hope  of  saving  her  life, 
and  it  is  certain  that  she  survived  her 
father  and  mother  and  brothers  for  some 
little  time,  probably  about  half  an  hour. 
There  was  considerable  expert  testimony 
of  medical  men  upon  the  i)robabilities  of 
survivorship  based  upon  age,  sex,  and 
physical  constitution.  In  the  report  of 
the  case  in  4  De  G.  M.  &  G.  p.  657,  the 
ojiinion  of  Mr.  Justice  Wightman  &  Baron 
Martin  on  tliis  point  is  as  follows  :  "  The 
question  of  survivorship  is  the  subject  of 
evidence  to  be  produced  before  the  tribu- 
nal which  is  to  decide  upon  it,  and  which 
is  to  determine  it  as  any  other  fact ;  "  and 
proceeds  to  say  that  scientific  opinion  on 
the  probabilities  is  mere  guess-work,  and 
not  evidence  for  a  court  to  act  upon.  In 
the  report  of  the  case  in  8  H.  L.  Gas.  198, 
Lord  Campbell  says :  "  In  our  jurispru- 
dence, when  the  (juestion  arises  which  of 
two  individuals  who  perished  by  the  same 
calamity  survived  the  other,  there  is  no 
inference  of  law  from  age  or  sex,  and  the 
question  is  to  be  decided  upon  all  the  cir- 
cumstances of  the  case."  He  then  says 
there  was  evidence  founded  upon  the  age, 
sex,  and  state  of  health  of  the  husband 
and  wife,  which  might  have  justified  a 
finding  that  the  husband  was  the  sur- 
vivor, but  it  was  counterbalanced  by  the 
evidence  that  they  perished  at  the  same 
time,  so  that  there  was  not  such  a  clear 
preponderance  of  evidence  in  favor  of  the 
survivorship  of  the  husband  as  would  jus- 
tify the  reversal  of  the  finding  of  the 
lower  court. 

The  rule  as  now  established  by  the  Eng- 
lish and  American  cases  is,  that  where  it 
is  j)roved  that  two  or  more  persons  perished 
in  the  same  calamity,  there  is  no  presump- 
tion of  law  that  one  survived  the  others, 
or  that  all  perished  at  the  same  time  ;  the 
burden  of  proving  that  one  survived  the 
others,  or  that  all  perished  simultaneously, 
is  on  the  person  who  asserts  such  to  be  the 
fact.  If  death  by  the  same  calamity  is 
all  that  is  proved,  the  person  who  asserts 


the  survivorship  must  fail,  but  it  seems  if 
there  is  evidence  arising  from  the  age,  sex, 
or  physical  condition  of  the  ]iersons  who 
perished,  from  which  a  reasonable  inference 
of  survivorship  may  be  drawn,  such  infer- 
ential ])roof  may  suffice.  In  any  case  if 
there  is  evidence  arising  from  the  nature 
of  the  accident,  and  the  manner  of  death 
of  the  parties,  which  tends  to  show  that 
some  one  did  in  fact  survive  the  others,  the 
whole  question  is  one  of  fact,  to  be  decided 
in  each  case  by  the  jury  befoie  whom  the 
cause  is  brought.  Underwood  v.  Wing, 
19  Beav.  459  ;  4  De  G.  M.  &  G.  633  ;  Wing 
V.  Angrave,  8  H.  L.  Cas.  183  ;  Wollaston 
V.  Berkeley,  L.  R.  2  Ch.  Div.  213;  Re 
Phene's  Trusts,  L.  R.  5  Ch.  139  ;  He  Mur- 
ray, 1  Curt.  596  ;  Taylor  v.  Diplock,  2 
Phil.  Ecc.  R.  261  ;  Smith  v.  Croom,  7  Fla. 
81  ;  Newell  v.  Nichols,  12  Hun  (N.  Y. ), 
604  ;  s.  c.  75  N.  Y.  78  ;  Pell  v.  Ball, 
1  Chev.  (S.  C.)  Eq.  99  ;  Kobinson  v.  Gal- 
lier,  2  Wood,  C.  C.  178  ;  Stinde  v.  Ridg- 
way,  55  How.  (N.  Y.)  Pract.  301  ;  Stinde 
V.  Goodrich,  3  Redf.  (N.  Y. )  Suit.  87;  Mat- 
ter of  Ridgway,  4  Id.  226  ;  Kansas,  &c., 
R.  R.  Co.  V.  Miller,  2  Col.  Terr.  442. 
The  rule  that  there  is  no  presumption  as  to 
survivorship  of  those  who  perish  in  a  com- 
mon disaster,  but  that  it  is  incumbent  on 
the  party  who  alleges  survivorship  as  a  link 
in  his  title  to  prove  such  survivorship  was 
followed  in  the  case  of  the  will  of  Abram 
Ehle,  73  Wis.  445,  the  court  citing  Newell 
V.  Nichols,  75  N.  Y.  78,  and  Fuller  v.  Lin- 
zee,  135  Mass.  468.  The  court  in  the  case 
of  the  will  of  Abram  Ehle  goes  very 
minutely  into  the  evidence  of  the  disaster 
which  was  the  destruction  of  a  dwelling- 
house  by  fire,  and  arrives  at  sufficient  evi- 
dence from  the  location  of  the  rooms,  the 
location  of  the  bodies  when  found,  the 
clothing  upon  them,  the  noises  heard  by 
witnesses  during  the  conflagration,  and 
other  facts,  to  find  that  one  })erson  did,  in 
fact,  survive  the  others,  treating  the  ques- 
tion as  a  question  of  fact  upon  all  the  evi- 
dence, and  not  as  a  presumption  either  of 
law  or  fact.  The  general  rule  was  affirmed 
in  a  recent  case  in  j\Iaine,  the  court  hold- 
ing that  in  the  absence  of  evidence  from 
which  the  contrary  may  be  inferred,  all 
may  be  considered  to  have  perished  at  the 
same  moment ;  not  because  that  fact  is  pre- 
sumed, but  because  from  failure  to  prove 
the  contrary  by  those  asserting  it,  property 
rights  must  necessarily  be  settled  on  that 
theory.  In  that  case  the  father  was  a  man 
forty  years  of  age,  and  his  minor  chihlren 
under  ten.     The  last  known  of  either  was 


CHAP.    IV.]  OF    PRESUMPTIVE    EVIDENCE.  49 

neutral  vessel  he  found  carrying*  desjjatchcs  of  the  enemy  be- 
tween different  jjarts  of  the  enemy's  dominions,  their  elfect  is 
presumed  to  be  hostile.^  The  spoliation  of  papers,  by  the  cap- 
tured party,  has  been  regarded,  in  all  the  States  of  Continental 
Europe,  as  conclusive  proof  of  guilt;  but,  in  England  and  Amer- 
ica, it  is  open  to  explanation,  unless  the  cause  labors  under  heavy 
suspicions,  or  there  is  a  vehement  presumption  of  bad  faith  or 
gross  prevarication. 2 

§  32.  Based  on  expediency.  In  these  cases  of  conclusive  pre- 
sumption, the  rule  of  law  merely  attaches  itself  to  the  circum- 
stances, when  proved ;  it  is  not  deduced  from  them.  It  is  not  a 
rule  of  inference  from  testimony ;  but  a  rule  of  protection,  as 
expedient,  and  for  the  general  good.  It  does  not,  for  example, 
assume  that  all  landlords  have  good  titles ;  but  that  it  will  be  a 
public  and  general  inconvenience  to  suffer  tenants  to  dispute 
them.  Neither  does  it  assume,  that  all  averments  and  recitals 
in  deeds  and  records  are  true;-  but  that  it  will  be  mischievous,  if 
parties  are  permitted  to  deny  them.  It  does  not  assume  that  all 
simple  contract  debts,  of  six  years'  standing,  are  paid,  nor  that 
every  man,  quietly  occupying  land  twenty  years  as  his  own,  has  a 
valid  title  by  grant;  but  it  deems  it  expedient  that  claims  op- 
posed by  such  evidence  as  the  lapse  of  those  periods  affords, 
should  not  be  countenanced,  and  that  society  is  more  benefited 
by  a  refusal  to  entertain  such  claims,  than  by  suffering  them  to 
be  made  good  by  proof.  In  fine,  it  does  not  assume  the  impos- 
sibility of  things  which  are  possible;  on  the  contrary,  it  is 
founded,  not  only  on  the  possibility  of  their  existence,  but  on 
their  occasional  occurrence ;  and  it  is  against  the  mischiefs  of 
their  occurrence  that  it  interposes  its  protecting  jirohibition.^ 

§  33.  Disputable  presumptions.  The  SECOND  CLASS  of  presump- 
tions of  law,  answering  to  the  presumptiones  juris  of  the  Roman 
law,  which  may  always  be  overcome  by  opposing  proof,*  consists 
of  those  termed  disputable  presumptions.  These,  as  well  as  the 
former,  are  the  result  of  the  general  experience  of  a  connection 
between  certain  facts,  or  things,  the  one  being  usually  found  to 
be  the  com])anion  or  the  effect  of  the  other.     The  connection, 

1  The  Atalantn,  6  Ttob.  Adin.  440. 

2  The  Pizarro,  2  Wheat.  227,  241,  242,  n.  (e)  ;  The  Hunter,  1  Dods.  Adm.  480,  486. 
«  See  6  Law  Macr.  345,  355,  356. 

*  Hciimec.  ad  Pand.  pars  iv.  §  124. 

upon  their  sailiiif;;  from  Scotland.     No  evi-  their  father,  and  therefore  he  was  held  to 

dence  gave  any  light  upon  the  particular  have  died  without  issue.    Johnson  v.  Meri- 

perils    they   encountered   at   death.     Tiie  thew,  80  Me.  116. 
children  were  not  proved  to  have  survived 

VOL.   I.  —  4 


50  LAW    OF    EVIDENCE,  [PART   I. 

however,  in  this  class,  is  not  so  intimate,  nor  so  nearly  universal, 
as  to  render  it  expedient  that  it  should  be  absolutely  and  im- 
peratively presumed  to  exist  in  every  case,  all  evidence  to  the 
contrary  being  rejected;  but  3^et  it  is  so  general,  and  so  nearly 
universal,  that  the  law  itself,  without  the  aid  of  a  jury,  infers 
the  one  fact  from  the  proved  existence  of  the  other,  in  the  ab- 
sence of  all  opposing  evidence.  In  this  mode,  the  law  defines 
the  nature  and  amount  of  the  evidence  which  it  deems  sufficient  to 
establish  a  prima  facie  case,  and  to  throw  the  burden  of  proof  on 
the  other  party ;  and,  if  no  opposing  evidence  is  offered,  the  jury 
are  bound  to  find  in  favor  of  the  presumption.  A  contrary  ver- 
dict would  he  liable  to  be  set  aside,  as  being  against  evidence,  (b) 
§  34.  Based  on  expediency.  The  rules  in  this  class  of  pre- 
sumption, as  in  the  former,  have  been  adopted  by  common  con- 
sent, from  motives  of  public  policy,  and  for  the  promotion  of  the 
general  good;  yet  not,  as  in  the  former  class,  forbidding  all 
further  evidence ;  but  only  excusing  or  dispensing  with  it,  till 
some  proof  is  given  on  the  other  side  to  rebut  the  presumption 
thus  raised.  Thus,  as  men  do  not  generally  violate  the  penal 
code,  the  law  presumes  every  man  innocent ;  but  some  men  do 
trangress  it,  and  therefore  evidence  is  received  to  repel  this  pre- 
sumption, (a)     This  legal  presumption  of  innocence  is  to  be  re- 

(6)  Crane  v.    Moms,    6  Pet.    (U.  S.)  prisoner,  must  be  proved,  and  there  is  no 

598  ;    Cora.    v.    Hogan,     113    Mass.     7  ;  presumption  of  her   innocence.     State   v. 

United     States    v.      Wiggins,     14      Pet.  Wells,   48   Iowa,  671  ;    West  v.   State,   1 

(U.  S.)    334.  Wis.  209;  Com.  v.  Whittaker,  131   Mass. 

(a)  This  presumption  is  rather  a  general  224  ;  People  v.  Roderigas,  49  Cal.  9.     In 

positive  rule  of  law  regulating  the  intro-  accordance  with  the  general  form  of  the 

duction  of  evidence  in  all  cases,  i.  e.,  in  rule,  it  was  held  that  every  man  is  pre- 

civil  and   criminal   cases   the   party  who  sumed  to  be  innocent,  in  Edwards  v.  State, 

desires  any  court  to  give  judgment  as  to  21  Ark.  512  ;  Case  v.  Case,  17  Cal.  598  ; 

any  legal  right  or  liability  dependent  on  Goggans  v.  Monroe,  31  Ca.  331  ;  McEwen 

the   existence   or    non-e.xistence    of    facts  v.    Portland,  1  Oreg.  300  ;  Harrington  v. 

which  he  asserts  or  denies  to  exist,  must  State,  19  Ohio,   264. 

prove  that  those  facts  do  or  do  not  exist.  Another  maxim  of  the  law  which  is  of- 

Stephen,   Dig.  Evid.  art.   93.     Therefore,  ten  called  by  the  courts  a  conclusive  pre- 

if  the  State  desires  a  court  to  pronounce  a  sumption,  is  that  every  man  is  conclusively 

person  liable  to  a  certain  punishment,  it  presumed  to  know  the  law,  or,  in  better 

must  give  evidence  to  prove  the  facts  con-  form,  ignorance  of  the  law  excuses  no  one. 

stituting  his   guilt   beyond    a   reasonable  The  latter  form  of  the  rule  shows  it  to  be 

doubt,  just  as,  in  a  civil  case,  the  party  not  a  presumption,  but  a  positive  rule  of 

asking  a  decision  must  prove  his  case  by  a  law,  based  on  the  inexpediency  of  admit- 

preponderance  of  the  evidence.     Compare  ting  in  criminal  trials  the  vague  excuse  of 

Wharton,  Evid.  §  1245.     That  this  is  the  ignorance  of  the  law.     Evidence  to  prove 

true  form  of  the  rule,  and  that  it  is  not  such  an  excuse,  therefore,  is  inadmissible, 

true  that  there  is  always  a  presumption  of  United  States  v.  Anthony,  11  Blatchf.  C. 

innocence,  is  shown  by  the   fact  that  in  C.  200  ;  Com.  v.  Bagley,  7  Pick.  (Mass.), 

some  cases  no  such  presumption  exists  ;  279  ;  Brent  v.  State,  43  Ala.  297  ;  Rex  ?j. 

e.  (J.  on  thetrialof  an  indictment  forseduct-  Esop,  7  C.  &  P.  456  ;  Barronet's  Case,  1  E. 

ing  a  woman,  her  previous  chastity,  being  a  &  B.  1.     But  the  law  as  it  exists  is  the  law 

fact  necessary  to  complete  the  guilt  of  the  which  every  one  must  know.     Therefore, 


<^nAP.    IV.]  OF   PRESUMPTIVE   EVIDENCE.  51 

gardcd  by  the  jury,  in  every  case,  as  matter  of  evidence,  to  the 
benefit  of  which  the  party  is  entitled.  And  where  a  criminal 
charge  is  to  be  proved  by  circumstantial  evidence,  the  proof  ought 
to  be  not  only  consistent  with  the  prisoner's  guilt,  but  incon- 
sistent with  any  other  rational  conclusion. ^  (b)  On  the  other 
hand,  as  men  seldom  do  unlawful  acts  with  innocent  intentions, 
the  law  presumes  every  act,  in  itself  unlawful,  to  have  been 
criminally  intended,  until  the  contrary  appears,  {c)  Thus,  on  a 
charge  of  murder,  malice  is  presumed  from  the  fact  of  killing, 
unaccompanied  with  circumstances  of  extenuation;  and  the  bur- 
den of  disproving  the  malice  is  thrown  upon  the  accused. ^  The 
same  presumption  arises  in  civil  actions,  where  the  act  com- 
plained of  was  unlawful. 3     So,  also,  as  men  generally  own  the 

1  Hoilf,'e's  Case,  2  Lewin,  Cr.  Cas.  227,  per  Alderson,  B. 

2  Foster's  Crown  Law,  255  ;  Hex  v.  Farringtoii,  Piuss.  &  Rv.  207.  This  point  was 
re-examined  and  discussed,  with  r;reat  ability  and  research,  in  Yoriv's  Case,  9  J\Ietc.  93, 
JD  which  a  majority  of  the  learned  judges  affirmed  the  rule  as  stated  in  the  text. 
Wilde,  J.,  however,  sti'ongly  dissented  ;  maintaining  with  great  force  of  reason,  that 
the  rule  was  founded  in  a  state  of  society  no  longer  existing  ;  that  it  was  inconsistent 
with  settled  principles  of  criminal  law  ;  and  that  it  was  not  supported  by  the  weight  of 
authority.  He  was  of  ojiinion  that  the  following  conclusions  were  maintained  on  sound 
principles  of  law  and  manifest  justice:  1.  That  when  the  facts  and  circumstances 
accompanying  a  homicide  are  given  in  evidence,  the  question  whether  the  crime  is 
murder  or  manslaughter  is  to  he  decided  upon  the  evidence,  and  not  upon  any  jjresump- 
tion  from  the  mere  act  of  killing.  2.  That,  if  there  be  any  such  presumption,  it  is  a 
presumption  of  fact ;  and  if  the  evidence  leads  to  a  reasonable  doubt  whether  the  pre- 
sumption be  well  founded,  that  doubt  will  avail  in  favor  of  the  prisoner.  3.  That  the 
burden  of  proof,  in  every  criminal  case,  is  on  the  government,  to  prove  all  the  material 
allegations  in  the  indictment  ;  and  if,  on  the  whole  evidence,  the  jury  have  a  reasona- 
ble doubt  whether  the  defendant  is  guilty  of  the  crime  charged,  they  are  bound  to 
acquit  him. 

8  In  Bromage  v.  Prosser,  4  B.  &  C.  247,  255,  256,  which  was  an  action  for  words 
spoken  of  the  plaintiffs,  in  their  business  and  trade  of  hankers,  the  law  of  imjilied  or 
legal  malice,  as  distinguished  from  malice  in  fact,  was  clearly  expounded  by  Mr.  Jus- 
tice Bayley,  in  the  following  terms  :  "  Malice,  in  the  common  acceptation,  "means  ill- 
will  against  a  person,  but  in  its  legal  sense,  it  means  a  wrongful  act,  done  intentionally 
without  just  cause  or  excuse.  If  I  give  a  jierfect  stranger  a  blow  likely  to  produce 
death,  I  do  it  of  malice,  because  I  do  it  intentionally  and  without  just  cause  or  ex- 
cuse. If  I  maim  cattle,  without  knowing  whose  they  are,  if  I  poison  a  fishery,  with- 
out knowing  the  owner,  I  do  it  of  malice,  because  it  is  a  wrongful  act,  and  done 
intentionally.  If  I  am  arraigned  of  felony,  and  wilfully  stand  mute,  I  am  said  to  do 
it  of  malice,  because  it  is  intentional,  and  without  just  cause  or  excuse.  Russell  on 
Crimes,  614,  n.  1.     And  if  I  traduce  a  man,  whether  I  know  him  or  not,  and  whether 

if  one  act  under  a  law  which  is  afterwards  (b)  See  also  ante,  §  13  a,  and  post,  vol. 

declared  to  have  been  unconstitutional,  he  iii.  §  29. 

may  avail  himself  of  the  law  to  protect  (V)  Taylor     (Ev.    §     103)    substitutes 

him,  for  it  cannot  be  contended  that  he  "wrongfully"    instead   of    "criminally" 

was  obliged  not  only  to  know  the  law,  but  with   great   proj)riety,  as   every  unlawful 

to   know  whether   the   law  was  constitu-  act  is  by  no  means  criminal.     Where  the 

tional.     Bvcnt  V.  ^tate,  supra.     Nor  is  any  act  itself  is  of  an  indilierent  nature,  then 

one  bound  to  know  the  law  of  any  State  or  the  intent  must  be  proved.     But  where  it 

country  except  his  own.     Kex  v.  Esop,  7  is  in  itself  unlawful,   the  intent   is  pre- 

C.  &  P.  456  ;  Finch  v.  Mansfield,  97  Mass.  sumed,  Kex  v.  Woodfall,  5  Burr.  2667,  the 

89,  92.  act  being  of  such  a  nature  as  to  show  the 

intent.     Rex  v.  Harvey,  2  B.  &  C.  257. 


52  LAW    OF    EVIDENCE.  [PART    I. 

personal  property  they  possess,  proof  of  possession  is  presump- 
tive proof  of  ownership,  (d)  But  possession  of  the  fruits  of  crime 
recently  after  its  commission,  is  prima  facie  evidence  of  guilty 
possession;  and,  if  unexplained  either  by  direct  evidence,  or  by 
the  attending  circumstances,  or  by  the  character  and  habits  of 
life  of  the  possessor,  or  otherwise,  it  is  taken  as  conclusive.^ 
This  rule  of  presumption  is  not  confined  to  the  case  of  theft,  but 
is  applied  to  all  cases  of  crime,  even  the  highest  and  most  penal. 
Thus,  upon  an  indictment  for  arson,  proof  that  property  which 

I  intend  to  do  him  an  injury  or  not,  I  apprehend  tlie  law  considers  it  as  done  of 
malice,  because  it  is  wrongful  and  intentional.  It  equally  works  an  injury,  whether 
I  meant  to  produce  an  injury  or  not,  and  if  I  had  no  legal  excuse  for  the  slander,  why 
is  he  not  to  have  a  remedy  against  me  for  the  injuiy  it  produces  ?  And  I  ajipiehend 
the  law  recognizes  the  distinction  between  these  two  descriptions  of  malice,  malice  in 
fact  and  malice  in  law,  in  actions  of  slander.  In  an  ordinary  action  for  words,  it  is 
sufficient  to  charge  that  the  defendant  spoke  them  falsel}' ;  it  is  not  necessary  to  state 
that  they  were  sjjoken  maliciously.  This  is  so  laid  down  in  Styles,  392,  and  was  ad- 
judged upon  error  in  JMercer  v.  Sparks,  Owen,  51  ;  Noy,  35.  The  objection  there  was, 
that  the  words  were  not  charged  to  have  been  spoken  maliciously,  but  the  court  an- 
swered that  the  words  were  themselves  malicious  and  slanderous,  and  therefore  the 
judgment  was  affirmed.  But  in  actions  for  such  slander,  as  is  prima  facie  excusable 
on  account  of  the  cause  of  speaking  or  writing  it,  as  in  the  case  of  servants'  characters, 
confidential  advice,  or  communication  to  persons  who  ask  it,  or  have  a  right  to  expect 
it,  malice  in  fact  must  be  proved  by  the  plaintiff ;  and  in  Edmondson  v.  Stevenson, 
Bull.  N.  P.  8,  Lord  Mansfield  takes  the  distinction  between  these  and  ordinary  actions 
of  slander." 

4  Kex  V.  ,  2  C.  &  P.  459  ;  Regina  v.  Coote,  1  Armst.  Macartn.  &  Ogle,  337  ; 

State  V.  Adams,  1  Hayw.  463.  Wills  on  Circumstantial  Evidence,  67.  Where  the 
things  stolen  are  such  as  do  not  pass  from  hand  to  hand  (e.  g.  the  ends  of  unfinished 
woollen  clothes),  there  being  found  in  the  prisoner's  possession,  two  months  after  they 
were  stolen,  is  sufficient  to  call  for  an  explanation  from  him  how  he  came  by  them,  and 
to  be  considered  by  the  jury.  Rex  v.  Partridge,  7  C.  &  P.  551.  "  Furtum  prgesumitur 
commissum  ab  illo,  ])enes  ijuem  res  furata  inventa  fuerit,  adeo  ut  si  non  docuerit  a  quo 
rem  habuerit,  juste,  ex  ilia  inventione,  poterit  subjici  tormentis."  Mascard.  De  Probat. 
vol.  ii.,  Concl.  834  ;  Menoch.  De  Praesumpt.  liv.  5,  Praesnmpt.  31. 

(d)  Armory  v.  Delamirie,  1  Stra.  505  ;  ness,  does  not    raise   the    presumption  of 

Magee  v.  Scott,  9  Cush.  (Mass.)  150  ;  Fish  ownership.     Succession    of    Boisbanc,   32 

V.  Skut,  21  Barb.  (N.  Y.)  333  ;   Millay  v.  La.  Ann.  109. 

Butts,  35  Me.  139  ;  Linscott  v.  Trask,  Id.  This  presumption  is  one  of  slight  efTect, 
150  ;  Vining  v.  Baker,  53  Id.  544.  So  as  and  may  perhaps  be  ranked  as  circumstan- 
to  real  property.  Matters  v.  Brown,  1  H.  tial  evidence  of  ownership,  rather  than  as 
&  C.  6S6.  This  presumption  of  ownership  a  presumption  of  law.  Rawley  v.  Brown, 
from  possession  arises  only  when  the  char-  supra  ;  Vining  v.  Baker,  53  Me.  544. 
acter  of  the  possession  is  wholly  unex-  In  accordance  with  the  general  rule 
plained  ;  when  the  possession  and  nothing  that  possession  of  personal  propert}'  is 
more  is  shown.  If  the  evidence  of  pos-  prima  facie  evidence  of  title,  besides  the 
session  is  shown  to  be  equally  consistent  above  cases,  ai'e,  Succession  of  Alexander, 
with  an  outstanding  ownership  in  a  third  18  La.  Ann.  337  ;  Stoddard  v.  Burton,  41 
person,  as  with  a  title  in  the  one  having  Iowa,  582  ;  Fish  v.  Skut,  21  Barb.  (N.  Y.) 
the  possession,  the  presumption  is  re-  333  ;  Wilber  v.  Sisson,  53  Id.  262  ;  An- 
butted.  Rawley  v.  Brown,  71  N.  Y.  85  ;  drews  v.  Beck,  23  Tex.  455. 
New  York,  &c.  R.  R.  Co.  v.  Haws,  56  The  proof  of  possession  of  real  estate  is 
N.  Y.  175.  So,  in  general,  jiossession  by  prima  facie  evidence  of  title.  Smith  v. 
a  broker,  factor,  or  agent  of  property  such  Lorrillard,  10  .Johns.  (N.  Y.)  338  ;  Jack- 
as  he  is  in  the  habit  of  having  in  his  pos-  son  v.  Denn,  5  Cow.  (N.  Y.)  200. 
session  in  the  regular  course  of  his  busi- 


CHAP.    IV.] 


OF   PRESUMPTIVE   EVIDENCE. 


63 


was  in  the  house  at  the  time  it  was  burnt,  was  soon  afterwards 
found  in  the  possession  of  the  prisoner,  was  held  to  raise  a  prob- 
able presumption  that  he  was  present,  and  concerned  in  the 
offence.^  The  like  presumption  is  raised  in  the  case  of  murder, 
accompanied  by  robbery;*^  and  in  the  case  of  the  possession  of 
an  unusual  quantity  of  counterfeit  money.'  (e) 

§  35.  Innocence.  This  presumption  of  innocence  is  so  strong, 
that  even  where  the  guilt  can  be  established  only  by  provinj^  a 
negative,  that  negative  must,   in  most  cases,  be  proved  by  the 

6  Rickman's  Case,  2  East,  P.  C.  1035. 
^  Wills  on  Ciicumst.  Evitl.  72. 

7  Rex  V.  Fuller  et  al.,  Kuss.  &  Ky.  308. 


(e)  The  weight  of  authority  seems  to 
hold  that  there  is  no  presumption  of  law, 
that  a  person's  possession  of  the  fruits  of 
crime,  though  recent,  exclusive,  and  nn- 
explained,  is  guilty  possession,  but  that 
this  fact  is  pri'ina  facie  evidence  of  the 
prisoner's  guilt,  which  the  jury  may  con- 
sider, along  with  the  other  facts  of  the 
case,  in  arriving  at  their  veidict.  This  is, 
theref'oie,  rather  a  presumption  of  fact,  or 
circumstantial  evidence,  and  is  governed 
by  the  rules  of  that  class  of  evidence. 
Com.  V.  McGorty,  114  Mass.  301  ;  State 
V.  Raymond,  46  Conn.  345  ;  State  v. 
Hodge,  50  N.  H.  510  ;  Ingalls  v.  State, 
48  Wis.  647  ;  Stokes  v.  State,  58  Miss. 
677  ;  Reg.  v.  Huglies,  14  Cox,  Cr.  Cas. 
223  ;  Reg.  v.  Harris,  8  Id.  333  ;  Keg.  v. 
Langmead,  9  Id.  464  ;  Hernandez  v. 
State,  9  Tex.  A  pp.  288  ;  Sahlingcr  v.  Peo- 
ple, 102  111.  241  ;  State  v.  Kimble,  14  Rep. 
434  ;  State  v.  Kelly,  11  N.  W.  Rep.  635; 
Henderson  v.  State,  13  Rep.  715  ;  State  v. 
Rights,  82  N.  C.  675. 

The  ([uestion  whether  the  possession  is 
of  such  a  kind,  and  so  recent,  as  to  give 
rise  to  a  |>lain  and  strong  inference  of  the 
guilt  of  the  possessor,  in  other  words, 
whether  the  possession  as  proved  is  legal 
prima  facie  evidence  of  guilt,  is  generally 
held  to  be  one  of  law  for  the  Court,  just  as 
most  questions  relating  to  the  admissi- 
bility of  evidence.  See  cases  supra.  In 
New  Hampshire,  however,  that  question, 
as  well  as  the  effect  of  the  evidence  when 
admitted,  is  left  to  the  jury.  State  v. 
Hodge,  50  N.  H.  510. 

The  two  points  principally  noticed  by 
the  Courts  in  deciding  on  the  admissibility 
are  :  — 

1.  Whether  the  possession  is  so  re- 
cent, that  under  all  the  circumstances  of 
the  case,  it  raises  a  strong  inference  that 
the  prisoner  obtained  the  goods  from  the 
owner.     On  this  point,  as  might  be  63- 


pected,  the  decisions  vary  greatly,  for  the 
time  is  only  one  element  in  the  case.  Six 
months  has  been  held  to  be  too  long  (Reg. 
V.  Harris,  8  Cox  Cr.  Cas.  333),  l)ut  two 
months,  with  circumstances  of  conceal- 
ment, not  too  long.  State  v.  Hennet,  2 
Const.  (S.  C.)  R.  692.  Cf.  States;.  Rights, 
82  N.  C.  675  ;  State  v.  Adams,  1  Hayw. 
463. 

2.  Whether  the  possession  is  so  exclu- 
sive as  to  raise  a  strong  inference  that  the 
prisoner  was  privy  to  the  fact  that  such 
goods  were  in  his  possession.  So,  if  the 
goods  are  found  in  an  open  shed,  or  barn, 
or  on  open  ground,  it  has  been  held  that 
evidence  of  such  possession  is  not  admis- 
sible. Rex  V.  Hughes,  11  Cox  Cr.  Cas. 
223  ;  M'Queen  v.  Great  Western  Ry.  Co. 
L.  R.  10  Q.  B.  569  ;  People  v.  Hurley,  8 
Pac.  C.  L.  J.  1134  ;  3  Crim.  L.  Mag.  440; 
Gablick  V.  People,  40  Mich.  292. 

Though  the  prevailing  rule  in  the 
modern  cases  is  to  consider  this  a  jnesumy)- 
tion  of  fact,  yet  in  State  v.  Kelly,  73  Mo. 
608,  it  is  said  that  this  is  a  presumption 
of  law,  and  not  a  mere  presumption  of 
fact,  to  be  weighed  with  other  evidence  in 
the  case.  The  prisoner  in  rebutting  this 
prima  facie  case,  need  only  introduce  evi- 
dence enough  to  raise  a  reasonable  doubt 
of  his  guilt.  Sahlinger  v.  People,  102  111. 
241;  State  v.  Richart,  57  Iowa,  245.  The 
same  fact  of  possession  may  also  lie  given  in 
evidence  as  a  circumstance  tending  to  jirove 
the  commission  of  other  ofl'ences,  e.  g. 
burglary,  receiving  stolen  projicrty,  arson, 
forgery,  &c.  Stuart  v.  People,  42  Mich. 
255  ;  State  v.  15ishop,  51  Vt.  287  ;  State 
V.  Snell,  46  Wis.  524;  Neubrandt  v.  State, 
9  N.  W.  Kep.  824  ;  Reg.  v.  Hughes,  14 
Cox  Cr.  Cas.  223  ;  People  v.  Mitchell,  55 
Cal.  236;  Com.  v.  Talbot,  2  Allen  (Mass.), 
161.  Cf.  People  v.  Ah  Sing,  3  Crim.  L. 
Mag.  115. 


54  LAW    OF    EVIDENCE.  [PART    t. 

j)arty  alleging  the  guilt;  though  the  general  rule  of  law  devolves 
the  burden  of  proof  on  the  party  holding  the  affirmative.  Thus, 
where  the  plaintiff  complained  that  the  defendants,  who  had 
chartered  his  ship,  had  put  on  board  an  article  highly  inflammable 
and  dangerous,  without  giving  notice  of  its  nature  to  the  master, 
or  others  in  charge  of  the  ship,  whereby  the  vessel  was  burnt; 
he  was  held  bound  to  prove  this  negative  averment.  ^  In  some 
cases,  the  presumption  of  innocence  has  been  deemed  sufficiently 
strong  to  overthrow  the  presumption  of  life.  Thus,  where  a 
woman,  twelve  months  after  her  husband  was  last  heard  of, 
married  a  second  husband,  by  whom  she  had  children;  it  was 
held,  that  the  Sessions,  in  a  question  upon  their  settlement, 
rightly  presumed  that  the  first  husband  was  dead  at  the  time  of 
the  second  marriage.  ^  (a) 

§  36.  Innocence.  An  exception  to  this  rule,  respecting  the 
presumption  of  innocence,   is  admitted  in  the  case  of  a  libel. 

1  William  v.  E.  Ind.  Co.,  3  East,  192  ;  Hull.  N.  P.  298.  So,  of  allegations  that  a 
party  had  not  taken  the  sacrament,  Kex  v.  Hiwkins,  10  East,  211;  had  not  complied 
with  the  act  of  uniformity,  &c.,  Powell  v.  Milburn,  3  Wils.  355,  366;  that  goods  were 
not  legally  imported,  Sis.sons  v.  Dixon,  5  B.  &  C.  758  ;  that  a  theatre  was  not  duly- 
licensed,  Hodwell  V.  Redge,  1  C.  &  P.  220. 

2  Hex  V.  Twyniiig,  2  B.  &  Aid.  385.  But  in  another  case,  where,  m  a  que.stion 
upon  the  derivative  settlement  of  the  second  wife,  it  was  proved  that  a  letter  had  beeu 
written  from  the  first  wife  from  Van  Diemen's  Land,  bearing  date  only  twenty-five 
days  prior  to  the  second  marriage,  it  was  held,  that  the  Sessions  did  right  in  presuming 
that  the  first  wife  was  living  at  the  time  of  the  second  marriage.  Kex  v.  Harborne, 
2  Ad.  &  El.  540.     See  also  post,  §  80. 

(a)  Quin   v.  State,  46  Ind.  459.     And  was  a  presumption  of  law  in  the  absence 

where  the  presumi)tioii  of  innocence  con-  of  evidence  to  the  contrary,  that  she  was 

flicts  with  the  presumption  of  the  continu-  alive  at  the  day  of  the  marriage  in  ques- 

ance  of  life,   the  latter  must  be  proved,  tion,  and  that  a  jury  would  be  warranted 

Murray  v.  Murray,  6  Oreg.  17  ;  Spears  v.  in  so  finding.     The  court  refused  to  so  in- 

Burton,  31  Miss.  547;  Lockhart  v.  White,  struct  the  jury,  but  instructed  them  that 

13    Texas,    102  ;    Sharp   v.    Johnson,    22  there  was  no  presumption   that   she  was 

Ark.  75  ;   Klein  v.  Landman,  29  Mo.  259.  alive   at   that   day,   but  that  it  must   be 

Legitimacy  is  to  be  presumed  till  the  con-  i)roved  as  a  fact  ;  that  if  there  was  any 

trary  is  shown.     Dinkins  v.   Samuel,   10  presumption,  it  was  that  the  marriage  was 

Eich.  (S.  C.)  66  ;   Strode  v.  McOowan,  2  legal.     On  exception  the  Supreme  Court 

Bush  (Ky.),  621  ;    Harrison  v.  South,  21  held  this  misleading,  as  being  in  effect  a 

Eng.  L.  &  E(i.  343  ;    Ward  v.  Dulaney,  23  ruling  that  the  presumption  of  innocence 

Miss.   410.      When  the   presumptions   of  destroys  the  presumption  of  the  continu- 

life  and  innocence  conflict,  it  is  a  (luestion  ance  of  life,  so  that  the  fact  that  the  first 

of  fact  for  the  jury  which  must  prevail,  wife  was  alive  a  month  before  the  second 

Yle«.  a.  Willshire,  L.  R.  6  Q.  B.  Div.  366.  marriage  was  not  to  be  considered  as  evi- 

Tlus  conflict  was  considered  in  a  recent  dence  that  she  was  living  at  the  time  of 

Massachusetts  case.     The  defendant   was  that  marriage,  the  true  rule  being  that  the 

indicted  for  polygamy.     His  defence  was  proof  of  the  existence  of  a  person,  within 

that  the  first  mannage  alleged  in  the  in-  a  reasonable  time  from  the  date  of  the  act 

dictraent  was  void  because  at  that  time  in  question,  is  a  fact  from  which  the  infer- 

he  had  a  wife  living.     The  proof  which  he  cnce  of  continued  existence  to  the  date  in 

gave  showed  that  the  first  wife  was  alive  ([uestion  may  be  drawn  by  the  jury,  in  the 

a  month  before  the  marriage  in  question,  absence  of  contradictory  proof.     Cora.  v. 

and  he  asked  the  court  to  rule  that  there  McGrath,  140  Mass.  296. 


CHAP.    IV.]  OP    PRESUMPTIVE    EVIDENCE.  •  65 

For  where  a  libel  is  sold  in  a  bookseller's  shop,  by  his  servant, 
in  the  ordinary  course  of  his  employment,  this  is  evidence  of  a 
guilty  publication  by  the  master;  though,  in  general,  an  authority 
to  commit  a  breach  of  the  law  is  not  to  be  presumed.  This  ex- 
ception is  founded  upon  public  policy,  lest  irresponsible  persons 
should  be  put  forward,  and  the  principal  and  real  offender  should 
esca])e.  Whether  such  evidence  is  conclusive  against  the  master, 
or  not,  the  books  arc  not  perfectly  agreed;  but  it  seems  con- 
ceded, that  the  want  of  privity  in  fact  by  the  master  is  not  suffi- 
cient to  excuse  him;  and  that  the  presumption  of  his  guilt  is  so 
strong  as  to  fall  but  little  short  of  conclusive  evidence.^  (c) 
Proof  that  the  libel  was  sold  in  violation  of  express  orders  from 
the  master  would  clearly  take  the  case  out  of  this  exception,  by 
showing  that  it  was  not  sold  in  the  ordinary  course  of  the  ser- 
vant's duty.  The  same  law  is  applied  to  the  publishers  of 
newspapers.* 

§  37.  Innocence.  The  presumption  of  innocence  may  be  over- 
thrown, and  a.  presumption  of  guilt  be  raised  by  the  misconduct 
of  the  party,  in  suppressing  or  destroyirig  evidence  which  he 
ought  to  produce,  or  to  which  the  other  party  is  entitled.  Thus, 
the  spoliation  of  papers,  material  to  show  the  neutral  character 
of  a  vessel,  furnishes  a  strong  presumption,  in  odium  spoliatoris 
against  the  ship's  neutrality.  ^  (a)  A  similar  presumption  is 
raised  against  a  party  who  has  obtained  possession  of  papers 
from  a  witness,  after  the  service  of  subpoena  duces  tecum  upon 
the  latter  for  their  production,  which  is  withheld. ^  (6)     The  gen- 

3  Rex  V.  Gutch,  1  M.  &  M.  433;  Harding  w.  Greening,  8  Taunt.  42  ;   Rex  v.  Almon, 

5  Burr.  2686  ;  Rex  v.  Walter,  3  Esp.  21;  1  Russ.  on  Crimes,  341  (3d  ed.  p.  251);  Pli. 

6  Am.  on  Evid.  466  ;  1  Phil.  Evid.  446. 

*  1  Kuss.  on  Cnme.s,  341  ;  Kex  v.  Nutt,  Bull.  N.  P.  6  {3d  ed.  p.  251)  ;  Southwick 
V.  Stevens,  10  Johns.  443. 

1  The  Hunter,  1  Dods.  480  ;  The  Pizarro,  2  Wheat.  227  ;  1  Kent,  Comm.  157  ; 
supra,  §  31. 

2  Leeds  v.  Cook,  4  Esp.  256  ;  Rector  v.  Rector,  3  Gilni.  105.  But  a  refusal  to  pro- 
duce books  and  papers  under  a  notice,  though  it  lays  a  foundation  for  the  introduc- 
tion of  secondary  evidence  of  their  contents,  has  been  held  to  alford  no  evidence  of  the 
fact  sought  to  be  proved  by  tlieni  ;  such,  for  exani[>le,  as  the  existence  of  a  deed  of 
conveyance  from  one  mercantile  partner  to  another.  Hanson  v.  Eustace,  2  Howard, 
S.  C.  653. 

(c)  This  is  rather  a    presumption   of  written  evidence,  he  must  show  that  it 

authority  conferred  upon  the  agent  to  do  was   innocently   done   before    he    can   be 

the  act,  than  an  exception  to  the  rule  of  allowed    to    give    secondary   evidence    of 

presumed  innocence.     Cooi)er  v.   Slade,  6  the   contents   of  the   writings   destroye(i. 

H.  of  L.  786  ;  Rex  v.  Dixon,  3   M.  &  S.  Joannes  j;.  Bennett,  5  Allen  ^Mass.),  169  ; 

11  ;    Rex  V.  Medley,  6  C.  &  P.  292.     As  Tilton  v.  Beecher,  Supt.  Ct.  (N.  Y.)  1875  ; 

to  presumptions  from  alterations  of  nego-  Bagley  v.  M'Mickle,  9  Cal.  430  ;  Tobin  v. 

tiable  paper,  see /30.9/,  §  564,  n.  Shaw,  45  Me.  331.     Post,  §  84,  n. 

(a)  Blade  V.  Noland,  12  Wend.  (N.Y.)  (b)  So  if  he  withholds    papers   which 

173.     When  a  party  voluntarily  destroys  would  explain  doubts,  the  doubts  must  be 


56  LAW    OF   EVIDENCE.  [PART   I. 

eral  rule  is,  omnia  prcesumuntur  contra  spoUatorem.^  His  conduct 
is  attributed  to  his  supposed  knowledge  that  the  truth  would  have 
operated  against  him.  Thus,  if  some  of  a  series  of  documents  of 
title  are  suppressed  by  the  party  admitting  them  to  be  in  his 
possession,  this  is  evidence  that  the  documents  withheld  afford 
inferences  nnfavorable  to  the  title  of  that  party.*  (a)  Thus,  also, 
where  the  finder  of  a  lost  jewel  would  not  produce  it,  it  was  pre- 
sumed against  him  that  it  was  of  the  highest  value  of  its  kind.^ 
But  if  the  defendant  has  been  guilty  of  no  fraud,  or  improper 
conduct,  and  the  only  evidence  against  him  is  of  the  delivery  to 
him  of  the  plaintiff's  goods,  of  unknown  quality,  the  presump- 
tion is  that  they  were  goods  of  the  cheapest  quality.^  (c?)  The 
fabrication  of  evidence,  however,  does  not  of  itself  furnish  any 
presumption  of  law  against  the  innocence  of  the  party,  but  is  a 
matter  to  be  dealt  with  by  the  jury.  Innocent  persons,  under 
the  influence  of  terror  from  the  danger  of  their  situation,  have 
been  sometimes  led  to  the  simulation  of  exculpatory  facts;  of 
which  several  instances  are  stated  in  the  books. '  (e)     Neither  has 

3  2  Poth.  Obi.  (bv  Evans)  292  ;  Dalston  v.  Coatsworth,  1  P.  Wms.  731  ;  Cowper  v. 
Earl  Cowper,  2  P.  Wins.  720,  748-752  ;  Rex  v.  Arundel,  Hob.  109,  explained  in  2  P. 
Wms.  718,  719  ;  D.  of  Newcastle  v.  Kinderley,  8  Ves.  363,  37.5  ;  Annesley  v.  E.  of 
An£;lesea,  17  Howell's  St.  Tr.  1430.  See  also  Sir  Samuel  Komilly's  argument  in  Lord 
Melville's  Case,  29  Howell's  St.  Tr.  1194,  1195  ;  Anon.,  1  Ld.  Raym.  731  ;  Broom's 
Legal  Maxims,  p.  485.  In  Barker  v.  Ray,  2  Riiss.  73,  the  Lonl  Chancellor  thought 
that  this  rule  had  in  some  cases  been  pressed  a  little  too  far.  See  also  Harwood  v. 
Goodright,  Cowp.  87. 

*  James  v.  Biou,  2  Sim.  &  Stu.  600. 

5  Armory  v.  Delamirie,  1  Str.  505  ;  Sutton  v.  Devonport,  27  L.  J.  C.  P.  54. 

^  Clunues  v.  Pezzey,  1  Campb.  8. 

T  See  3  Inst.  104  ;  'Wills  ou  Circumst.  Evid.  113. 

to  his  prejudice.     Attorney-Gen.  v.  Wind-  169.     If  the  charge  be  of  fraud  or  miscon- 

sor,  24  Beav.  679.  duct,   and  the   production    of  the  papers 

The  omission  of  a  party  to  call  a  wit-  would  establish  his  guilt  or  innocence,  the 

ness,  who  might  equally  have  been  called  jury  will  be  amply  justified   in   inferring 

by  the  other  party,  is  no  ground  for  a  pre-  guilt,  from  the  unexplained  fact  of  their 

sumption  that  the  testimony  of  the  wit-  non-production.     Clifton  ?;.  United  States, 

ness  would  have  been  unfavorable.    Cramer  4    How.    (U.    S. )    242.     Tampering   with 

V.    Burlington,  49  Iowa,  213  ;  Scovill  v.  witnesses  gives  rise  also  to  adverse  pre- 

Baldwin,  27  Conn.  316.  sumption.s.     Moriarty  v.  L.  C.  &  D.  R.  R. 

(c)  Thompson    v.    Thompson,    9    Ind.  Co.,  L.  R.  ,5  Q.  B.  314. 
323  ;  Jones  v.  Knauss,  31  N.  J.  Eq.  609  ;  (d)  Harris  v.  Rosenberg,  43  Conn.  227  ; 

Attorney-General   v.    Windsor,    24   Beav.  Tea    v.   Gates,   10    Ind.    164  ;    Lawton    v. 

679.     But  this  presumption  is  one  of  fact  Sweeney,  8  .lur.  964. 
only,  and  will  not  suffice  to  establish  the  ie)  In  Winchell    v.    Edwards,    57    111. 

contents  of  such  documents  without  proper  41,  the  fabrication  of  evidence  is  held  to 

secondary  evidence.     It  is  only  when  this  give  rise  to  the  same  presumption  as  its 

secondary  evidence  is  weak  and  vague  that  destruction.     See  also  1  Ph.  Ev.  (4th  Am. 

the  presumption  takes  effect.     If  the  evi-  ed. )  639;  Com.  v.  Webster,  5  Cush.  (Mass.) 

denco  of  the  contents  is  distinct  and  un-  316  ;  Gardiner  v.  People,  6  Parker,  C.  C. 

ambiguous,    the     presumption    does    not  155  ;  and  post,  vol.  iii.  §  34.     As  to  altera- 

arise.       Bott   v.    AVood,    56    Miss.     136;  tion  of  evidence,  see  pos<,  §  565,  and  State 

Spring  Garden  Ins.  Co.  v.  Evans,  9  Md.  v,  Kuapp,  45  N.  H.  148. 
1  ;  Joannes  v.  Bennett,  5  Allen  (Mass.), 


CHAP.    IV.]  OF    PRESUMPTIVE    EVIDENCE.  57 

the  mere  non-production  of  books,  upon  notice,  any  other  legal 
effect,  tlian  to  admit  the  other  party  to  prove  their  contents  by 
parol,  unless  under  special  circumstances.^  (/) 

§  3H.  Course  of  trade.  Other  presumptions  of  this  class  are 
founded  upon  the  experience  of  human  conduct  in  tJie  course  of 
trade;  men  being  usually  vigilant  in  guarding  their  property, 
and  f)rompt  in  asserting  their  rights,  and  orderly  in  conducting 
their  affairs,  and  diligent  in  claiming  and  collecting  their  dues,  {a) 
Thus,  where  a  bill  of  exchange,  or  an  order  for  the  payment  of 
money  or  delivery  of  goods,  is  found  in  the  hands  of  the  drawee, 
or  a  promissory  note  is  in  the  possession  of  the  maker,  a  legal 
presumption  is  raised  that  he  has  paid  the  monej  due  upon  it, 
and  delivered  the  goods  ordered.^  A  bank-note  will  be  presumed 
to  have  been  signed  before  it  was  issued,  though  the  signature  be 
torn  off. 2  So,  if  a  deed  is  found  in  the  hands  of  the  grantee, 
having  on  its  face  the  evidence  of  its  regular  execution,  it  will 

8  Cooper  V.  Gibbons,  3  Campb.  363. 

1  Gibbon  v.  FeatherstonhauKli,  1  Stark.  225  ;  Egg  v.  Barnett.  3  Esp.  196  ;  Garlock 
V.  Geortner,  7  Wend.  198  ;  Alvord  v.  Baker,  9  Wend.  323  ;  Weidner  v.  ydiweigart,  9 
Serg.  &  K.  385  ;  Shepherd  v.  Ciirrie,  1  Stark.  454  ;  Brembridge  v.  Osborne,  Id.  374. 
The  production,  by  the  plaintiff,  of  an  I  O  U,  signed  by  the  defendant,  is  prima  facie 
evidence  that  it  was  given  by  hnn  to  the  plaintiff.  Curtis  v.  Rickards,  1  M.  &  G.  46. 
And  where  there  are  two  jiersons,  father  and  son,  of  the  same  name,  it  is  ])resunied  that 
the  father  is  intended  until  the  contrary  appears.  See  Stebbing  v.  Spicer,  8  M.  G.  & 
S.  827,  where  the  cases  to  this  jjoint  are  collected.  See  also  State  v.  Vittum,  9  N.  H. 
519  ;  Kincaid  v.  Howe,  10  Mass.  205. 

2  Murdock  v.  Union  Bank  of  La.,  2  Rob.  (La.)  112  ;  Smith  v.  Smith,  15  N.  H.  55. 

( /)  But   it  has    also   been   held   that  But  see  Mooers  v.  Bunker,  29  N.  H.  420. 

where,  after  notice  and  refusal  to  produce  And  generally  identity   of    name   is   pre- 

documents,  it  is  shown  that  they  are  in  sumptive  of  identity  of  person.     Gitt  v. 

the  control  of  the  party  notified,  and  sec-  Watson,  18  ]Slo.  274.     But  any  diti'erence 

ondary  evidence  is  given  of  their  contents,  in  the  names  destroys   the  presumption, 

and   such   evidence   is    imperfect,    vague,  Bennett  v.   Libhart,   27  Mich.  489  ;    Mc- 

and  uncertain,  every  presumption  shouhl  Minn  v.  Whelan,  27  Cal.  300  ;  Ellsworth 

be  made  by  the  jury  against  the  party  so  v.  Moore,  5  Iowa,  486  ;  Burford  v.  JlcCue, 

refusing  to  produce  the  documents.     Cross  53  Pa.  St.  427.     And  the  ]'arty  benefited 

V.  Bell,  34  N.  H.  83  ;  Barber  v.  Lyon,  22  by  a  deed  or  judgment  will  be  presumed  to 

Barb.  (N.    Y.)   622.     Cf.    Spring  Garden  as.sent  to  the  same.     Clawson  v.  Eichbaum, 

Mutual  Ins.  Co.  v.   Evans,  9  Md.  1.  2  Grant's  Cas.  130. 

{a)  The   presumptions    based    on    the  There  is   also   said  to   be  a  legal  pre- 

usual  course  of  human  affairs,  while  they  sumption,  that  the  property  in  the  goods 

derive  a  certain  generality  of  application  is  in  the  consignee  named  in  the  bill  of 

from  the  uniformity  of  business,  are  still  lading,  so  that  he   may  sue  in    his  own 

rather  in  the  nature  of  prima  facie  evi-  name  to  recover  damages  for  non-delivery 

dence,  or  presumptions  of   fact,  or  infer-  thci'eof,    &c.      Lawrence   v.    Minturn,   17 

ences,  than  presumptions  of  law.  How.  (U.S.)  100.     So,  of  an  unsigned  ac- 

Thus  it  is  said  that  wheie  the  name  of  count  in  the  handwriting  of  the  maker,  in 

the  grantee  of  land   and  that  of  a  prior  the  hands  of  the  debtor.     Nicholst).  Alsop, 

holder  and  grantor  are   the  same,  it  will  10  Conn.  263.     The  possession  by  a  party 

be  presumed  they  designate  the  same  per-  of  a  receipt  from  a  cominon  carrier  raises 

son.     Brown  v.  Metz,  33  111.  339.     So  of  the  presumption  of  a  jiroper  delivery,  and 

two   grants   of  land  to   the   same   name,  of  the  ])ossessor's  assent  to  its  terms.     Boor- 

Cates  V.  Loftus,  3  A.  K.  Mar.  (Ky.)  202.  man  v.  Am.  Exp.  Co.,  21  Wis.  152. 


58  LAW    OP    EVIDENCE.  [PART    I. 

be  presumed  to  have  been  delivered  by  the  grantor.^  (6)  So  a 
receipt  for  the  last  year's  or  quarter's  rent  is  prima  facie  evi- 
dence of  the  payment  of  all  the  rent  previously  accrued.*  {c)  But 
the  mere  delivery  of  money  by  one  to  another,  or  of  a  bank  check, 
or  the  transfer  of  stock,  unexplained,  is  presumptive  evidence  of 
the  payment  of  an  antecedent  debt,  and  not  of  a  loan.^(t^)  The 
same  presumption  arises  upon  the  payment  of  an  order  or  draft 
for  money;  namely,  that  it  was  drawn  upon  funds  of  the  drawer 
in  the  hands  of  the  drawee.  But  in  the  case  of  an  order  for  the 
delivery  of  goods  it  is  otherwise,  they  being  presumed  to  have 
been  sold  by  the  drawee  to  the  drawer. ^  Thus,  also,  where  the 
proprietors  of  adjoining  parcels  of  land  agree  .upon  a  line  of 
division,  it  is  presumed  to  be  a  recognition  of  the  true  original 
line  between  their  lots.'^ 

§  38  a.  Execution  of  instruments.  Regularity  of  acts.  Of  a  simi- 
lar character  is  the  presumption  in  favor  of  the  due  execution  of 
solemn  instruments.  Thus,  if  the  subscribing  witnesses  to  a 
will  are  dead,  or  if,  being  present,  they  are  forgetful  of  all  the 
facts,  or  of  any  fact  material  to  its  due  execution,  the  law  will 
in  such  cases  supply  the  defect  of  proof,  by  presuming  that  the 
requisites  of  the  statute  were  duly  observed.  ^  The  same  prin- 
ciple, in  effect,  seems  to  have  been  applied  in  the  case  of  deeds. ^ 

8  Ward  V.  Lewis,  4  Pick.  518. 

4  1  Gilb.  Evid.  (by  Lotft)  309  ;  Brewer  v.  Knapp,  1  Pick.  337. 

5  Welch  V.  Seaborn,  1  Stark.  474  ;  Patton  v.  Ash,  7  Serg.  &  R.  116,  125  ;  Breton 
V.  Cope,  Peake's  Cas.  30;  Lloyd  v.  Sandilands,  Gow,  13,  16  ;  Gary  v.  Genish,  4  Esp. 
9  ;  Aubert  v.  Walsh,  4  Taunt.  293  ;  Boswell  v.  Smith,  6  C.  &  P.  60. 

6  Alvord  V.  Baker,  9  Wend.  323,  324. 

7  Sparhawk  v.  Bnllard,  1  Met.  95. 

^  Burgoyne  v.  Showier,  1  Roberts,  Eccl.  10  ;  In  re  Leach,  12  Jur.  381. 

2  Burling  v.  Paterson,  9  C.  &  P.  570  ;  Dewey  v.  Dewey,  1  Met.  349  ;  Quiniby  v. 
Buzzell,  4  Shepl.  470  ;  New  Haven  Co.  Bank  v.  Mitchell,  15  Conn.  206  ;  infra,  §  372, 
n.  But  there  is  no  presumption  in  the  case  of  a  deed,  that  the  witnesses,  being  dead, 
would,  if  living,  testify  to  the  grantor's  soundness  of  mind  at  the  time  of  delivery. 
Flanders  u.  Davis,  19  N.  H.  139.  Bui  one  will  be  presumed  to  understand  the  con- 
tents of  an  instrument  signed  by  him,  and  whether  dated  or  not.  Androscoggin  Bank 
V.  Kimball,  10  Gush.  373.  («) 

(6)  In  regard  to  written  instruments,  it  J.    Q.   B.    435  ;    Potez  v.   Glossop,   2   Ex. 

will  also  be  presumed  as  follows  :  —  191  ;  Sinclair  v.  Bagalley,  4  M.  &  W.  318  ; 

1.    An  instrument  is  presumed  to  have  Trelawney  v.  Colman,  2  Stark.  193. 

been  made  on  the  day  which  it  is  dated  ;  2.    When  any  document  purporting  to 

and  if  several   documents   are  dated  the  be  stamped  as  a  deed   is  properly  signed 

same  day,  it  will  be  presumed  that  they  and  delivered,  it  is,  in  most  States,  pre- 

were  made  in  the  order  necessary  to  eifect  sumed   to   have   been   sealed,  though   no 

the  object  for  which  they  were  executed,  trace  of  one  is  left.     Re  Sandilands,  L.  R. 

unless  some  indications  of  fraud  appear.  6  C.  P.  411.     See/jrts«,  vol.  ii.  §§  296,  297. 

Stephen's  Dig.  Evid.  art.  85.     New  Haven  Stephen's  Dig.   Evid.  art.  87.     As  to  the 

V.   Mitchell,    15  Conn.   206  ;  Williams  v.  effects  of  alterations,  see  post,  §§  564-568. 

Woods,  16  Md.  220  ;  Anderson  v.  Weston,  (c)   Hodgdon  v.  Wight,  36  Me.  326. 

6  Bing.  N.  C.  302  ;  Houliston  v.  Smith,  (d)  Gerding  v.  Walter,  29  Mo.  426. 

2  C.  &  P.  24  ;  Malpas  v.  Clements,  19  L.  (a)  So  also  he  will  be  conclusively  pre- 


CHAP.    IV.] 


OF    PRESUMPTIVE    EVIDENCE. 


59 


§  89.  Lapse  of  time.  Oil  the  same  <j,cncral  principle,  where  a 
debt  due  by  specialty  has  been  unclaimed,  and  without  recognition, 
for  twenty  years,  in  the  al)sence  of  any  explanatory  evidence,  it 
is  presumed  to  have  been  paid.  The  jury  may  infer  the  fact  of 
payment  from  the  circumstances  of  the  case,  within  that  period; 
but  the  presum})tion  of  law  does  not  attach,  till  the  twenty  years 
are  expired. ^  This  rule,  with  its  limitation  of  twenty  years, 
was  first  introduced  into  the  courts  of  law  by  Sir  Matthew  Hale, 
and  has  since  been  generally  recognized,  both  in  the  courts  of 
law  and  of  equity.^  It  is  applied  not  only  to  bonds  for  the  pay- 
ment of  money,  but  to  mortgages,  judgments,  warrants  to  confess 
judgments,  decrees,  statutes,  recognizances,  and  other  matters 
of  record,  when  not  affected  by  statutes  {a) ;  but  with  respect  to 
all  other  claims  not  under  seal  nor  of  record,  and  not  otherwise 

1  Oswald  V.  Legh,  1  T.  R.  270  ;  Hillary  v.  Waller,  12  Ves.  264  ;  Colsell  v.  Budd, 
1  Canipb.  27  ;  Boltz  v.  Bulliiiau,  1  Yeates,  584  ;  Cottle  v.  Payne,  3  Day,  289.  In  some 
cases,  the  presumption  of  payiiicnt  has  been  made  by  the  court,  after  eighteen  years. 
Rex  V.  Stephens,  1  Burr.  434  ;  Clark  v.  Hopkins,  7  Johns.  556  ;  but  these  seem  to  be 
exceptions  to  the  general  rule. 

■-*  Mathews  on  Prcsunipt.  Evid.  379  ;  Hawoith  v.  Bostock,  4  Y.  &  C.  1  ;  Grenfell 
V.  Girdlestone,  2  Y.  &  C.  662. 

Rex  V.  All  Saints,  &c.,  7  B.  &  C.  790  ; 
Reg.  V.  Totness,  1 1  Q.  B.  80.  So  it  will 
be  presumed  that  lost  instruments  had  all 
the  requisites  to  make  them  valid,  as  that 
they  were  stamped  (Hart  v.  Hart,  1  Hare, 
1  ;  Rpx  V.  Long  Buckliy,  7  East,  45)  ;  but 
not  if  when  last  seen  they  were  not 
stamped.  Aibon  v.  Fussell,  9  Jur.  n.  s. 
753.  But  when  it  apftears  that  there  was 
opportunity  for  imposition,  undue  influ- 
ence, overreaching,  an  unconscionable  ad- 
vantage on  the  part  of  the  party  who  seeks 
to  establish  the  instrument,  courts  of 
equity  at  least  will  require  more  or  less 
proof  according  to  circumstances.  Baker 
V.  Bradley.  25  L.  J.  Ch.  7  ;  Cooke  v.  La- 
motte,  15  Beav.  234  ;  Gresley  v.  Mouslev, 
28  L.  J.  Ch.  620  ;  Lyon  D.Honic,  37  L. 
J.  Ch.  674  ;  Dimsdale  v.  Dmisdale,  25  L. 
J.  Ch.  806  ;  Baker  v.  Monk,  33  Beav.  419. 
Courts  of  equity  will  jiresume,  especially 
as  between  those  sustaining  fiduciary  or 
confidential  relations,  voluntary  gifts  to  be 
invalid,  unless  satisfied,  upon  proof,  there 
was  no  imposition,  undue  influence,  or 
other  wrong.  Nottidge  v.  Prince,  2  Gifli'. 
246  ;  1  Story,  Eq.  Jur.  §§  308-324.  Not, 
however,  if  the  relation  is  unlawful,  as 
where  a  mistress  sets  up  a  violation  oi  con- 
fidence on  the  part  of  her  paramour.  Har- 
greave  v.  Everard,  6  Ir.  Ei).  278. 

(a)  Jarvis  v.  Albro,  67  Me.  310  ;  Fisher 
V.  Mayor,  13  N.  Y.  Sup.  Ct.  64. 


sumed  to  have  read  a  bill  of  lading  de- 
livered to  him  by  a  carrier,  tlieie  being  no 
fraud.  Grace  v.  Adams,  100  Mass.  505. 
But  not  to  know  the  contents  of  a  notice 
printed  on  the  back  of  a  railroad  ticket. 
Malone  v.  B.  &  W.  K.  R.  Co.,  12  Gray 
(Mass.),  388.  On  the  maxim;  "Omnia 
prsesuninntur  rocte  esse  acta,"  that  will  be 
presumed  to  have  been  done  which  ought 
to  have  been  done,  as  that  a  bill  in  Chan- 
cery was  sworn  to  (Hex  v.  Benson,  2 
Campb.  508)  ;  that  a  notice  printed, 
posted,  and  apparently  signed  by  the  com- 
mander of  a  military  post,  was  by  his  or- 
der (Bruce  v.  Nicolopopulo,  11  Ex.  129)  ; 
that  a  church,  long  used,  was  duly  conse- 
crated (liugg  V.  Kingsmill,  L.  R.  1  Ad. 
Ec.  343 ;  Reg.  v.  Mainwaring,  26  L.  J.  M. 
C.  10)  ;  that  a  parish  certificate,  long  rec- 
ognized, was  duly  executed  (IJex  v.  Upton, 
Gray,  10  B.  &  (J.  807  ;  Reg.  v.  Stainforth, 
11  Q.  B.  66)  ;  and  geneially  when  an  offi- 
cial act  has  been  done,  which  can  only  be 
lawful  and  valid,  by  the  doing  of  certain 
preliminary  acts,  it  will  be  presumed  that 
those  preliminary  acts  have  also  been  done. 
Rex  V.  Whiston,  4  A.  &  E.  607  ;  Reg.  v. 
Broadhemi)ston,  28  L.  J.  M.  C.  18  ;  Cos- 
set V.  Howard,  10  Q.  B.  411.  So  it  will 
be  presumed  that  the  designation  of  a  for- 
eign official  is  true.  Saltar  v.  Applegate, 
3  Zabr.  (N.  J.)  115.  But  jurisdiction  will 
not  be  presumed  in  favor  of  inferior  courts  ; 
or  those  established  for  special  purposes. 


GO  LAW    OF   EVIDENCE.  [PART  I. 

limited,  whether  for  the  payment  of  money,  or  the  performance 
of  specific  duties,  the  general  analogies  are  followed,  as  to  the 
application  of  the  lapse  of  time,  which  prevail  on  kindred  sub- 
jects.'^ (i)  But  in  all  these  cases,  the  presumption  of  payment 
may  be  repelled  by  any  evidence  of  the  situation  of  the  parties, 
or  other  circumstance  tending  to  satisfy  the  jury  that  the  debt  is 
still  due.* 

§  40.  Course  of  business.  Under  this  head  of  presumptions 
from  the  course  of  trade,  may  be  ranked  the  presumptions  fre- 
quently made  from  the  regular  course  of  business  in  a  public 
office.  Thus  postmarks  on  letters  are  prima  facie  evidence,  that 
the  letters  were  in  the  post-office  at  the  time  and  place  therein 
specified.  1  If  a  letter  is  sent  by  the  post,  it  is  presumed,  from 
the  known  course  in  that  department  of  the  public  service,  that 
it  reached  its  destination  at  the  regular  time,  and  was  received 
by  the  person  to  whom  it  was  addressed,  if  living  at  the  place, 
and  usually  receiving  letters  there,  ^(a)     So,  where  a  letter  was 

3  This  presumption  of  the  common  law  is  now  made  absolute  in  the  case  of  debts 
due  by  specialty,  by  Stat.  3  &  4  Wm.  IV.  c.  42,  §  3.  See  also  Stat.  3  &  4  \Vm.  IV. 
c.  27,  and  7  Wm.  IV.  &  1  Vic.  c.  28.  It  is  also  adopted  in  Xew  York,  by  Rev.  Stat, 
part  3,  c.  4,  tit.  2,  art.  5,  and  is  repellable  only  by  written  acknowledgment,  made 
within  twenty  years,  or  proof  of  part  payment  within  that  period.  In  Maryland,  the 
lapse  of  twelve  years  is  made  a  conclusive  presumption  of  payment,  in  all  cases  of 
bonds,  judgments,  recognizances,  and  other  specialties,  by  Stat.  1715,  c.  23,  §  6  ;  1  Dor- 
sey's  Laws  of  ilaryl.  p.  11  ;  Carroll  v.  Waring,  3  Gill  &  Johns.  491.  A  like  provision 
exists  in  Massachusetts,  as  to  judgments  and  decrees,  after  the  lapse  of  twenty  years. 
Rev.  Stat.  c.  120,  §  24  ;  Pub.  Stat.  c.  197,  §  23. 

*  A  more  extended  consideration  of  this  subject  being  foreign  from  the  plan  of  this 
v.'ork,  the  reader  is  referred  to  the  treatise  of  Mr.  Mathews  on  Presumptive  Evidence, 
c.  19,  20;  and  to  Best  on  Presumptions,  part  1,  c.  2,  3. 

1  Fletcher  v.  Braddyll,  3  Stark.  64  :  Rex  v.  Johnson,  7  East,  65  ;  Rex  v.  Watson, 
1  Campb.  215  ;  Rex  v.  Plumer,  Russ.  &  Ry.  264  ;  New  Haven  Co.  Bank  v.  Mitchell, 
15  Conn.  206. 

2  Saunderson  v.  Judge,  2  H.  BL  509;  Bussard  v.  Levering,  6  Wheat.  102;  Linden- 
berger  v.  Beall,  Id.  104 ;  Bayley  on  Bills  (by  Phillips  &  Sewall),  275,  276,  277  :  Wal- 
ter V.  Haynes,  Ry.  &  M.  14"9;"Warren  v.  Warren,  1  Cr.  M.  &  R.  250  ;  Russell  v. 
Buckley,  4  R.  I.  525. 

(b)  Worth  V.   Gray,    6   Jones  (N.  C),  Austin  v.   Holland,   69  N.  Y.   571,   576; 

Eq.  4  ;  Knight  v.  Macomber,  55  Me.  132.  and   cf.    Loud  v.   Merrill,    45    Me.    516  ; 

(ft)  A  presumption  of  fact  that  a  letter  Freeman  v.  Morey,  Id.  50,  and  post,  vol. 
■was  duly  received  arises  upon  proof  that  ii.  §  188.  This  presumption  or  inference 
it  was  deposited  in  the  post-office,  properly  of  fact  of  the  receipt  of  a  letter  duly  mailed, 
addressed,  with  the  postage  prepaid.  This  is  strengthened  by  the  fact  that  on  the  en- 
presumption  is  based  on  the  probability  velo[)e  was  printed  a  request  that  the  let- 
that  the  officers  of  the  government  will  do  ter  if  not  delivered  as  addressed  within  a 
their  duty,  and  that  letters  will  be  duly  certain  time  be  returned  to  the  writer,  ac- 
delivered.  Briggs  v.  Hervey,  130  Mass.  companied  by  evidence  that  the  letter  has 
187  ;  Folsom  v.  Cook,  115  Pa.  St.  548  ;  not  been  returned.  Hedden  v.  Roberts, 
Huntley  v.  Whittier,  105  Mass.  391,  and  134  Mass.  38.  The  presumption  or  infer- 
cases  there  cited  :  First,  &c.,  Bank  v.  ence  may  be  met  by  evidence  direct  or 
McManigle,  69  Pa.  St.  156  ;  Greenfield  circum.^tantial  that  the  letter  was  not  re- 
Bank  V.  Crafts,  4  Allen  (Mass.),  447  ;  ceived,  and  the  question  then  becomes 
Rosenthal  v.  Walker,  111  U.  S.  185,  193  ;  one  for  the  jury.     Huntley  v.  Whittier, 


CHAP.    IV.]  OF    PRESUMPTIVE    EVIDENCE.  61 

put  into  a  box  in  an  attorney's  ofTice,  and  the  course  of  business 
was  that  a  belhnan  of  the  post-office  invariably  called  to  take  the 
letters  from  the  box ;  this  was  held  sufficient  to  presume  that  it 
reached  its  destination.^  (i)  So,  the  time  of  clearance  of  a  vessel, 
sailing  under  a  license,  was  presumed  to  have  been  indorsed  upon 
the  license,  which  was  lost,  upon  its  being  shown  that,  without 
such  indorsement,  the  custom-house  would  not  have  permitted  the 
goods  to  be  entered.*  (e)  So,  on  proof  that  goods  Avhich  cannot 
be  exported  without  license  were  entered  at  the  custom-house  for 
exportation,  it  will  be  presumed  that  there  was  a  license  to  ex- 
port tliem.°  The  return  of  a  sheriff,  also,  which  is  conclusively 
presumed  to  be  true,  between  the  parties  to  the  process,  is  taken 
prima  facie  a^  true,  even  in  his  own  favor;  and  the  burden  of 
proving  it  false,  in  an  action  against  him  for  a  false  return,  is 
devolved  on  the  plaintiff",  notwithstanding  it  is  a  negative  allega- 
tion.^ In  fine,  it  is  presumed  until  the  contrary  is  proved,  that 
every  man  obeys  the  mandates  of  the  law,  and  performs  all  his 
official  and  social  duties.'' (tZ)      The   like  presumption   is   also 


8  Skilbeck  v.  Garbett,  9  Jnr.  339  ;  s.  c.  7  Ad.  &  El.  N.  s.  846. 
4.  Butler  V.  Allnut,  1  Stark.  '222. 

5  Van  Omeron  v.  Dowick,  2  Cainph.  44. 

6  Clarke  v.  Lyman,  10  Pick.  47;    Bovnton  v.  Willard,  Id.  169. 

">  Ld.  Halifax's  Case,  Bull.  N.  P.  [29S]  ;  United  States  Bank  v.  Dandridge,  12 
Wheat.  69,  70;  Williams  t;.  E.  Ind.  Co.,  3  East,  192;  Hartwell  v.  Root,  19  Johns. 
345  ;   The  Mary  Stewart,   2  W.  Kob.  Adm.  244.     Hence,  children   born  during  the 

separation  of  husband  and  wife,  by  a  decree  of  divorce  a  mensa  et  thoro,  are^^riwia  facie, 

illegitimate.     St.  George  v.  St.  JIargaret,  1  Salk.  123. 

105  Mass.  391.     A  similar  presumption  of  in  force  on  every  part  of  the  day  on  vhich 

fact,    though   perhaps    of    less    probative  they  were  passed,  or  on  which  they  are  to 

force,  follows  the  delivery  of  a  message,  take  effect.    Re  Wellman,  20  Vt.  653.     But 

properly  addressed  to  a  telegraph  company  when   the  question  concerns  the   acts  of 

for  transmission.     Oregon  Steamship  Co.  parties ;    when    it   becomes    necessary   to 

V.  Otis,  100  N.  Y.  451  ;   Com.  v.  Jeffries,  ascertain   which  of  several  persons  lias  a 

7  Allen,  548;  United  States  v.  Babcock,  3  priority    of  right,  e.  g.  where  goods   are 

Dill.    C.    C.    571.     The    presirmption    in  seized  on  execution  the  same  day  the  de- 

either  case  is  one  of  fact,  and  so,  open  to  fendant  commits  an  act  of  bankruptcy,  or 

rebuttal   and   contradiction,  and   consists  two  writs  of  attachment  or  execution  are 

merely  in  the  natural  inference  which  may  delivered  to  the  sheriff  on  the  same  day, 

be  drawn  from  the  experienced  certainty  then  it  is  proper  for  the  courts  to  examine 

of  transmission,  because  the  great  bulk  of  into  the  smallest  differences  of  time.     E.c 

letters  sent  by  mail  reach  their  destina-  park   D'Obree,   8  Yes.  83  (.Sumner's  ed.) 

tion,  and  equally  so  the  great  bulk  of  tele-  note  (a)  ;   Re  Kichard.son,  2  Story,  C.  C. 

grams,  and  a  failure  in  either  case  is  an  571;    Ferris  v.  Ward,  9  111.  499  ;    Lang  v. 

exception;    possible,    but   rare.      Oregon  Phillips,  27  Ala.  311  ;  Whittaker  r.  Wis- 

Steamship  Co.  v.  Otis,  supra.  ley,  9  Eng.  L.  k  Eq.  45. 

{b)  Spencer  v.  Thomjison,  6  Ir.  C.  L.  {d)  Lea  v.  Polk  Countv  Copper  Co.,  21 

537.     Cf.  McGregor  v.  Keily,  3  Ex.  794.  How.   (U.  S.)  493;   Cooper  v.  Cranberry, 

(c)   It  is  commonly  said  to  be  a  maxim  33  Miss.  117;    Curtis ''.   Herrick,  14  Cal. 

of  the  law,  that  the  law  knows  no  fraction  117;  I  shell  v.  N.  Y.  &N.  Haven  R.  R.  Co., 

of  a  day.     There  is  a  conclusive  presnmp-  25  Conn.  556. 
tion  that  legislative  and  judicial  acts  are 


62 


LAW   OF   EVIDENCE. 


[part  I. 


drawn  from  the  usual  course  of  men's  private  offices  and  busi- 
ness, where  the  primary  evidence  of  the  fact  is  wanting.^ 

§  41.  Continuity.  Other  presumptions  are  founded  on  the  ex- 
perienced continuance  or  permanency  of  longer  and  shorter  dura- 
tion, in  human  affairs.  When,  therefore,  the  existence  of  a  person, 
a  personal  relation,  or  a  state  of  things,  is  once  established  by 
proof,  the  law  presumes  that  the  person,  relation,  or  state  of 
things  continues  to  exist  as  before,  until  the  contrary  is  shown, 
or  until  a  different  presumption  is  raised,  from  the  nature  of  the 
subject  in  question,  {a)  Thus,  where  the  issue  is  upon  the  life  or 
death  of  a  person,  once  shown  to  have  been  living,  the  burden  of 
proof  lies  upon  the  party  who  asserts  the  death.  W^O  But  after 
the  lapse  of  seven  years,  without  intelligence  concerning  the  per- 
son, the  presumption  of  life  ceases,  and  the  burden  of  proof  is 


8  Doe  V.  Turford,  3  B.  &  Ad.  890,  895  ;  Champneys  v.  Peck,  1  Stark.  404 ;  Pritt 
r.  Fairclough,  3  Cainpb.  305  ;    Dana  v.  Kemble,  19  Pick.  112. 

1  Throf^morton  v.  Walton,  2  Roll.  461 ;  Wilson  v.  Hodges,  2  East,  313  ;  Battin  v. 
Bigelow,  1  Pet.  C.  C.  452;  Gilleland  v.  Martin,  3  McLean,  490.  "  Vivere  etiain 
usque  ad  centum  annos  quihbet  prajsumitur,  nisi  probetur  mortuus."  Corpus  Juris 
Glossatum,  torn.  ii.  p.  718,  n.  (q)  ;  Mascard.  De  Prob.  vol.  i.,  Coucl.  103,  n.  5. 


(a)  Thus  when  personal  property  has 
been  shown  to  belong  to  a  person  prior  to 
his  death,  it  will  be  presumed  to  have 
been  his  property  at  his  death,  and  to 
have  gone  to  his  executors.  Hanson  v. 
Chiatovich,  13  Nev.  395  ;  Flanders  v. 
Merritt,  3  Barb.  (N.  Y.)  201.  But  see 
Adams  V.  Clark,  8  Jones,  L.  (N.C. )  56.  So, 
proof  of  residence  in  a  place  raises  a  pre- 
sumption of  continued  residence  in  that 
place.  Kilhurn  v.  Bennett,  3  Met.  (Mass. ) 
199  ;  Rixfo.-d  v.  Miller,  49  Vt.  319;  Prather 
V.  Palmer,  4  Ark.  456  ;  Nixon  v.  Palmer, 
10  Barb.  (N.  Y.)  175,  178.  So,  if  insan- 
ity is  proved  to  have  existed  once,  it  is 
presumed  to  continue.     State  v.  Wilner, 

40  Wis.  304  ;  Lilly  v.  Waggoner,  27  111. 
395  ;  Crouse  i\  Holman,  19  Ind.  30  ; 
Cook  V.  Cook,  53  Barb.  (N.  Y.)  180.  Re- 
lations proved  to  exist  between  parties  are 
presumed  to  continue.     Eames  v.  Eamcs, 

41  N.  H.  177;  Caujolle  v.  Ferrie,  23 
N.  Y.  90 ;  Smith  v.  Smith,  4  Paige,  432  ; 
Leport  V.  Todd,  32  N.  J.  L.  124  ;  Body 
V.  Jensen,  33  Wis.  402  ;  Cooper  v.  Ded- 
rick,  22  Barb.  (N.  Y.)  516.  So  of  life, 
once  proved.  Duke  of  Cumberland  v. 
Graves,  9  Barb.  (N".  Y.)  595.  So,  owner- 
ship of  personal  proy)erty  is  presumed  to 
continue  till  a  sale  is  shown.  Mere 
change  of  possession  does  not  suffice  to 
control  the  presumption  (McGeer.  Scott, 
9  Cush.  (Mass.)  148)  ;  so  a  custom  to  con- 
tinue (Scales  V.  Key,  11  A.  &  E.  819)  ;  a 


pauper  to  retain  his  settlement  (Rex  v. 
Tanner,  1  Esp.  304)  ;  coverture  to  con- 
tinue (Erskine  v.  Davis,  25  III.  251)  ;  a 
judgment  to  remain  in  force  (Murphy  v. 
Orr,  32  111.  489)  ;  a  state  of  mind  to  con- 
tinue. Blackburn  v.  Stat<-,  23  Ohio  St. 
146.  See  also  Farr  v.  Payne,  40  Vt.  615; 
Leport  V.  Todd,  32  N.  J.  L.  124  ;  and 
post,  §§  42,  47,  n. 

(6)  Our  law  has  not  fixed  the  limit 
when  the  presumption  will  ceass.  Life 
to  the  common  age  of  man  may  be  pre- 
sumed. Stevens  v.  McNamara,  36  Me. 
176.  And  the  extreme  age  of  a  hundred 
years  will  not  warnnt  a  conclusive  jue 
sumption  of  death  (Burney  v.  Ball,  24 
Ga.  505)  ;  nor  infirm  health  and  eighty 
years.  Matter  of  Hall,  1  Wall.  Jr.  85.  On 
the  other  hand,  where  a  term  was  for  sixty 
years,  the  possibility  of  the  termor  being 
alive  after  the  expiration  of  the  term  was 
considered  by  the  court  (Beverley  v.  Bev- 
erley, 2  Vern.  131  ;  Doe  v.  Andrews,  15 
Q.  B.  756)  ;  and  a  deposition,  taken  sixty 
years  before  the  trial, was  rejected,  no  search 
having  been  made  for  the  deponent,  and 
no  reason  shown  why  he  was  not  produced. 
Benson  v.  Olive,  2  Str.  920.  This  pre- 
sumption of  the  continuance  of  life  is  one 
of  fact,  depending  on  the  circumstances  of 
the  case,  and  not  one  of  law.  Hyde  Park 
V.  Canton,  130  Mass.  505.  See  ante  §  35, 
note  rt. 


CHAP,    IV.] 


OF    PRESUMPTIVE    EVIDEN'CE. 


63 


devolved  on  the  other  party.  "^  (c)    This  period  was  inserted,  upon 

2  Hopewell  V.  De  Pinna,  2  Campb.  113;  Lorinf:^  v.  Steineman,  1  Mete.  204  ;  Coler 
V.  Tlieiniond,  1  Kelly,  538.     This  presumption  of  death,  from  seven  j'ears' absence,  was 


(c)  This  rebuttable  presumption  of  law 
is  thus  stated  in  Steplien  Dig.  Evid.  art. 
99.  "A  person  shown  not  to  have  been 
heard  from  for  seven  years  by  those,  if 
any,  who,  if  he  had  been  alive,  would  nat- 
urally have  heard  of  him,  is  presumed  to 
be  dead,  unless  the  circumstances  of  the 
case  are  such  as  to  account  for  his  not 
being  heard  of  without  assuming  his  death ; 
but  there  is  no  presumption  as  to  the  time 
when  he  died,  and  the  burden  of  proving 
liis  death  at  any  particular  time  is  upon 
the  person  who  asserts  it."  In  acconl- 
ance  with  this  rule  are  In  re  Phene"s 
Trusts,  L.  R.  5  Ch.  139  ;  In  re  Lewes's 
Trusts,  L.  R.  11  Eq.  236,  6  Ch.  356  ;  In 
re  Corbishley's  Trusts,  L.  R.  14  Ch.  Div. 
846  ;  Hickman  v.  Upsall,  L.  R.  20  Ecp 
136. 

The  same  presumption  obtains  in  the 
United  States,  with  the  addition,  in  most 
States,  of  the  limitation  that  the  person 
whose  death  is  thus  presumed  must  be 
shown  to  have  been  away  from  his  home, 
and  perhaps  out  of  tlie  State.  Stevens  v. 
JIcNamara,  36  Me.  176  ;  Stinchfield  v. 
Emerson,  52  Me.  465;  Crawford  v.  Elliott, 
1  Houst.  (Del.)  465  ;  McDowell  v.  Simp- 
son, Id.  467;  VVinship  v.  Connor,  42  N.  H, 
341 ;  Whitney  v.  Kicholl,  46  111.  230  ; 
Primm  v.  Stewart,  7  Tex.  178  ;  Holmes 
V.  Johnson,  42  Pa.  St.  159  ;  Garwood  v. 
Hastings,  38  Cal.  217  ;  Keller  v.  Stuck, 
4  Redf.  (N.  Y.)  294;  Wambaugh  v. 
Schenck,  1  Penn.  (N.  J.)  229  ;  Newman 
V.  Jenkins,  10  Pick.  (Mass.)  515;  Hyde 
Park  V.  Canton,  130  Mass.  505. 

There  is  a  difference  in  the  authorities 
in  the  United  States  on  the  (juestion 
whether  the  person  is  presumed  to  be 
alive  till  the  end  of  the  seven  years,  or 
whether  there  is  no  presum])tion  as  to  the 
date  of  his  death  but  any  one  relying  on 
his  death  having  occurred  at  a  certain  date 
must  prove  that  fact.  It  was  held  that 
the  presumption  of  life  continues  till  the 
end  of  the  seven  years,  in  Montgomery  v. 
Bevans,  1  Sawy.  C.  C.  653  ;  Packett  v. 
State,  1  Sneed  (Tenn.),  355  ;  Clarke's 
Executors  v.  Can  Held,  2  McCart.  (X.  J.) 
119;  Eagle  v.  Emmett,  4  Bradf.  (N.  Y.) 
117  ;  Smith  v.  Knowlton,  11  N.  H,  191  ; 
and  see  cases  supra. 

But  in  accordance  with  the  English 
authorities  and  the  better  rule,  it  was 
held  that  there,  is  no  presumption  as  to  the 
date  of  his  death  within  the  seven  years, 
in  Davie  y.  Briggs,  97  U.  S.  628;  Johnson 
V.  Merithew,  80  Me.  115;  Spencer  i;.  Roper, 


13  Ired.  (N.  C.)  333  ;  State  v.  Moore,  11 
Id.  160  ;  McCartee  v.  Camel,  1  Barb. 
(N.  Y. )  Ch.  455  ;  Hancock  v.  American 
L.  Ins.  Co.,  62  Mo.  26. 

In  any  case,  however,  the  date  of  the 
death  within  the  seven  years  may  be 
proved  as  a  fact  by  direct  or  circumstantial 
evidence.  The  most  usual  form  of  such 
evidence  is  that  which  shows  that  the 
person  in  question  was  either  in  such  a 
bad  state  of  health  that  it  is  probable  t])at 
he  is  dead  at  the  time  specified,  or  that  he 
has  been  exposed  to  some  specific  danger, 
such  as  shipwreck  or  railroad  collision, 
which  renders  it  probable  that  he  was 
then  destroyed.  This  and  similar  evideiice 
will  justify  the  finding  of  death  at  a  speci- 
fic date  inside  of  the  seven  years,  by  the 
jurj',  but  mere  unexplained  absence  short 
of  that  time  will  not.  Matter  of  Acker- 
man,  2  Redf.  (N.  Y.)  521  ;  Hancock  v. 
American  L.  Ins.  Co.,  62  Mo.  26  ;  Stou- 
venal  v.  Stephens,  2  Dalv,  (N.  Y.)  319  ; 
Gibbes  v.  Vincent,  11  Rich.  (S.  C.)  L. 
323  ;  Sprigg  v.  Moale,  28  Md.  497  ;  Lor- 
ing  V.  Steinman,  1  Mete.  (Mass.)  204; 
and  cases  supra;  Main,  «i  re,  1  Sw.  & 
Tr.  11.  Thus,  in  a  recent  case  the  facts 
were  that  a  vessel  heavily  laden  with  coal, 
sailed  from  Troon,  in  the  south  of  Scot- 
land, for  Havana,  a  voyage  usually  ac- 
com])]ished  in  from  twenty-five  to  forty 
days,  in  the  track  of  man}'  sailing  vessels 
and  steamers  l)lying  between  the  north  of 
Europe  and  America,  and  was  not  after- 
ward heard  of.  In  case  of  shipwreck,  it 
was  improbable  if  not  impossible  that  the 
vessel,  if  driven  ashore,  should  not  have 
been  reported  in  the  United  States  within 
six  months  of  her  loss.  If  any  on  board 
of  her  had  been  rescued  by  passing  ves- 
sels, they  would  have,  within  tliat  time, 
sent  the  intelligence  of  shipwreck  to  the 
home  port  of  the  vessel.  It  was  held  that 
the  circumstances  surrounding  the  vessel 
and  the  voyage  that  she  entered  upon  au- 
thorized the  inference  of  her  loss  with  all 
on  board  within  the  six  months  following 
the  date  of  her  departure  from  Scotland, 
and  a  jury  would  be  authorized  to  find  the 
death  of  her  master  and  his  family  at  the 
expiration  of  that  period.  Johnson  v. 
Merithew,  80  Me.  115. 

The  ]iresumption  of  death  is  rebuttable 
by  any  facts  showing  that  the  supposed 
deceased  had  been  heard  from  within  seven 
years,  e.  g.  if  letters  had  been  received 
from  him  (Flynn  v.  Coffee,  12  Allen 
(Mass.),   133  ;  Smith  v.   Smith,   49   Ala. 


64  LAW   OP   EVIDENCE.  [PART   I. 

great  deliberation,  in  the  statute  of  bigamy,^  and  the  statute 
concerning  leases  for  lives,'*  and  has  since  been  adopted,  from 
analogy,  in  other  cases.  ^  But  where  the  presumption  of  life 
conflicts  with  that  of  innocence,  the  latter  is  generally  allowed 
to  prevail.^  Upon  an  issue  of  the  life  or  death  of  a  ])arty,  as  we 
have  seen  in  the  like  case  of  the  presumed  payment  of  a  debt,  the 
jury  may  find  the  fact  of  death  from  the  lapse  of  a  shorter  period 
than  seven  years,  if  other  circumstances  concur;  as,  if  the  party 
sailed  on  a  voyage  which  should  long  since  have  been  accom- 
plished, and  the  vessel  has  not  been  heard  from.^  But  the  pre- 
sumption of  the  common  law,  independent  of  the  finding  of  the 
jury,  does  not  attach  to  the  mere  la])se  of  time,  short  of  seven 
years, ^  unless  letters  of  administration  have  been  granted  on  his 

questioned  by  the  Vice-Chaiicellor  of  England,  who  said  it  was  "daily  becoming  more 
and  more  untenable;"  in  Watson  v.  England,  14  Sim.  28;  and  again  in  Dowley  v. 
Winfield,  Id.  277.  But  the  correctness  of  his  remark  is  doubted  in  5  Law  Mag.  n.  .s. 
338,  339  ;  and  the  rule  was  subsequently  adhered  to  by  the  Lord  Chancellor  in  Cuth- 
bert  V.  Furrier,  2  Phill.  199,  in  regard  to  the  capital  of  a  fund,  the  income  of  which 
was  bequeathed  to  an  absent  legatee ;  though  he  seems  to  have  somewhat  relaxed  the 
rule  in  regard  to  the  accumulated  dividends.  See  7  Law  Rep.  201.  The  presumption 
in  such  cases  is,  that  the  person  is  dead  ;  but  not  that  he  dii'd  at  the  end  of  the  seven 
years,  nor  at  any  other  particular  time.  Doe  v.  Nepean,  5  B.  &  Ad.  86  ;  2  ]\L  &  W. 
894.  The  time  of  the  death  is  to  be  inferred  by  the  jury  from  the  circumstances. 
Kust  V.  Baker,  8  Sim.  443;  Smith  v.  Knowlton,  11  X.  H.  191  ;  Doe  v.  Flanagan,  1 
Kelly,  543  ;   Burr  c.  Sim,  4  AVhart.  150;   Bradley  v.  Bradley,  Id.  173. 

3  1  Jac.  L  c.  11. 

4  19  Car.  IL  c.  6. 

5  Doe  V.  Jesson,  6  East,  85  ;  Doe  v.  Deakin,  4  B.  &  Aid.  433;  King  v.  Paddock, 
18  Johns.  141.  It  is  not  necessary  that  the  party  be  proved  to  lie  absent  from  the 
United  States  ;  it  is  sufficient,  if  it  appears  that  he  has  been  absent  for  seven  years, 
from  the  particular  State  of  his  residence,  without  having  been  heard  from.  Newman 
V.  Jenkins,  10  Pick.  515  ;  Innis  v.  Campbell,  1  Rawle,  373;  Spurr  v.  Trimble,  1  A.  K. 
Marsh.  278;  Wambaugh  v.  Schenck,  2  Penningt.  167  ;  Woods  v.  Woods,  2  Bav,  476  ; 
1  N.  Y.  Rev.  Stat.  749,  §  6. 

^  Piex  1-.  Twyning,  2  B.  &  Aid.  386  ;  supra,  §  35.  But  there  is  no  absolute  pre- 
sumption of  law  as  to  the  continuance  of  life  ;  nor  any  absolute  presumption  against  a 
person's  doing  an  act  because  the  doing  of  it  would  be  an  otfence  against  the  law.  In 
every  case  the  circumstances  must  be  considered.  Lapsley  v.  Grierson,  1  H.  L. 
Cas."  498. 

'  In  the  case  of  a  missing  shi]),  bound  from  Manilla  to  London,  on  which  the 
underwriters  have  voluntarily  paid  the  amount  insured,  the  death  of  those  on  board  was 
presumed  by  the  Prerogative  Court,  after  an  absence  of  only  two  years,  and  admin- 
istration was  granted  accordingly.  In  re  Hutton,  1  Curt.  595.  See  also  Sillick  v. 
Booth,  1  Y.  &  Col.  N.  C.  117.  If  the  person  was  unmarried  when  he  went  abroad  and 
was  last  heard  of,  the  presuni])tion  of  his  death  carries  with  it  the  presumption  that  he 
died  without  issue.     Rowe  v.  Hasland,  1  W.  Bl.  404;  Doe  v.  Griffin,  15  East,  293. 

»  Watson  V.  King,  1  Stark.  121;  Green  v.  Brown,  2  Star.  1199;  Park  on  Ins.  433. 

156)  ;   but  the  information  must  be  gen-  (Mass.),  87;  Devlin  v.  Com.,  supm  ;  to  the 

uine   (Prudential   Assurance    Co.    v.    Ed-  effect  that  the  decree  finding  the  death  is 

monds,  L.  R.  2  App.  Cas.  487)  ;  and  also  not  conclusive  until  reversed,  because  it 

by  direct  proof  that  the  supposed  deceased  is  wholly  void   if  the  su)i))Osed   deceased 

is  alive.     Devlin  v.  Cora.,  14  Rep.    795.  turns  out  to  be  alive.     Cf.   Roderigas  v. 

As  to  the  effect  of  letters  of  administration  East  River  Savings  Institution,  63  N.  Y. 

granted  on  this  presumption,  see  Jochum-  460. 
sen   V.    Suffolk   Savings    Bank,    3    Allen 


CHAP.    IV.]  OF   PRESUMPTIVE   EVIDENCE.  65 

estate  within  that  period,  which,   in  such  case,  are  conclusive 
proof  of  his  death.  ^ 

§42.  Partnership.  On  the  8SimG  ground,  St,  partnership,  OY  othcr 
similar  relation,  once  shown  to  exist,  is  presumed  to  continue, 
until  it  is  proved  to  have  been  dissolved.^  (a)  And  a  seisin,  once 
proved  or  admitted,  is  presumed  to  continue,  until  a  disseisin  is 
proved.'-^  The  opinions,  also,  of  individuals,  once  entertained  and 
expressed,  and  the  state  of  mind,  once  proved  to  exist,  are  pre- 
sumed to  remain  unchanged,  until  the  contrary  appears.  Thus, 
all  the  members  of  a  Christian  community  being  presumed  to 
entertain  the  common  faith,  no  man  is  supposed  to  disbelieve  the 
existence  and  moral  government  of  God,  until  it  is  shown  from 
his  own  declarations.  In  like  manner,  every  man  is  presumed 
to  be  of  sane  mind,  until  the  contrary  is  shown;  but,  if  de- 
rangement or  imbecility  be  proved  or  admitted  at  any  particular 
period,  it  is  presumed  to  continue,  until  disproved,  unless  the 
derangement  was  accidental,  being  caused  by  the  violence  of  a 
disease.^  (6) 

§  43.  A  spirit  of  comity  and  a  disposition  to  friendly  inter- 
course are  also  presumed  to  exist  among  nations,  as  well  as 
among  individuals.  And,  in  the  absence  of  any  positive  rule, 
afllirming,  or  denying,  or  restraining  the  operation  of  foreign 
laws,  courts  of  justice  presume  the  adoption  of  them  by  their 
own  government,  unless  they  are  repugnant  to  its  policy,  or 
prejudicial  to  its  interest*  {c)     The  instances  here  given,  it  is 

9  Xewman  v.  Jenkins,  10  Pick.  515.  The  production  of  a  will,  with  proof  of  pay- 
ment of  a  legacj'  under  it,  and  of  an  entry  in  the  register  of  liurials,  were  held  sufficient 
evidence  of  tlie  party's  death.     Doe  v.  Penfold,  8  C.  &  P.  536. 

1  Alderson  v.  Clay,  1  Stark.  405;  2  Stark.  Evid.  590,  688. 

2  Brown  v.  King,  5  Mete.  173. 

3  Attorney-General  v.  Parnther,  3  Bro.  Ch.  Cas.  443;  Peaslee  v.  Rohbins,  3  Mete. 
164;  Hix  v.  Whitteniore,  4  Mete.  545  ;  1  CoUinson  on  Lunacy,  55  ;  Siielford  on  Luna- 
tics, 275;  1  Hal.  P.  C.  30;  Swinb.  on  Wills,  Part  IL  §  iii.  6,  7. 

*  Bank  of  Augusta  v.  Earle,  13  Peters,  519;  Story  on  Confl.  of  Laws,  §§  ?.6,  37. 

{a)  Eames  v.   Eames,  41   N.  H.  177  ;  proof,  and  in  whose  case  the  foreign  law 

Clark  V.  Alexander,  8  Scott  (N.  R.),  161.  relied  on  is  a  material  element,  puts  in  no 

[b)  As  to  the  effect  of  this  ]iresump-  proof  of  such  foreign  law,  the  Court  will 
tion  upon  the  burden  of  proof  in  criminal  presume  the  law  of  such  foreign  State  or 
cases  and  in  the  probate  of  wills,  see  post  country  (and  for  this  purpose  all  the 
Burden  of  Proof,  and  vol.  iii.  §  5.  See  States  of  the  United  States  are  foreign  to 
also  x>ost  vol.  ii.  §§  369-374,  and  §§  689,  each  other),  to  be  the  same  as  its  own  law, 
690.  and  to  be,  in  its  main  outlines,  the  com- 

(c)  A  presumption  exists  in  regard  to  nion  law.  A  party,  therefore,  who  relies 
the  law  of  the  States  of  the  United  States,  upon  the  fact  that  some  general  rule  of  the 
other  than  that  of  the  forum  where  a  case  common  law  is  in  force  in  a  foreign  State 
is  tried,  and  in  regard  to  the  law  of  foreign  (with  the  exceptions  given  below),  need 
countries.  As  the  law  of  foreign  States  not  give  any  proof  of  that  fact.  Holmes 
is  not  judicially  noticed  by  the  Courts,  if  v.  Broughton,  10  Wend.  (N.  Y.)  75;  Sav- 
the  party  upon  whom  is   the  burden  of  age   v.    O'Neil,    44  N".  Y.   298  ;   Flato  v. 

VOL.    I.  — :  5 


66  LAW   OF   EVIDENCE.  [PART   I. 

believed,  will  sufficiently  illustrate  this  head  of  presumptive  evi- 
dence. Numerous  other  examples  and  cases  may  l)e  found  in  the 
treatises  already  cited,  to  which  the  reader  is  referred.^ 

§  44.  Presumptions  of  Fact,  usually  treated  as  composing 
the  seco7id  general  head  of  presumptive  evidence,  can  hardly  be 
said,  with  propriety,  to  belong  to  this  branch  of  the  law.  They 
are,  in  truth,  but  mere  arguments,  of  which  the  major  premise 
is  not  a  rule  of  law ;  they  belong  equally  to  any  and  every  subject- 
matter  ;  and  are  to  be  judged  by  the  common  and  received  tests 
of  the  truth  of  propositions  and  the  validity  of  arguments.  They 
depend  upon  their  own  natural  force  and  efficacy  in  generating 
belief  or  conviction  in  the  mind,  as  derived  from  those  connec- 
tions, which  are  shown  by  experience,  irrespective  of  any  legal 
relations.  They  differ  from  presumptions  of  law  in  this  essential 
respect,  that  while  those  are  reduced  to  fixed  rules,  and  constitute 
a  branch  of  the  particular  system  of  jurisprudence  to  which  they 
belong,  these  merely  natural  presumptions  are  derived  wholly 
and  directly  from  the  circumstances  of  the  particular  case,  by 
means  of  the  common  experience  of  mankind,  without  the  aid  or 
control  of  any  rules  of  law  whatever.  Such,  for  example,  is  the 
inference  of  guilt,  drawn  from  the  discovery  of  a  broken  knife  in 
the  pocket  of  the  prisoner,  the  other  part  of  the  blade  being  found 
sticking  in  the  window  of  a  house,  which,  by  means  of  such  an 
instrument,  had  been  burglariously  entered.  These  presumptions 
remain  the  same  in  their  nature  and  operation,  under  whatever 

2  See  Mathews  on  Presumptive  Evid.  c.  11-22;  Best  on  Presumptions,  passim. 

Mulhall,  72  Mo.  522 ;  Hickman  v.  Al-  Leonard  v.  Columbia,  &c.  Company,  84 
paugh,  21  Cal.  225  ;  Hill  v.  Grigsby,  32  N.  Y.  48.  Cf.  Smith  v.  Whitaker,  23  HI. 
Cal.  55  ;  Atkinson  v.  Atkinson,  15  La.  367.  And  the  presumption  also  only  ex- 
Ann.  491;  Cooper  v.  Reaney,  4  Minn.  528;  tends  to  those  states  and  countries  in 
Green  v.  Rugely,  23  Tex.  539;  Stokes  v.  which  the  common  law  is  the  law  of  the 
Macken,  62  Barb.  (N.  Y.)  145;  Com.  v.  land,  1  c.  the  United  States  (except  Louis- 
Kenney,  120  Mass.  387;  Clutf  v.  Mutual  iana  and  Texas)  and  England.  As  to  the 
Benefit,  &c.  Ins.  Co.,  13  Allen  (Mass.),  law  of  other  countries,  except  perhajis  the 
308;  Hydrick  v.  Burke,  30  Ark.  124;  Cox  criminal  law,  so  far  as  concerns  7?2«/r6  in  se, 
V.  Morrow,  14  Ark.  603;  Bundy  v.  Hart,  no  presumption  is  made.  In  such  cases 
46  Mo.  463;  Reese  v.  Harris,  27  Ala.  301.  the  Court  will  use  the  law  of  its  own  State 
This  presumption  extends  only  to  the  for  want  of  proof  of  other  law.  Norris  r. 
general  principles  of  the  common  law,  and  Harris,  15  Cal.  226;  Flato  v.  Mulhali, 
not  to  statutory  enactments,  such  as  the  72  Mo.  522  ;  Du  Val  v.  Marshall,  30  Ark. 
.statute  making  contracts  formed  on  Sun-  230  ;  Savage  v.  O'Neil,  44  N.  Y.  298. 
day  void  (Murphy  v.  Collins,  121  Mass.  The  law  merchant,  however,  is  known  to 
6  ;  contra,  Brimliall  v.  Van  Campen,  8  be  the  law  of  all  civilized  countries,  and 
Minn.  13);  nor  to  statutes  of  usury  (Cut-  therefore  the  Courts  will  presume  that  the 
ler  V.  Wright,  22  N.  Y.  472  ;  Hall  v.  law  on  any  special  point  of  mercantile  law 
Augustine,"  23  Wis.  3S3) ;  nor  to  statutes  in  a  foreign  state  or  country  is  the  same 
giving  an  action  for  damages  resulting  as  that  of  the  forum.  Dubois  ■;;.  Mason, 
from  death  caused  by  culpable  negligence.  127  I\Iass.  37  ;  Cribbs  v.  Adams,  13  Gray 
McDonald   v.    Mallory,    77   N.    Y.    547 ;  (Mass.),  597. 


CHAP.    IV.] 


OF   PRESUMPTIVE   EVIDENCE. 


67 


code  the  legal  effect  or  quality  of  the  facts,  when  found,  is  to  be 
decided.  1  (a) 

§  45.  Accomplices.  Admissions.  There  arc,  however,  some 
few  general  propositions  in  regard  to  mattei's  of  fact,  and  the 
weight  of  testimony  by  the  jury,  which  are  universally  taken  for 
granted  in  the  administration  of  justice,  and  sanctioned  by  the 
usage  of  the  bench,  and  which,  therefore,  may  with  propriety  Ijc 
mentioned  under  this  head.  Such,  for  instance,  is  the  caution, 
generally  given  to  juries,  to  place  little  reliance  on  the  testi- 
mony of  an  accomplice,  unless  it  is  confirmed,  in  some  material 
point,  by  other  evidence.  There  is  no  presumption  of  the  com- 
mon law  against  the  testimony  of  an  accomplice;  yet  experience 
has  shown,  that  persons  capable  of  being  accomplices  in  crime 
are  but  little  worthy  of  credit;  and  on  this  experience  the  usage 
is  founded.^  A  similar  caution  is  to  be  used  in  regard  to  mere 
verbal  admissions  of  a  party ;  this  kind  of  evidence  being  subject 


1  See  2  Stark.  Eyid.  6S4;  6  Law  Mag.  370.  This  subject  has  been  very  successfully 
illustrated  by  Mr.  Wills,  iu  his  "  Essay  on  the  Rationale  of  Circumstantial  Evidence," 
passim. 

2  See  infra,  §§  380,  381. 


{a)  It  has  been  claimed  in  certain 
liquor  cases  that  a  sale  by  a  clerk  or  bar- 
keeper raises  a  presumption  of  fact  that 
the  sale  is  authorized  by  the  principal  or 
master.  This  point  was  discussed  in  Com. 
V.  Briant,  142  Mass.  463,  and  the  Court 
held  that  such  a  sale  was  prima  feme  evi- 
dence of  such  authorization,  using  this 
language:  "Although  we  sliould  admit 
that  a  jury  might  be  warranted  in  inferring 
that  such  a  sale  was  authorized,  it  would 
not  follow  that  a  Court  could  rule  that 
there  is  a  presumption  of  fact  that  it  was 
so.  The  proposition  that  there  is  evidence 
for  the  jury  to  consider,  is  not  identical 
with  the  proposition  tliat  the  evidence  if 
believed  raises  a  jtresumjition  of  fact.  The 
proposition  that  there  is  evidence  to  be 
considered,  imports  that  there  may  be  a 
presumption  of  fact.  But  generally  it 
must  be  left  to  the  jury  to  say  whether 
there  is  one,  and  in  many  cases  that  is  the 
main  question  they  have  to  decide." 

This  case  is  followed  in  Com.  v.  Steven- 
son, 142  Mass.  466,  deciding  the  same 
point,  that  instructions  to  the  jury  that  a 
sale  to  a  minor  by  a  bartender,  in  the 
course  of  his  mastei's  lawful  business, 
raises  a  presumption  of  fact  that  the  mas- 
ter authorized  the  sale,  is  incorrect.  In 
the  later  case  of  Com.  v.  Hayes,  145  Mass. 
289,  the  same  rule  was  affirmed,  and  it 
was  held  that  such  a  sale  is  evidence  which 


will  warrant  the  jury  in  finding  that  it 
was  authorized;  but  there  is  no  i)resump- 
tion  about  it ;  the  whole  question  is  one  of 
fact  for  the  jury. 

A  rule  of  law  is  established  by  statute 
in  Massachusetts  by  which  the  report  of 
an  auditor  is  prima  facie  evidence  of  the 
facts  therein  found,  and  the  party  in 
whose  favor  it  is,  need  not  adduce  other 
evidence  of  his  case  until  the  report  is  con- 
tradicted by  the  other  side.  The  auditor's 
report,  however,  does  not  change  the  bur- 
den of  proof,  which,  after  the  evidence  is 
all  in,  remains  on  the  person  on  whom  it 
was  in  the  beginning.  Phillips  v.  Cornell, 
133  Mass.  546. 

If  the  auditor  reports  subordinate  facts 
and  evidence  as  well  as  his  findings  of 
fact,  the  jury  may  find  differently  from 
him  although  no  other  evidence  is  ]>ut  in, 
and  the  party  against  whom  the  auditor 
finds  therefore,  has  the  right  in  anj'  case  to 
demand  that  the  report  be  submitted  to 
the  jury,  and  can  except,  if  the  court  takes 
the  case  from  the  jury.  Peaslee  v.  Ross, 
143  Mass.  275. 

The  auditor  is  a  competent  witness  to 
testify  to  the  statements  of  witnesses  be- 
fore him  when  it  is  necessary  to  contradict 
their  testimony  in  court,  by  showing  that 
they  had  previously  made  inconsistent 
statements.  Tobin  v.  Jones,  143  ]\Iass. 
448. 


6S  LAW   OF   EVIDENCE.  [PART   I. 

to  much  imperfection  and  mistake. ^  Thus,  also,  though  lapse  of 
time  docs  not,  of  itself,  furnish  a  conclusive  legal  bar  to  the  title 
of  the  sovereign,  agreeably  to  the  maxim,  "nullum  tempus  oc- 
currit  regi ; "  yet,  if  the  adverse  claim  could  have  had  a  legal 
commencement,  juries  are  instructed  or  advised  to  presume  such 
commencement,  after  many  years  of  uninterrupted  adverse  pos- 
session or  enjoyment.  Accordingly,  royal  grants  have  been  thus 
found  by  the  jury,  after  an  indefinitely  long-continued  peaceable 
enjoyment,  accompanied  by  the  usual  acts  of  ownership. -"^  So, 
after  less  than  forty  years'  possession  of  a  tract  of  land,  and 
proof  of  a  prior  order  of  council  for  the  survey  of  the  lot,  and  of 
an  actual  survey  thereof  accordingly,  it  was  held,  that  the  jury 
were  properly  instructed  to  presume  that  a  patent  had  been  duly 
issued.'*  (rt)  In  regard,  however,  to  crown  or  public  grants,  a 
longer  lapse  of  time  has  generally  been  deemed  necessary,  in 
order  to  justify  this  presumption,  than  is  considered  sufficient  to 
authorize  the  like  presumption  in  the  case  of  grants  from  private 
persons. 

§  -40.  Conveyances.  Juries  are  also  often  instructed  or  advised, 
in  more  or  less  forcible  terms,  to  presume  conveyances  between 
private  individuals,  in  favor  of  the  party  who  has  proved  a  right 
to  the  beneficial  enjoyment  of  the  property,  and  whose  possession 
is  consistent  with  the  existence  of  such  conveyance,  as  is  to  be 
presumed ;  especially  if  the  possession,  without  such  conveyance, 
would  have  been  unlawful,  or  cannot  be  satisfactorily  explained.^ 

2  Earle  v.  Picken,  5  C.  &  P.  542,  n.  ;  Rex  v.  Simons,  6  C.  &  P.  540  ;  Williams  v. 
Williams,  1  Hagg.  Consist.  304.     See  infra,  under  the  head  of  Admissions,  §  200. 

3  Rex  V.  Brown,  cited  Cowp.  110  ;  Mayor  of  Kingston  v.  Horner,  Cowp.  102  ; 
Eldridge  v.  Knott,  Cowp.  215;  Mather  u.  Trinity  Church,  3  S.  &  R.  509;  Roe  v.  Ire- 
land,  11  East,  280;  Read  v.  Brookman,  3  T.  R.  159;  Goodtitle  v.  Baldwin,  11  East, 
488;  2  Stark.  Evid.  672. 

4  Jackson  v.  M'Call,  10  Johns  377.  "  Si  prohet  possessionem  excedentem  me- 
moriam  hominum,  habet  vim  tituli  et  privilegii,  etiam  a  Principe.  Et  haec  est  differ- 
entia inter  possessionem  xxx.  vel.  xl.  annorura,  et  non  memorabilis  temporis  ;  quia 
per  illam  acquiritur  non  directum,  sed  utile  dominium;  per  istam  autem  directum." 
Mascard.  De  Pro  bat.  vol.  i.  p.  239,  Concl.  199,  n.  11,  12. 

1  The  rule  on  this  subject  was  stated  by  Tindal,  C.  J.,  in  Doe  v.  Cooke,  6  Bing. 
174,  179.     "  No  case  can  be  put,"  says  he,  "  in  which  any  presumption  has  been  made, 

{a)  This  presumption  is  stated  by  Mr.  where  a  grant  was  implied  against  the 

Stephen,  Dig.  Evid.  art.  100,  without  com-  sovereign   in   England  has  been  made  in 

menting  on  the  question  whether  it  is  a  Doe  v.  Wilson,  10  Moo.  P.  C.  502;  O'Neill 

presumption  of  fact  or  law.     The  Courts,  v.   Allen,  9  Ir.  C.  L.    132  ;  Att.-Cen.   r. 

however,  still  use  the  same  language,  that  Ewelme  Hospital,  17  Beav.  366  ;  Mayor  of 

"  the  jury  will  be  allowed  "  or  "advised  "  or  Exeter  v.  Warren,  5  Q.  B.  773,  801.     And 

"  instructed  "  to  presume  a  grant,  showing  the  same  principle  has  been  ui)held  in  the 

that  the  presumption  has  not  yet  become  United  States  in  favor  of  the  individual 

obligatory  as  a  presumption  of  law.     Lit-  as  against  the  State.     State  v.  Wright,  41 

tie  V.  Wingfield,  11  Ir.  C.  L.  63;  Carter  v.  N.  J.  L.  478.     See  also  Calmady  v.  Rowe, 

Tinicum  Fishing  Co.,  77  Pa.  St.  310.  6  C.  B.  861;  Beaufort  v.  Swan,  3  Ex.  413; 

Application  of  the  presumption  to  cases  Healey  v.  Thorne,  4  Ir.  R.  C.  L.  495. 


CHAP.   IV.]  OP  PRESUMPTIVE   EVIDENCE.  69 

This  is  done  in  order  to  prevent  an  apparently  just  title  from 
being  defeated  by  matter  of  mere  form.  Thus,  Lord  Mansfield 
declared  that  he  and  some  of  the  other  judges  had  resolved  never 
to  suffer  a  plaintiff  in  ejectment  to  be  nonsuited  by  a  term,  out- 
standing in  his  own  trustees,  nor  a  satisfied  term  to  be  set  up  by 
a  mortgagor  against  a  mortgagee;  but  that  they  would  direct  the 
jury  to  presume  it  surrendered.  ^  Lord  Kenyon  also  said,  that 
in  all  cases  where  trustees  ought  to  convey  to  the  beneficial 
owner,  he  would  leave  it  to  the  jury  to  presume,  where  such  pre- 
sumption could  reasonably  be  made,  that  they  had  conveyed  ac- 
cordingly. ^  After  the  lapse  of  seventy  years,  the  jury  have  been 
instructed  to  presume  a  grant  of  a  share  in  a  proprietary  of  lands, 
from  acts  done  by  the  supposed  grantee  in  that  capacity,  as  one 
of  the  proprietors.'*  The  same  presumption  has  been  advised  in 
regard  to  the  reconveyance  of  mortgages,  conveyances  from  old 
to  new  trustees,  mesne  assignments  of  leases,  and  any  other  spe- 
cies of  documentary  evidence,  and  acts  in  pais,  which  is  necessary 
for  the  support  of  a  title  in  all  other  resoects  evidently  just.^  It 
is  sufficient  that  the  party,  who  asks  for  the  aid  of  this  presump- 
tion, has  proved  a  title  to  the  beneficial  ownership,  and  a  long 
possession  not  inconsistent  therewith;  and  has  made  it  not  un- 

except  where  a  title  has  beeu  shown,  by  the  party  who  calls  for  the  presumption,  good 
in  substance,  but  wanting,'  some  collateral  matter,  necessary  to  make  it  complete  in 
point  of  form.  In  such  case,  where  the  possession  is  shown  to  have  beeu  consistent 
with  the  fact  directed  to  be  presumed,  and  in  such  cases  only,  has  it  ever  been  allowed." 
And  he  cites  as  examples.  Lade  v.  Holford,  Bull.  N.  P.  110;  England  v.  Slade,  4  T.  R. 
682;  Doe  v.  Sybourn,  7  T.  R.  2;  Doe  v.  Hilder,  2  B.  &  Aid,  782;  Doe  v.  Wrighte,  Id. 
710.     See  Best  on  Presumptions,  pp.  144-169. 

2  Lade-y.  Holford,  Bull.  N.  P.  110. 

8  Doe  V.  Sybourn,  7  T.  R.  2  ;  Doe  v.  Staple,  2  T.  R.  696.  The  subject  of  the 
presumed  surrender  of  terms  is  treated  at  large  in  Mathews  on  Presumjit.  Evid.  c.  13, 
pp.  226-259,  and  is  ably  expounded  by  Sir  Edw.  Sugden,  in  his  Treatise  on  Vendors 
and  Purchasers,  c.  15,  §  3,  vol.  iii.  pp.  24-67,  10th  ed.  See  also  Best  on  Presumptions, 
§§  113-122. 

*  Farrar  v.  Merrill,  1  Greenl.  17.  A  by-law  may,  in  like  manner,  be  presumed. 
Bull.  N.  P.  211.     The  case  of  Corporations,  4  Co.  78  ;  Cowp.  110. 

s  Emery  v.  Orocock,  6  Madd.  54  ;  Cooke  v.  Soltau,  2  Sim.  &  Stu.  154  ;  Wilson  v. 
Allen,  1  Jac.  &  W.  611,  620  ;  Roe  v.  Reade,  8  T.  R.  118,  122;  White  v.  Foljambe, 
11  Ves.  350  ;  Keene  v.  Deardon,  8  East,  248,  266  ;  Teuny  v.  Jones,  3  M.  &  Scott,  472; 
Roe  V.  Lowe,  1  H.  Bl.  446,  459  ;  Van  Dyck  v.  Van  Beuren,  1  Caines,  84  ;  Jackson  v. 
Murray,  7  Johns.  5  ;  4  Kent,  Comm.  90,  91  ;  Gray  v.  Gardiner,  3  Mass.  399 ;  Knox 
V.  Jenks,  7  Mass.  488  ;  Society,  &c.  v.  Young,  2  N.  H.  310  ;  Colman  v.  Anderson,  10 
Mass.  105  ;  Pejepscot  Proprietors  v.  Ranson,  14  Mass.  145  ;  Bergen  v.  Bcnnet,  1  Caines 
Cas.  1  ;  Blossom  v.  Cannon,  14  Mass.  177  ;  Battles  v.  Holley,  6  Greenl.  145  ;  Lady 
Dartmouth  v.  Roberts,  16  East,  334,  339  ;  Livingston  v.  Livingston,  4  Johns.  Ch.  287; 
Whether  deeds  of  conveyance  cau  be  presumed,  in  cases  where  the  law  has  made  pro- 
vision for  their  registration,  has  been  doubted.  The  point  was  argued,  but  not  decided, 
in  Doe  v.  Hirst,  11  Price,  475.  And  see  24  Pick.  322.  The  better  opinion  .seems  to 
be  that  though  the  court  will  not,  in  such  case,  presume  the  existence  of  a  deed  as  a 
mere  inference  of  law,  yet  the  fact  is  open  for  the  jury  to  find,  as  in  other  cases.  See 
Rex  V.  Long  Buckby,  7  East,  45  ;  Trials  per  Pais,  237  j  Finch,  400 ;  Valentine  v. 
Piper,  22  Pick.  85,  93,  94. 


70 


LAW   OF   EVIDENCE. 


[part  I. 


reasonable  to  believe  that  the  deed  of  conveyance,  or  other  act 
essential  to  the  title,  was  duly  executed.  Where  these  merits  are 
wanting,  the  jury  are  not  advised  to  make  the  presumption. ^  (a) 

§  47.  Personalty.  The  same  principle  is  applied  to  matters 
belonging  to  the  personalty.  Thus,  where  one  town  after  being 
set  off  from  another,  had  continued  for  fifty  years  to  contribute 
annually,  to  the  expense  of  maintaining  a  bridge  in  the  parent 
town,  this  was  held  sufficient  to  justify  the  presumption  of  an 
agreement  to  that  effect.  ^     And,  in  general,  it  may  be  said  that 

6  Doe  V.  Cooke,  6  Bing.  174,  per  Tindal,  C.  J.  ;  Doe  v.  Reed,  5  B.  &  A.  232  ; 
Livett  V.  Wilson,  3  Bing.  115  ;  Schauber  v.  Jackson,  2  Wend.  14,  37  ;  Hepburn  v. 
Auld,  5  Cranch,  262  ;  Valentine  v.  Piper,  22  Pick.  85.  This  rule  has  been  applied 
to  possessions  of  divers  lengths  of  duration  ;  as,  fiftv-two  years,  Ryder  v.  Hathaway, 
21  Pick.  298;  fifty  years,  Melvin  v.  Prop'rs  of  Locks,  &e.,  16  Pick.  137  ;  17  Pick. 
255,  s.  c.  ;  thirty-tliree  years.  White  v.  Loring,  24  Pick.  319  ;  thirty  years,  McN"air  v. 
Hunt,  5  Mo.  300  ;  twenty-six  years,  Xewman  v.  Studley,  Id.  291  ;  twenty  years,  Brat- 
tle-Square Church  V.  Bullard,  2  Met.  363  ;  but  the  latter  period  is  held  suiiicient. 
The  rule,  however,  does  not  seem  to  depend  so  much  upon  the  mere  lapse  of  a  definite 
period  of  time  as  upon  all  the  circumstances,  taken  together  ;  the  question  being  ex- 
clusively for  the  jury. 

1  Cambridge  v.  Lexington,  17  Pick.  222.  See  also  Grote  v.  Grote,  10  Johns,  402  ; 
Schauber  v.  Jack.son,  2  Wend.  36,  37. 


(«)  In  the  later  English  cases  and  in 
the  United  States,  this  presumption  has 
been  fully  recognized.  A  presumption  of 
this  kind  has  been  made  several  times  in 
favor  of  a  grant  of  a  right  of  fishing, 
where  the  beneficial  enjoyment  has  been 
proved.  Little  v.  Wingfield,  11  Ir.  C.  L. 
63  ;  Leconfield  v.  Lonsdale,  L.  R.  5  C.  P. 
657  ;  Carter  v.  Tinieuni  Fishing  Co.,  77 
Pa.  St.  310.  Cf.  Mills  v.  Mayor,  L.  R.  2 
C.  P.  476.  And  in  general,  the  enjoy- 
ment of  an  easement  or  incorporeal  here- 
ditament for  a  long  period  of  time  is  evi- 
dence for  the  jury  of  an  original  grant  of 
the  right,  although  no  statute  of  limita- 
tion applies.  Kingston  v.  Leslie,  10  S.  & 
R.  (Pa.)  333  ;  Rooker  v.  Perkins,  14  Wis. 
79  ;  Edson  v.  Munsell,  10  Allen  (Ma.ss.), 
557  ;  Nichols  v.  Boston,  98  Mass.  39  ; 
Briggs  V.  Prosser,  14  Wend.  (N.  Y. )  227  ; 
Munro  v.  Merchant,  26  Barb.  (N.  Y.) 
383 ;  Attornev-General  v.  Proprietors,  &(\, 
3  Gray  (Mass".),  1.  pp.  62-65  ;  St.  Mary's 
College  V.  Attorney-General,  3  Jur.  n.  .s. 
675.  On  the  same  principle,  where  several 
mill  i^rivileges  were  originally  owned  to- 
gether, but  afterwards,  for  a  long  series  of 
years,  held  in  severalty  by  diffei'ent  per- 
sons, and  from  time  to  time  transferred  by 
these  owners  in  .severalty  to  others,  there 
is  a  presutn[)tion  of  an  ancient  partition  of 
the  property  among  the  proprietors.  Mun- 
roe  V.  Gates,  48  Me.  463.  So  where  each 
one  of  several  joint  owners  of  land  takes 
into  his  possession  separate  parcels  of  the 
land,  and  for  many  years  this  separate  pos- 


session continues,  this  fact  gives  rise  to  a 
presumption  of  a  deed  of  partition.  Rus- 
sell V.  Marks,  3  Mete.  (Ky.)  37.  So  it 
was  held  in  Missouri,  that  when  a  slave 
had  for  many  years  been  treated  as  free, 
a  deed  of  manumission  would  be  presumed. 
Lewis  V.  Hart,  33  Mo.  535.  A  grant, 
however,  will  not  be  presumed  when  the 
pos.se.ssion  is  explained  by  evidence  show- 
ing that  such  possession  was  taken  in 
virtue  of  some  title  inconsistent  with  that 
which  is  sought  to  be  proved  by  such 
possession.  Colvin  v.  Warford,  20  Md. 
357  ;  or  by  proof  of  the  contents  of  the 
deed  under  which  posses.sion  was  in  fact 
taken  (Xicto  v.  Carpenter,  21  Cal.  455. 
Cf.  Grimes  v.  Bastrop,  26  Tex.  310)  ;  or 
proof  that  the  enjoyment  of  the  right 
claimed  was  resisted  continuously  by  the 
person  whose  interests  it  infringed.  Field 
V.  Brown,  24  Gratt.  (Va.)  74. 

The  presumption  does  not  arise,  more- 
over, where  the  exercise  of  the  right  is 
secret,  so  that  no  interruption  of  the  ex- 
ercise by  such  person  would  naturally 
occur.  Thus,  when  one  claims  the  right 
to  the  enjoyment  of  water  percolating  pr 
filtrating  through  adjoining  lands  to  sup- 
ply a  well  in  his  own  lands,  no  enjoyment 
of  the  right  gives  rise  to  the  presump- 
tion. Chasemore  v.  Richards,  7  H.  L.  C. 
349  ;  Roath  v.  Dri.scoll,  20  Conn.  533  ; 
Wheatley  v.  Baugh,  25  Pa.  St.  528  ;  Fra- 
zier  V.  Brown,  12  Ohio  St.  294  ;  Stephen 
Dig.  Evid.  ait.  100. 


CHAP.    IV.] 


OP    PRESUMPTIVE    EVIDENCE. 


71 


long  acquiescence  in  any  adverse  claim  of  right  is  good  ground, 
on  which  a  jury  may  presume  that  the  claim  had  a  legal  com- 
mencement ;  since  it  is  contrary  to  general  experience  for  one 
man  long  to  continue  to  pay  money  to  another,  or  to  perform  any 
onerous  duty,  or  to  submit  to  any  inconvenient  claim,  unless  in 
pursuance  of  some  contract,  or  other  legal  obligation. 

§  48.  Scope  of  this  class  of  presumptions.  In  fine,  this  class  of 
presumptions  embraces  all  the  connections  and  relations  between 
the  facts  proved  and  the  hypothesis  stated  and  defended,  whether 
they  are  mechanical  and  physical,  or  of  a  purely  moral  nature. 
It  is  that  which  prevails  in  the  ordinary  affairs  of  life,  namely, 
the  process  of  ascertaining  one  fact  from  the  existence  of  another, 
without  the  aid  of  any  rule  of  law ;  and,  therefore,  it  falls  within 
the  exclusive  province  of  the  jury,  who  are  bound  to  find  accord- 
ing to  the  truth,  even  in  cases  where  the  parties  and  the  court 
would  be  precluded  by  an  estoppel,  if  the  matter  were  so  pleaded. 
They  are  usually  aided  in  their  labors  by  the  advice  and  instruc- 
tions of  the  judge,  more  or  less  strongly  urged,  at  his  discretion ; 
but  the  whole  matter  is  free  before  them,  unembarrassed  by  any 
considerations  of  policy  or  convenience,  and  unlimited  by  any 
boundaries  but  those  of  truth,  to  be  decided  by  themselves,  ac- 
cording to  the  convictions  of  their  own  understanding,  (a) 


(a)  The  geiiei-al  tendency  of  the  modern 
decisions  on  the  subject  of  presumptions 
is  to  restrict  the  number  of  those  which 
take  questions  of  fact  from  the  considera- 
tion of  the  jury.  The  division  of  pre- 
sumptions into  three  classes ;  Conchisive 
and  Kebuttalile  of  Law,  and  Presum])tions 
of  Fact,  is  still  adopted  by  the  courts  and 
text  writers.  In  regard  to  Conchisive 
Presumptions,  Mr.  Wharton  goes  8o  far  as 
to  say  that  while  the  class  is  still  said  to 
exist,  no  perfect  individuals  of  the  class 
can  be  found.  Wharton,  Grim.  Evid.  8th 
ed.  §  711.  Sir  Fitz-James  Stephen  de- 
scribes it  under  the  head  of  conclusive 
proof,  as  evidence  upon  the  production  of 
which,  or  a  fact  upon  the  proof  of  whicli, 
the  judge  is  bound  by  law  to  regard  some 
fact  as  proved,  and  to  exclude  evidence 
intended  to  disprove  it.  Stephen,  Dig. 
Evid.  art.  I.  There  are  numerous  lulcs  or 
maxims  nf  law,  however,  which  are  occa- 
sionally put  by  the  Judges  in  the  form  of 
conclusive  presumptions,  although  in  real- 
ity they  are  positive  rules  of  law.  For 
instance,  it  is  often  said  that  every  man  is 
conclusively  presumed  to  know  the  law. 
Ante,  §  34  note.  So,  the  so-called  pre- 
sumptions in  regard  to  the  criminal  re- 
sponsibility of  infants  {ante,  §  28)  are  in 


reality  positive  limits  to  the  field  of  crim- 
inal responsibility  and  should  form  no 
part  of  the  law  of  evidence.  So,  the  va- 
rious statutes  of  limitation,  although  in- 
cluded by  Mr.  Greenleaf  among  conclusive 
presumptions  {ante,  §  16)  are  positive  rules 
of  law.  So  title  by  prescription  (ante,  §  17) 
belongs  rather  to  the  law  of  Real  Property 
than  of  Evidence. 

Rebuttable  Presumptions.  This  class 
has  been  defined  as  follows :  "  A  presump- 
tion means  a  rule  of  law  that  Courts  and 
Judges  shall  draw  a  particular  inference 
from  a  particular  fact  or  from  particular 
evidence,  unless  and  until  the  truth  of 
such  inference  is  disproved."  Stephen, 
Digest  of  Evidence,  art.  I.  The  rebut- 
table presumption  of  law  differs  from  a  pre- 
sumption of  fact  or  ordinary  inference, 
such  as  men  would  naturally  draw  from 
facts  proved,  in  the  following  respects  :  — 

1.  A  presumption  of  law  derives  its 
force  from  law,  while  the  presumption  of 
fact  derives  its  force  from  logic.  It  is  true 
that  most  of  the  presumptions  of  law  have 
some  logical  weight,  but  that  they  do  not 
derive  their  force  from  it  is  shown  by  the 
fact  that  some  of  them  have  no  such  logi- 
cal weight.  Take,  for  instance,  the  pre- 
sumption of  innocence.     It  is  hard  to  say 


72 


LAW   OF   EVIDENCE. 


[part  I. 


that  there  is  any  inherent  probability  that 
a  person  who  has  been  regarded  witli  such 
suspicion  as  to  cause  his  arrest,  and,  after 
a  preliminary  examination  before  a  magis- 
trate, his  imjirisonment,  and  then  his  pre- 
sentment by  the  grand  jury,  is  innocent  of 
the  offence  with  which  he  is  charged,  yet 
there  is  a  rebuttable  presumption  of  law 
that  he  is  innocent.  Or  take  the  case  of 
the  presumption  created  by  statute,  that 
a  vessel  which  leaves  New  York  harbor 
without  having  a  licensed  pilot  on  board 
shall  be  presumed  to  be  unseaworth}'. 
N.  Y.  Laws  1857,  ch.  242  ;  Borland  v. 
ilercantile  M.  Ins.  Co.,  46  N.  Y.  Super.  Ct. 
433.  There  can  hardly  be  said  to  be  any 
probability  that  such  a  vessel  is  not  sca- 
trorthy  because  she  has  not  a  pilot  on 
board.  Or  a  statute  that  one  who  carries 
concealed  weapons  is  to  be  presumed  to 
carry  them  with  evil  intent.  No  one  in 
these  times  could  affirm  any  probability 
in  that. 

2.  A  presumption  of  law  applies  to  a 
class,  a  presumption  of  fact  to  individual 
cases.  It  is  hardly  necessary  to  illustrate 
this.  Take  the  presumption  of  death  from 
seven  years'  unexplained  absence,  Wlicn- 
ever  this  absence  is  proved,  the  presump- 
tion of  death  attaches.  But  if  in  any 
sjKcial  case,  it  is  desired  to  prove  a  death 
at  any  precise  time,  within  the  seven 
years,  the  fact  of  death  must  be  proved 
by  showing  the  age,  constitution,  health, 
worldly  condition,  of  the  person  in  fjues- 
tion,  when  he  was  last  heard  from  and  in 
what  circumstances.  Re  Phene's  Trusts 
L.  R.  5  Ch.  139  ;  In  re  Lewes's  Trusts,  L. 
R.  11  Eq.  236  ;  6  Ch.  356. 

3.  It  is  obligatory  on  juries  to  find  in 
favor  of  the  party  who  is  supported  by  a 
presumption  of  law  in  the  absence  of  op- 
posing evidence,  while  juries  may  or  may 
not  regard  a  presumption  of  fact  as  of 
sufficient  weight  to  base  a  verdict  upon. 
Com.  V.  Hayes,  145  Mass.  289  ;  Com.  v. 
Briant,  142  Mass.  463. 

4.  A  presumption  of  law  is  drawn  by 
the  Court,  and  presumptions  of  fact  are 
drawn  by  the  jury  only.  Best,  Evid.  ubi 
supra. 


Presumptions  of  Fad.  Presumptions 
of  fact  are  the  class  from  which  almost  all 
the  presumptions  of  law,  whether  rebut- 
table or  conclusive,  have  been  drawn.  A 
jjresumption  of  fact  is  an  inference  which 
a  reasonable  man  would  draw  from  certain 
facts  which  have  \)een  proved  to  him.  Its 
basis  is  in  logic,  its  source  is  probability  ; 
it  rests  on  the  observed  connection  be- 
tween facts,  and  it  requires  no  law  nor 
Court  to  give  it  force. 

These  presumptions  of  fact  are  in  real- 
ity the  same  thing  as  the  inference  which 
lenders  circumstantial  evidence  admissi- 
ble, and  the  remarks  which  have  been 
made  in  regard  to  circumstantial  evidence 
are  equally  applicable  to  presumptions. 
See  ante.  Circumstantial  Evidence,  §  13  a. 
Although  the  inference  must  be  jjlain  and 
strong  to  render  the  circumstances  admis- 
sible, yet  the  jury  are  not  bound  to  regard 
the  inference,  when  the  facts  are  admitted 
and  before  them.  E.  g.,  in  Briggs  v.  Her- 
vey,  130  Mass.  187,  Morton,  J.,  says:  "The 
depositing  in  the  post-office  of  a  letter 
properly  addressed,  with  the  postage  pre- 
paid, is,  prima  facie  evidence  that  the  per- 
son to  whom  it  was  addressed  received  it. 
The  evidence  that  letters  were  so  deposited 
was  competent,  and  should  have  been  sub- 
mitted to  the  jury  to  be  weighed  by  them 
in  connection  with  the  other  evidence  in 
the  case.  They  alone  have  the  right  to 
decide  whether  the  inference  that  the  let- 
ters were  received,  founded  upon  the  prob- 
ability that  the  officers  of  the  government 
will  do  their  duty,  and  that  letters  wiU  be 
duly  delivered,  is  overcome  by  the  other  evi- 
dence."    Ante  §  36. 

In  short,  what  is  a  presumption  of  fact 
is  well  summed  up  by  Lord  Hatherley  in 
Gardner  v.  Gardner,  L.  R.  2  App.  Cas.  723, 
p.  734.  "We  are  to  look  upon  these  so- 
called  presumptions  simply  as  deductions 
which  sensible  men  make  from  the  facts 
which  are  laid  before  them  as  evidence, 
open  therefore  to  rebuttal,  by  the  same 
class  of  evidence  —  that  is  to  say,  oral  tes- 
timony —  as  that  by  which  the  proposi- 
tions they  are  supposed  to  point  to  are 
demonstrated  and  proved. 


PART  11. 


OF    THE    RULES   WHICH    GOVERN    THE    PRODUCTION 
OF    TESTIMONY. 


PART  11. 

OF  THE  RULES  WHICH   GOVERN   THE  PRODUCTION  OF 
TESTIMONY. 


CHAPTER   I. 

OP   THE   RELEVANCY   OP    EVIDENCE. 

§  49.  Functions  of  judge  and  jury.  In  trials  of  fact,  without 
the  aid  of  a  jury,  the  question  of  the  admissibility  of  evidence, 
strictly  speaking,  can  seldom  be  raised;  since,  whatever  be  the 
ground  of  objection,  the  evidence  objected  to  must,  of  necessity, 
be  read  or  heard  by  the  judge,  in  order  to  determine  its  character 
and  value.  In  such  cases,  the  only  question,  in  effect,  is  upon 
the  sufficiency  and  weight  of  the  evidence.  But  in  trials  by  jury, 
it  is  the  province  of  the  presiding  judge  to  determine  all  ques- 
tions on  the  admissibility  of  evidence  to  the  jury ;  as  well  as  to 
instruct  them  in  the  rules  of  law,  by  which  it  is  to  be  weighed. 
Whether  there  be  any  evidence  or  not  is  a  question  for  the  judge ; 
whether  it  is  sufficient  evidence  is  a  question  for  the  jury.  ^  (a) 

1  Per  Buller,  J.,  in  Carpenter  v.  Hay  ward,  Dong.  360.  And  see  Best's  Piinciples 
of  Evidence,  §§  7G-86.     The  notion  that  the  jury  have  the  right,  in  any  ease,  to  deter- 

(a)  Chandler  v.  Von  Roeder,  24  How.  is  by  no  means  conceded.  See  Alb.  L.  J. 
(U.  S.)  224;  Cloughr.  State,  7  Neb.  320.  10,  33,  78;  Green's  Cr.  Law  R.  vol.  ii. 
Relevancy  to  the  issue  is  the  test  of  ad-  p.  226  n.  There  is  in  every  case  triable 
missibility.  With  the  weight  of  evidence  by  jury  a  preliminary  question  of  law  for 
the  judge  cannot  concern  himself,  except  the  court,  whether  or  not  there  is  any  evi- 
in  certain  cases,  where  the  testimony  comes  dence  from  which  the  fact  sought  to  be 
from  tainted  sources,  as  in  the  case  of  ac-  proved,  may  be  fairly  inferred  ;  if  there  is, 
complices  and  false  witnesses,  where  he  that  is  sufficient  to  send  the  case  to  the 
may  caution  but  cannot  exclude.  Under-  jury,  no  matter  how  strong  ma}'  be  the 
wood  V.  McVeigh,  23  Gratt.  (Va. )  409  ;  proofs  to  the  contrary.  School  Furniture 
Paulette  v.  Brown,  40  Mo.  .^2  ;  Callanan  Co.  v.  Warsaw  School  Dist.,  122  Pa.  St. 
V.  Shaw,  24  Iowa,  441  ;  Mead  v.  McGraw,  501 ;  and,  moreover,  although  it  is  the  right, 
19  Ohio  St.  .'55  ;  Blanchard  v.  Pratt,  37  111.  and  in  some  cases  it  becomes  the  duty  of  the 
243.  And  see  also  post,  §  380.  In  United  judge  to  express  his  opinion  upon  the  char- 
States  V.  Anthony,  U.  S.  Dist.  Ct.  North,  acter  and  weight  of  the  testimony  which. 
N.  Y.,  Mr.  Justice  Hunt  directed  the  jury,  he  must  submit  to  the  jury,  it  should  be 
upon  the  evidence,  to  return  a  verdict  of  done  in  such  a  manner  as  to  leave  them 
guilty,  every  fact  in  the  case  being  undis-  in  possession  of  the  question  that  belongs 
puted,  —  a  direction  the  propriety  of  which  to  them.     If,  notwithstanding  the  efforts 


76  LAW   OF   EVIDENCE.  [i'ART   II. 

If  the  decision  of  the  question  of  admissibility  depends  oti  the 
decision  of  other  questions  of  fact,  such  as  the  fact  of  interest, 

mine  questions  of  law,  was  strongly  denied,  and  their  province  defined,  by  Story,  J., 
in  the  United  States  v.  Battiste,  2  Sunin.  243.  "  Before  I  proceed,"  said  he,  "to  the 
merits  of  this  case,  I  wish  to  say  a  few  words  upon  a  point,  suggested  by  the  argument 
of  the  learned  counsel  for  the  prisoner,  upon  which  1  have  had  a  decided  opinion  dur- 
ing my  whole  professional  life.  It  is,  that  in  criminal  cases,  and  especially  in  capital 
cases,  the  jury  are  the  judges  of  the  law  as  well  as  of  the  fact,  ily  opinion  is,  that  the 
jury  are  no  more  judges  of  the  law  in  a  capital  or  other  criminal  case,  upon  a  plea  of 
not  guilty,  than  they  are  in  every  civil  case  tried  upon  the  general  issue.  In  each  of 
these  cases,  their  verdict,  when  general,  is  necessarily  compounded  of  law  and  of  fact, 
and  includes  both.  In  each  they  must  necessarily  determine  the  law,  as  well  as  the 
fact.  In  each  they  have  the  physical  power  to  disregard  the  law,  as  laid  down  to 
them  by  the  court.  But  I  deny  that,  in  any  case,  civil  or  criminal,  they  have  the 
moral  right  to  decide  the  law  according  to  their  own  notions  or  pleasure.  On  the  con- 
trary, I  hold  it  the  most  sacred  constitutional  right  of  every  party  accused  of  a  crime, 
that  the  jury  should  respond  as  to  the  facts,  and  the  court  as  to  the  law.  It  is  the 
duty  of  the  court  to  instruct  the  jury  as  to  the  law  ;  and  it  is  the  duty  of  the  jury  to 
follow  the  law,  as  it  is  laid  down  by  the  court.  This  is  the  right  of  every  citizen  ; 
and  it  is  his  only  protection.  If  the  jury  were  at  liberty  to  settle  the  law  for  them- 
selves, the  effect  would  be,  not  only  that  the  law  itself  would  be  most  uncertain,  from 
the  different  views  which  different  juries  might  take  of  it  ;  but,  in  case  of  error,  there 
would  be  no  remedy  or  redress  by  the  injured  party  ;  for  the  court  would  not  have  any 
right  to  review  the  law,  as  it  had  been  settled  by  the  jury.  Indeed,  it  would  be  almost 
impracticable  to  ascertain  what  the  law,  as  settled  by  the  jury,  actually  was.  On  the 
contrary,  if  the  court  should  err,  in  laying  down  the  law  to  tlie  jury,  there  is  an  adequate 
remedy  for  the  injured  party,  by  a  motion  for  a  new  trial,  or  a  writ  of  error,  as  the 
nature  of  the  jurisdiction  of  the  particular  court  may  require.  Every  person  accused  as  . 
a  criminal  has  a  right  to  be  tried  according  to  the  law  of  the  land,  the  fixed  law  of  the 
land,  and  not  by  the  law  as  a  jury  may  understand  it,  or  choose,  from  wantonness  or 
ignorance,  or  accidental  mistake,  to  interpret  it.  If  I  thought  that  the  jury  were  the 
proper  judges  of  the  law  in  criminal  cases,  I  should  hold  it  my  duty  to  abstain  from 
the  responsibility  of  stating  the  law  to  them  upon  any  such  trial.  But  believing,  as  I 
do,  that  every  citizen  has  a  right  to  be  tried  by  the  law,  and  according  to  the  law  ; 
that  it  is  his  privilege  and  truest  .shield  against  oppression  and  wrong,  —  I  feel  it 
my  duty  to  state  my  views  fully  and  openly  on  the  present  occasion."  The  same  opin- 
ion as  to  the  province  of  the  jury  was  strongly  expressed  by  Lord  C.  J.  Best,  in  Levi 
V.  Mylne,  4  Bing.  195. 

The  same  subject  was  more  fully  considered  in  Commonwealth  v.  Porter,  10  Slet. 
263,  which  was  an  indictment  for  selling  intoxicating  liquors  without  license.  _  At  the 
trial  the  defendant's  counsel,  being  about  to  argue  the  questions  of  law  to  the  jury,  was 
stopped  by  the  judge,  who  ruled,  and  so  instructed  the  jury,  that  it  was  their  duty  to 
receive  the  law  from  the  court,  and  implicitly  to  follow  its  direction  upon  matters 
of  law.  Exceptions  being  taken  to  this  ruling  of  the  judge,  the  point  was  elaborately 
argued  in  bank,  and  fully  considered  by  the  court,  whose  judgment,  delivered  by  Shaw, 
C.  J.,  concluded  as  follows  :  "On  the  whole  subject,  the  views  of  the  court  may  be 
summarily  expres.sed  in  the  following  propositions  :  That,  in  all  criminal  cases,  it  is 
competent  for  the  jury,  if  they  see  fit,  to  decide  upon  all  questions  of  fact  embraced  in 
the  issue,  and  to  refei-  the  law  arising  thereon  to  the  court,  in  the  form  of  a  special  ver- 
dict. But  it  is  optional  with  the  jury  thus  to  return  a  special  verdict  or  not,  and  it  is 
within  their  legitimate  province  and  power  to  return  a  general  verdict,  if  they  see  fit. 

of  the  judge  to  guide  them,  they  disregard  the  evidence  is  contradictory,  or  if  it  fails 

the  evidence  and  the  justice  of  the  cause,  to  present  the  facts  fully,  so  that_ inferences 

he  may  lay  his  hands  upon  their  verdict  are  to  be  drawn,  or  the  credibility  of  wit- 

and  set  it  aside,  but  this  is  the  limit  of  his  nesses  is  to  be  settled,  the  evidence  must 

power  in  all  cases  where  there  is  evidence  go  to  the  jury.     The  value  or  legal  effect 

that  carries   a   question   to  the  jury.     A  of  facts  not  controverted  may  be  determined 

binding  instruction   to   the  jury  is  only  by  the  judge,  but  the  facts  themselves  if 

proper  where  the  evidence  is  not  conflict-  in   doubt   must   be   found   by   the    jury, 

ing,  and  presents  the  facts  on  which  the  Spear  v.  Phil.  Wil.  &  Bait.  R.    R.    Co., 

case  depends  clearly  and  distinctly,  but  if  119  Pa.  St.  69. 


CHAP.    I.]  THE   RRLEVANCY   OF   EVIDENCE.  77 

for  example,  or  of  the  execution  of  a  deed,  these    preliminary 
questions  of  fact  are,  in  the  first  instance,   to  be  tried  by  the 

In  tlms  rendering  a  general  verdict,  the  jury  must  necessarily  pass  upon  the  whole 
issue,  compounded  of  the  law  and  of  the  fact,  and  they  may  thus  incidentally  pass  on 
questions  of  law.  In  forming  and  returning  such  general  verdict,  it  is  within  the  legit- 
imate authority  and  power  of  the  jury  to  decide  detinitely  upon  all  qu(!stions  of  fact 
involved  in  the  issue,  according  to  their  judgment,  upon  the  force  and  elfect  of  the 
comi)etent  evidence  laid  before  them  ;  and  if,  in  the  progress  of  the  trial,  or  in  the 
summing-up  and  charge  to  the  jury,  the  court  should  exi)rcss  or  intimate  any  opinion 
upon  any  sui:h  (picstion  of  fact,  it  is  within  the  legitimate  province  of  the  jury  to  re- 
vise, reconsiiler,  and  decide  contrary  to  such  opinion,  if,  in  their  judgment,  it  is  not 
correct,  and  warranted  by  the  evidence.  But  it  is  the  duty  of  the  court  to  instruct  the 
jury  on  all  questions  of  law  which  a])pear  to  arise  in  the  cause,  and  also  upon  all  ques- 
tions i)ertinent  to  the  issue,  upon  which  either  party  may  request  the  direction  of  the 
court  upon  matters  of  law.  Anil  it  is  the  duty  of  the  jury  to  receive  the  law  from  the 
court,  and  conform  their  judgment  and  decision  to  such  instructions,  as  far  as  they  un- 
derstand them,  in  applying  the  law  to  the  facts  to  be  found  by  them  ;  and  it  is  not 
within  the  legitimate  province  of  the  jury  to  revise,  reconsider,  or  decide  contrary  to 
such  opinion  or  direction  of  the  court  in  matter  of  law.  To  this  duty  jurors  are  bound 
by  a  strong  social  and  moral  obligation,  enforced  by  the  sanction  of  an  oath,  to  the 
same  extent  and  in  the  same  manner  as  they  are  conscientiously  bound  to  decide  all 
questions  of  fact  according  to  the  evidence.  It  is  no  valid  objection  to  this  view  of  the 
duties  of  jurors,  that  they  are  not  amenable  to  any  legal  prosecution  for  a  wrong  de- 
cision in  any  matter  of  law  ;  it  may  arise  from  an  honest  mistake  of  judgment,  in  their 
apprehension  of  the  rules  and  principles  of  law,  as  laid  down  by  the  court,  especially 
in  perjdexed  and  complicated  cases,  or  from  a  mistake  of  judgment  in  ajiplying  them 
honestly  to  the  facts  proved.  The  same  reason  applies  to  the  decisions  of  juries  upon 
questions  of  fact  clearly  within  their  legitimate  powers ;  they  are  not  punishable  for 
deciding  wrong.  The  law  vests  in  them  the  power  to  judge,  and  it  will  presume  that 
they  judge  honestly,  even  though  there  may  be  reason  to  apprehend  that  they  judge 
erroneously  ;  they  cannot,  therefore,  be  held  responsible  for  any  such  decision,  unless 
upon  evidence  which  clearly  establishes  proof  of  corruption,  or  other  wilful  violation 
of  duty.  It  is  within  the  legitimate  power,  and  is  the  duty,  of  the  court  to  superin- 
tend the  course  of  the  trial ;  to  decide  upon  the  admission  and  rejection  of  evidence; 
to  decide  upon  the  use  of  any  books,  papers,  documents,  cases,  or  works  of  supposed 
authority,  which  may  be  offered  upon  either  side ;  to  decide  upon  all  collateral  and  in- 
cidental proceedings  ;  and  to  confine  parties  and  counsel  to  the  matters  within  the  issue. 
As  the  jury  have  a  legitimate  power  to  return  a  general  verdict,  and  in  that  case  must 
pass  upon  the  whole  issue,  this  court  are  of  opinion  that  the  defendant  has  a  right,  by 
himself  or  his  counsel,  to  address  the  jury,  under  the  general  superintendence°of  the 
court,  upon  all  the  material  questions  involved  in  the  issue,  and  to  this  extent,  and  in 
this  connection,  to  address  the  jury  upon  such  questions  of  law  as  come  within  the 
issue  to  be  tried.  Such  address  to  the  jury,  upon  ipiestions  of  law  embraced  in  the 
issue,  by  the  defendant  or  his  counsel,  is  warranted  by  the  long  practice  of  the  courts 
in  this  Commonwealth  in  criminal  cases,  in  which  it  "is  within  the  established  author- 
ity of. a  jury,  if  they  see  fit,  to  return  a  general  verdict,  embracing  the  entire  issue  of 
law  and  fact."  10  Mete.  285-287.  See  also  the  opinion  of  Lord  Mansfield  to  the  snme 
effect,  in  Rex  v.  Dean  of  St.  Asaph,  21  How.  St.  Tr.  1039,  1040  ;  and  of  Mr.  Har- 
grave,  in  his  note,  276,  to  Co.  Lit.  155,  where  the  earlier  authorities  are  cited.  The 
whole  subject,  with  particular  reference  to  criminal  cases,  was  reviewed  with  great 
learning  and  ability  by  Gilchrist,  J.,  and  again  by  Parker,  C.  J.,  in  Pierce's  Case,  13 
N.  H.  536,  where  the  right  of  the  jury  to  judge  of  the  law  was  denied  ;  recently 
affirmed  in  a  very  elaborate  opinion  by  Doe,  J.,  in  State  v.  Hodge,  50  N.  H.  510.  Anil 
see,  accordingly.  People  v.  Pine,  2  Barb.  S.  C.  566  ;  Townsend  v.  State,  2  Blackf.  152 ; 
Davenport  v.  Commonwealth,  1  Leigh,  588  ;  Commonwealth  v.  Garth,  3  Leigh,  761  ; 
Montee  v.  Commonwealth,  3  J.  J.  Marsh.  150  ;  Pennsylvania  v.  Bell,  Addis.  160,  161  ; 
Commonwealth  v.  Abbott,  13  Mete.  123,  124  ;  Hardy  v.  State,  7  Mo.  607  ;  Snow's 
Case,  6  She{)l.  346,  semb.  contra,  (b) 

The  application  of  this  doctrine  to  particular  cases,  though  generally  uniform,  is  not 

(h)  In  State  v.  Croteau,  23  Vt.  14,  the    dissenting,  decided  that  in  criminal  cases 
Supreme  Court  of  Vermont,   Bennett,  J.,     the  jury  has  the  right  to  determine  the 


78  LAW   OF   EVIDENCE.  [pART   II. 

judge ;  though  he  may,  at  his  discretion,  take  the  opinion  of  the 
jury  upon  them,  (c)     But  where  the  question  is  mixed,  consisting 

perfectly  so  where  the  question  is  a  mixed  one  of  law  and  fact.  Thus  the  question  of 
probable  cause  belongs  to  the  court  ;  but  where  it  is  a  mixed  (question  of  law  and  fact 
intimately  blended,  as,  for  exanqde,  where  the  party's  belief  is  a  material  element  in 
the  question,  it  has  been  held  right  to  leave  it  to  the  jury,  with  proper  instructions  as 
to  the  law.  M'Donald  v.  Rooke,  2  Bing.  N.  C.  217  ;  Haddrick  v.  Kaine,  12  Q.  B.  267. 
And  see  Taylor  v.  Willans,  2  B.  &  Ad.  845  ;  6  Bing.  183  ;  (d)  post,  vol.  ii.  §  454. 
The  judge  has  a  right  to  act  upon  all  the  uncontradicted  facts  of  the  case  ;  but  where 
the  ci edibility  of  witnesses  is  in  question,  or  some  material  fact  is  in  doubt,  or  some  in- 
ference is  attempted  to  be  drawn  from  some  fact  not  distinctly  sworn  to,  the  judge 
ought  to  submit  the  question  to  the  jury.  Mitchell  v.  Williams,' 11  M.  &  W.  216,  217, 
per  Alderson,  B. 

In  trespass  de  bonis  asportatis,  the  bona  fides  of  the  defendant  in  taking  the  goods, 
and  the  reasonableness  of  his  belief  that  he  was  executing  his  duty,  and  of  his  suspicion 
of  the  plaintiff,  are  questions  for  the  jury.  Wedge  v.  Berkeley,  6  Ad.  &  El.  663  ;  Haz- 
eldine  v.  Grove,  3  Q.  B.  997  ;  Hughes  v.  Buckland,  15  M.  &  W.  346.  In  a  question 
of  -pedigree,  it  is  for  the  judge  to  decide  whether  the  person  whose  declarations  are  of- 
fered in  evidence  was  a  member  of  the  family,  or  so  related  as  to  be  entitled  to  be  heard 
on  such  a  question.     Doe  v.  Davies,  11  Jur.  607  ;  10  Q.  B.  314. 

The  question,  what  are  usual  covenants  in  a  deed,  is  a  question  for  the  jury,  and 
not  a  matter  of  construction  for  the  court.     Bennett  v.  Womack,  3  C.  &  P.  96. 

In  regard  to  reasonableness  of  time,  care,  skill,  and  the  like,  there  seems  to  have 
been  some  diversity  in  the  ajiplication  of  the  principle  ;  but  it  is  conceded  that, 
"whether  there  has  been,  in  any  particular  case,  reasonable  diligence  used,  or  whether 
unreasonable  delaj'  has  occurred,  is  a  mixed  question  of  law  and  fact,  to  be  decided  by 
the  jury,  acting  under  the  direction  of  the  judge,  ui)on  the  particular  circumstances  of 
each  case."  Mellish  v.  Rawdon,  9  Bing.  416,  per  Tindal,  C.  J.  ;  Nelson  v.  Patrick,  2 
Car.  &  K.  641,  per  Wilde,  C.  J.  The  judge  is  to  inform  the  jury  as  to  the  degree  of 
diligence,  or  care  or  skill  which  the  law  demands  of  the  party,  and  what  duty  it  de- 
volves on  him,  and  the  jury  are  to  find  whether  that  duty  has  been  done.  Hunter  v. 
Caldwell,  11  Jur.  770  ;  10  Q.  B.  69  ;  Burton  v.  Griffiths,  11  M.  &  W.  817  ;  Facey  v. 
Hurdom,  3  B.  &  C.  213  ;  Stewart  v.  Cauty,  8  M.  &  W.  160  ;  Parker  v.  Palmer,  4  B. 
&  Aid.  387  ;  Pitt  v.  Shew,  Id.  206  ;  Mouiit  v.  Larkins,  8  Bing.  108  ;  Phillips  v.  Ir- 

whole  matter  in  issue,  the  law  as  well  as  fendant  for  being  a  common  seller  of  intox- 

the  fact  ;  and  the  same  rule  is  established  icating  liquors,  and  tlie  court  has  decided, 

in  several  other  States.     The  legislature  of  as  appears  by  a  note  of  their  decision  in  the 

Massachusetts,  in  1855  (Acts  1855,  c.  152)  Monthly  Law  Reporter  for  September,  1857 

enacted   "that  in  all  trials  for  criminal  (Commonwealth  v.  Anthes,  20  L.  Pi.  298, 

offences  it  shall  be  the  duty  of  the  juiy  s.  c.  5  Gray,  185),  as  follows  :  "  Upon  the 

to  try,  according  to  established  forms  and  question  whether  this  statute  purports  to 

principles  of  law,  all  causes  which  shall  be  change  the  law  as  already  existing  and  rec- 

committed  to  them,  and,  after  having  re-  oguized  in   Commonwealth  v.   Porter,    10 

ceived  the  instructions  of  the  court,  to  de-  Mete.  263,  the  court  were  equally  divided. 

aide  at  their  discretion,  by  a  general  ver-  But  by  a  majority  of  the  court  it  was  held 

diet,  both  the  fact  and  law  involved  in  the  that,  if  such  change  of  the  law  is  contem- 

issue,  or  to  find  a  special  verdict  at  their  plated  by  the  statute,  the  same  is  void." 

election  ;  but  it  shall  be  the  duty  of  the  This  statute  is  now  repealed.      See  Gen. 

court  to  superintend  the  course  of  the  trials,  Stat.  p.   898.     See  also  State  v.  McDon- 

to  decide  upon  the  admission  and  rejection  nell,  32  Vt.  531-533. 
of  evidence,  and  upon  all  questions  of  law  (c)  The  decision  of  the  judge  upon  such 

raised  during  the  trials,  and  upon  all  col-  preliminary  questions  of  fact  material  to 

lateral  and  incidental  proceedings,  and  also  the  competency  of  evidence  is  final,  and 

to  charge  the  jury  and  to  allow  bills  of  ex-  cannot   he   revised    in   the   court    above, 

ception,  and  the  court  may  grant  a  new  Com.  v.  Gray,  129  Mass.  474;  Walker  v. 

trial  in  cases  of  conviction."     This  act  has  Curtis,  116  Mass.  98. 
been  before  the  Supreme  Judicial  Court  for  (d)  Panton  v.  Williams,  2  Q.  B.  192; 

exposition   and  construction   upon  excep-  Turner  v.   Ambler,   10  Id.  252  ;   West  t'. 

tions  taken  to  the  ruling  of  the  court  below  Baxendale,  9  C.   B.  141;  Lister  v.  Perry- 

in  the  trial  of  an  indictment  against  a  de-  man,   L.  R.  4  H.  L.  521. 


CHAP.    I,] 


THE   RELEVANCY   OP   EVIDENCE. 


79 


of  law  and  fact,  so  intimately  blended  as  not  to  be  easily  sus- 
ceptible of  separate  decision,  it  is  submitted  to  the  jury,  who  are 

ving,  7  M.  &  Gr.  325  ;  Keece  v.  Rigliy,  4  B.  &  Aid.  202.  (e)  But  where  the  dutv  in 
regard  to  time  is  established  by  unit'onu  usage,  and  the  rule  is  well  known  ;  as  in'  the 
case  of  notice  of  the  dishonor  of  a  bill  or  note,  where  the  parties  live  in  the  same  town  • 
or  of  the  duty  of  sending  such  notice  by  the  next  })ost,  packet,  or  other  ship  ;  or  of  the 
reasonable  hours  or  business  hours  of  the  day,  within  which  a  bill  is  to  Ijc  presented, 
or  goods  to  be  delivered,  or  the  like,  —  in  such  cases,  tlie  time  of  the  fact  being  proved, 
its  reasonableness  is  settled  by  the  rule,  and  is  declared  bv  the  judge.  See  Story  on 
Bills,  §§  231-234,  333,  349  ;  post,  vol.  ii.  §§  178,  179,  186-188. 

Whi',ther  by  the  word  "  month,"  in  a  contract,  is  meant  a  calendar  or  lunar  month, 
is  a  question  of  law  ;  but  whether  parties,  in  the  particular  case,  intended  to  use  it  in 
the  one  sense  or  the  other,  is  a  question  for  the  jury,  upon  the  evidence  of  circum- 
stances in  the  case.  Simpson  v.  Margitson,  12  Jur.  155  ;  Lang  v.  Gale,  1  M.  &  S. 
Ill ;  Hutchison  v.  Bowker,  5  M.  &  W.  535  ;  Smith  v.  Wilson,  3  B.  &  Ad.  728  •  Jolly 
V.  Young,  1  Esp.  186  ;  Walker  v.  Hunter,  2  C.  B.  324. 


(e)  The  question  of  the  proper  functions 
of  the  judge  and  jury  in  cases  where  the 
liability  of  the  defendant  is  caused  by  his 
negligence   has   been    discussed   at    great 
length  in  numerous  modern   cases,    espe- 
ciallj'  those  against  railways  and  other  car- 
riers.    The  result  of  the  best  cases  seems 
to  agree  with  the  rule  laid  down  by  Mr. 
Greenleaf  above,  that  the  "judge  is  to  in- 
form the  jury  as  to  the  degree  of  diligence, 
or  care,  or  skill  which  the  law  demands  of 
the  party,  and  what  duty  it  devolves  on 
him,  and  the  jury  are  to  hnd  whether  that 
duty  has  been  done."     In  ordinary  cases 
of  negligence,   however,  the  definition  of 
this  legal  duty  is  in  the  most  general  form, 
and  is  to  the  effect  that  negligence  consists 
in  doing  some  act  which  a  person  of  ordi- 
nary care  and  skill  would  not  do  under  the 
circumstances,  or  in  omitting  to  do  some  act 
which  a  person  of  ordinary  care  and  skill 
would  do  under  the  circumstances.     The 
jury  then  finds  the  negligence  as  a  question 
of  fact.    Bridges  y.  North  London  Ky.  Co., 
L.  K.  7  H.  L.  213  ;   Patrick  v.  Pote,  117 
Mass.  297;  Jackson  v.  Metropolitan  Ry.  Co., 
L.  R.  2  0.  P.  Div.  125;  Pearson  v.  Cox,  Id. 
369;  Ellis  v.  Great  Western  Ry.  Co..  L.  R.  9 
C.  P.  556  ;  Cockle  v.  London,  &c.  Ry.  Co., 
L.  R.  7  Id.  321  ;  Smith  v.  London,  &c.  Ry. 
Co. ,  L.  R.  6  Id.  14  ;  Gaynor  v.  Old  Colony 
R.  R.,  100  Mass.  208  ;  Cook  v.  Union  R.  R. 
Co.,  125  Mass.  57  ;  Lvman  v.  Union  R.  R. 
Co.,  114  Mass.  83  ;  Wheelock  v.  Boston  & 
Albany  R.  R.,  105  Mass.  203  ;  Barden  v. 
Boston,  &c.  R.  R.  Co.,  121  Mass.  426;  Mayo 
V.  Boston  &  Maine  R.   R.  Co.,  104  Mass. 
137  ;  French  v.  Taunton  Branch  R.  R.  Co., 
116  Mass.  537  ;  Pavne  v.  Troy,  &c.  R.  R. 
Co.,  83  jN".  Y.  572  ;"  Philadelphia,  &c.  Ry. 
Co.   V.  Henrice,  92  Pa.  St.  431  ;  Sheff  v. 
Huntington,  16  W.   Va.  307  ;  Hodges  v. 
St.  Louis,  &c.  R.  R.  Co.,  71  Mo.  50  ;' Kan- 
sas Pacific  R.  R.    Co.    v.   Richardson,  25 
Kan.  391  ;  Shafter  v.  Evans,  53  Cal.  32. 


And   it  is   held   that  any  instruction   by 
the  judge  that  specific  facts  do  or  do  not 
constitute  negligence  or  due  care  is  an  in- 
fringement by  the  judge  of  the  province  of 
the  jury.     Thus,  where  the  action  was  by 
a  servant  to  recover  for  a  personal  injury 
caused  by  the  fall  of  an  elevator  used  in  the 
master's  business  for  hoisting  gooils,  and 
upon  which  the  plaintiff  was  ascending  at 
the  time  of  the  injury,  there  was  evidence 
that  the  defendant  had  instructed  his  fore- 
man to  warn  the  men  of  a  rule  of  the  house 
against  going  upon   the    elevator.      The 
judge  instructed  the  jury  that,  if  there  was 
such  a  rule  and  the  foreman  neglected  to 
give  notice  of  it  to  the  men,  it  was  the 
fault  of  a  fellow-servant,  and  the  plaintiff 
could  not  recover.     On  exception  it  was 
held  that  the  questions  whether  any  pre- 
cautions were  required,  and  whether   the 
instructions  given  to  the  foreman  were  a 
sufficient  precaution,  were   for   the  jury. 
Avilla  V.  Nash,  117  Mass.  318.     So  in  the 
leading  case  of  Bridges  v.  North  London 
Ry.  Co.,  supra,  Brett,  J.,  says,  p.  234  : 
"But  the  judge  has  no  legal  right,  either 
directly  or  indirectly,  to  force  upon  the  jury 
his  view  of  any  fact  or  inference  of  fact. 
Yet  he  will  do  so  if  he  states  questions 
of  fact  as  if  they  were  questions  of  law. 
So  where  the  judge  lays  down  that,  if  such 
and  such  things  were  elone  or  omitted  to  be 
done,  there  was  or  was  not  a  want  of  ordi- 
nary care  or  skill,  he  has,  in  my  opinion, 
laid  down  a  proposition  of  fact  and  not  of 
law.     What  men  of  ordinary  care  and  skill 
would  or  would  not  do  under  certain  cir- 
cumstances is  matter  of  experience,  and  so 
of  fact,  which  a  jury  only  ought  to  deter- 
mine."    To  the  same  effect,  Philadelphia, 
&c.  Ry.  Co.  V.   Henrice,  92  Pa.   St.   431  ; 
Eilert  v.  Green    Bay,  &c.  R.  R.    Co.,  48 
Wis.    606.     Although  negligence   is   now 
held  a  question  of  fact,  yet  the  earlier  cases 
speak  of  the  question  of  reasonable  care  as 


80 


LAW   OF   EVIDENCE. 


[part  II. 


first  instructed  by  the  judge  in  the  principles  and  rules  of  law  by 
which  thcv  are  to  be  governed  in  finding  a  verdict ;  and  these 


one  of  law,  except  in  complicated  cases. 
Fletcher  v.  Boston  &  Maine  R.  R.  Co.,  1 
Allen  (.Mass.),  9.  And  even  now  it  is  said 
that  where  the  facts  are  undisputed,  and 
such  that  only  one  conclusion  can  be 
drawn  from  them,  the  (piestion  is  one  of 
law.  O'Neill  v.  Chicago,  &c.  R.  R.  Co., 
1  McCrary,  C.  C.  505. 

The  most  difficult  cases   have  arisen, 
however,    when    the    (juestion    has   been 
whether   the   case    should   be  withdrawn 
by  the  judge   from  the  consideration   of 
the  jury,  after  the  plaintiff  has  put  in  his 
whole  case.     In   other   words,   when   the 
question  is  whether,  supposing  all  the  facts 
the  plaintiff  proves  are  true,  they  show  neg- 
ligence ;  or,  in  still  another  form,  whether 
there  is  any  evidence  of  negligence  to  go 
to  the  jury.     On  this  point,  the  language 
of  Brett,  J.,  in  Bridges  i'.  North  l^ondnn 
Ey.  Co.,  supra,  is  again  a  clear  expression 
of  the  true  rule  :    "  It  is  the  duty  of  the 
judge  to  determine  whether  there  is  evi- 
dence fit  to  be  left  to  the  jury  on  each  of 
the  propositions  which  it  is  necessary  that 
the  plaintiff  should  establish.     This,  being 
a  duty  cast  exclusively  on  the  judge,  is  a 
question  to  be  decided  according  to  some 
proposition  or  rule  of  law.     What  is  that 
pro})osition  or  rule  of  law  which  the  judge 
is  bound  to  apply  to  the  evidence  in  order 
to    determine  this   question    of  law  ?     It 
cannot  be  merely.  Is  there  evidence  ?  That 
has  no  meaning  without  a  farther  propo- 
sition defining  when  it  is  to  be  considered, 
in  point  of  law,   that  there  is  evidence. 
Without  a  proposition  or  rule  which  can 
be  enunciated  or  predicated,  there  is  no 
rule  of  law.     A  rule  of  law  can  always 
be  predicated  in  terms.     The  proposition 
seems  to  me  to  be  this  :  are  there  facts  in 
evidence  which,  if  unanswered,  would  jus- 
tify men  of  ordinary  reason  and  fairness 
in  affirming  the  question  which  the  plain- 
tiff is   bound  to   maintain  ?     It  may  be 
said  that  this  is  so  indefinite  as  to  amount 
to  no  rule  ;  that  it  leaves  the  judge,  after 
all,  to  say  whether,  in  his  imlividual  opin- 
ion, the  facts  in  evidence  would  prove  the 
pro]insition,  but  I  cannot  think  so.      It  is 
surely  possible  to  admit  that  reasonable 
and  fair  men  might  come  to  a  conclusion 
which  one's  self  would  not  arrive  at.     And 
judges  may  be  able  reasonably  to  say  fre- 
quently, that  although   they  would  not, 
upon  the  facts,   have  come   to  the  same 
conclusion  to  which  the  jury  has  come, 
yet  they  or  he  cannot  say  but  that  fair 
and  reasonable  men  might  agree  with  the 
conclusion  of  the  jury  ;  or,  in  other  words, 


that  although  they  would  not  have  arrived 
at  the  same  conclusion,  it  is  not  contrary 
to  reason  to  have  arrived  at  it. 

"The  judge  must  therefore,  before  direct- 
ing the  jury  in  the  terms  set  forth  above, 
first  determine  the  following  questions  : 
Are  there  facts  in  evidence  upon  which, 
if  unanswered,  men  of  ordinary  fairness 
and  reason  might  fairly  say  that  the  plain- 
tirt'  had  been  injured  by  some  act  of  com- 
mission or  omission  by  the  defendants  or 
their  servants  ?  Are  there  facts  in  evi- 
dence upon  which,  if  unanswered,  men  of 
ordinary  reason  and  fairness  might  fairly 
say  that  any  such  act  of  commission  or 
omission  was  such  as  a  person  of  reason- 
able skill  and  care,  under  the  same  circum- 
stances, would  have  done  or  omitted  to 
do  ?  Are  there  any  facts  in  evidence  upon 
which,  if  unanswered,  men  of  ordinary 
reason  and  fairness  might  fairly  say  that 
the  plaintiff  had  not,  in  a  manner  con- 
tributing to  the  accident,  done  anything 
or  omitted  to  do  anything  which  a  person 
of  ordinaiy  care  and  skill,  under  the  same 
circumstances,  would  not  have  done  or 
would  have  done  ? 

"  If  the  judge,  not  deciding  the  final 
issues  according  to  his  own  individual 
view,  but  determining  according  to  the 
propositions  last  laid  down,  holds  that 
there  is  no  evidence  fit  to  be  left  to  the 
jury,  on  some  one  of  the  cardinal  questions 
before  stated,  he  must  direct  the  jury,  as 
matter  of  law,  that  there  is  no  case  in 
favor  of  the  plaintiff,  or  he  must  nonsuit 
the  plaintitt'.  If  he  holds  that  there  is  evi- 
dence on  each  of  the  cardinal  questions, 
he  must  leave  the  case  to  the  jury,  ac- 
cording to  the  direction  in  point  of  law 
before  laid  down  in  this  opinion.  When 
the  judge  has  so  directed  the  jury  as  to 
the  law,  be  has  finished  all  which  it  is  legal 
for  him  exclusively  to  determine  in  the 
case."  The  correctness  of  these  principles 
was  recognized  in  the  later  case  of  Jackson 
V.  Metropolitan  Ry.  Co.,  L.  R.  2  C.  P.  Div. 
125,  though  the  judges  there  differed  on 
the  question  whether  there  was,  in  the  case 
at  bar,  any  evidence  of  negligence.  And 
in  the  later  case  of  Pearson  v.  Cox,  Id.  369, 
the  same  principles  are  affirmed,  Brett, 
L.  J.,  alluding  to  his  opinion  in  Bridges 
Case,  and  saying  that  he  continued  to 
hold  the  sam'e  opinion.  Cf.  Manzoni  v. 
Douglas,  L.  R.  6  Q.  B.  Div.  145.  This 
may  now  be  regarded  as  the  settled  law  in 
England,  and  the  conflicts  in  the  decisions 
must  be  laid  to  the  conflicting  opinions  of 
the  judges  as  to  what  a  reasonable  and  fair 


CHAP.    I.] 


THE   RELEVANCY   OP   EVIDENCE. 


81 


instructions  they  are  bound  to  follow. 2  If  the  genuineness  of  a 
deed  is  the  fact  in  question,  the  preliminary  proof  of  its  execu- 
tion, given  before  the  judge,  does  not  relieve  the  party  offering 
it  from  the  necessity  of  proving  it  to  the  jury.^  The  judge  only 
decides  whether  there  is,  prima  facie,  any  reason  for  sendino-  it 
at  all  to  the  jury.^  (/) 

2  1  Stark.  Evid.  510,  519-526;  Hutchison  v.  Bowker,  5  M.  k,  W.  535;  Williams  v. 
Byrne,  2  N.  k  P.  139  ;  McDonald  v.  llooke,  2  Bm».  N.  C.  217  ;  James  v.  Phelps,  11 
Ad.  &  El.  483;  s.  c.  3  P.  &  D.  231;  Panton  v.  Williams,  2  Q.  B.  169;  Townsen'd  v. 
State,  2  Blackf.  151;  Montgomery  v.  Ohio,  11  Ohio,  424.  Questions  of  interpretation, 
as  well  as  of  coustniction  of  written  instruments,  are  for  the  court  alone.  Jafra, 
§  277,  n.  (1).  But  wiiere  a  doubt  as  to  the  application  of  the  descriptive  portion  of  a 
deed  to  external  objects  arises  from  a  latent  ambiguity,  and  is  therefore  to  be  solved  by 
parol  evidence,  the  ([uestion  of  intention  is  necessarily  to  be  determined  by  the  jury. 
iJfied  V.  Proprietors  of  Locks,  &c.,  8  How.  S.  C.  274. 

3  Ross  V.  Gould,  5  Greenl.  204. 

*  The  subject  of  the  functions  of  the  judge,  as  distinguished  from  those  of  the  jurj', 
is  fully  and  ably  treated  in  an  article  in  the  Law  Review,  No.  3,  for  May,  1845, 
pp.  27-44. 


man  might  fairly  call  evidence  of  negli- 
gence. Jackson  v.  Metropolitan  Ry.  Co., 
supra ;  Ellis  v.  Great  Western  Ry.  Co., 
L.  R.  9  C.  P.  556.  The  same  principles 
obtain  in  Massachusetts.  In  Hinckley  v. 
Cape  Cod  Railroad,  120  Mass.  257,  the 
question  was  wjiether  the  plaintiff's  intes- 
tate had  used  due  care,  and  although  tlie 
judges  were  divided  on  the  qvrestion  wheth- 
er there  was  any  evidence  of  due  care  to 
go  to  the  jury,  they  agreed  on  the  princi- 
ple that  if  there  was  no  evidence  in  the 
case  on  which  a  reasonable  man  could  find 
due  care,  the  case  should  be  withdrawn 
from  the  jury.  Cf.  Allyn  v.  Boston  & 
All)any  R.  R.  Co.,  105  Mass.  77  ;  Clark 
V.  Boston  k  Albany  R.  R.  Co.,  128  Mass.  1; 
Cook  V.  Union  Ry.  Co.,  125  Mass.  57.  And 
this  seems  to  be  the  prevalent  opinion  in 
the  United  States.  Pennsylvania  R.  R.  Co. 
V.  Righter,  42  N.  J.  L.  180;  Payne  v.  Troy, 
&c.  R.  R.  Co..  83  N.  Y.  572;  Shefft;.  Hunt- 
ington, 16  W.  Va.  307  ;  Teipel  u.  Hilsen- 
degen,  44  Mich.  461. 

On  the  general  subject  see  Holmes, 
Common  Law,  Lecture  \\\.  and  jmsl,  vol. 
ii.  §  222,  note  (a),  p.  217,  and  §  230,  note 
(a),  p.  226. 

(/ )  It  is  the  province  of  the  judge  who 
presides  at  the  trial  to  decide  all  questions 
on  the  admissibility  of  evidence.  It  is 
also  his  province  to  decide  any  preliminary 
questions  of  fact,  however  intricate,  the 
solution  of  which  may  be  necessary  to 
enable  him  to  determine  the  other  ques- 
tion of  admissibility.  And  his  decision  is 
conclusive,  unless  he  saves  the  question 
for  revision  by  the  full  court,  on  a  rejiort 
of  the  evidence,  or  counsel  bring  up  the 
question   on   a  bill   of  exceptions  which 

VOL.    I.  —  6 


contains  a  statement  of  the  evidence. 
Gorton  v.  Hadsell,  9  Cush.  (Mass.)  511; 
State  V.  Pike,  49  N.  H.  399;  Bartlett  v. 
Smith,  11  Mees.  &  Wels.  483.  Thus  the 
question  whether  the  application  to  a  jus- 
tice of  the  peace  under  a  statute,  to  call  a 
meeting  of  the  proprietors  of  a  meeting- 
house, was  signed  by  five  at  least  of  such 
proprietors,  as  preliminary  to  the  question 
of  the  admissibility  of  the  records  of  such 
meeting,  is  for  the  judge,  and  not  for 
the  jury.  Gorton  v.  Hadsell,  xM  supra. 
Where  the  admissibility  of  evidence  de- 
pends upon  the  existence  of  any  prelimi- 
nary fact  or  condition,  it  is  for  the  judge 
to  decide  whether  the  fact  or  condition 
exists,  as  whether  the  witness  is  an  ex- 
pert (Com.  V.  Williams,  105  Mass.  62); 
or  a  dying  declarant  entertained  hope  of 
recovery  (State  v.  Tilghmau,  11  Ired. 
(N.  C.)  Law,  513;  Rex  v.  Hncks,  1  Stark. 
523)  ;  or  whether  the  writing  to  be  used 
as  a  test  in  comparison  of  handwritings 
is  sutficiently  proved  (Com.  v.  Coe,  115 
Mass.  481);  or  a  witness  has  sufficient 
mental  capacity  to  be  admissible  (Cole- 
man V.  Com.  25  Graft.  (Va.)  865; 
and  what  subjects  an  expert  ^may  tes- 
tify upon  (Jones  v.  Tucker,  41  N. 
H.  546)  ;  whether  certain  declarations 
were  so  far  part  of  the  res  gestce  as 
to  be  admissible  (State  v.  Pike,  51 
N.  H.  105)  ;  and  whether  possession  of 
stolen  property  is  sufficiently  recent  to  af- 
ford the  presumption  that  it  was  stolen  by 
the  possessor.  State  v.  Hodge,  50  N.  H. 
510.  Other  instances  :  Whether  a  con- 
fession is  induced  by  threats  (Rex  v. 
Hucks,  1  Stark.  523);  whether  a  witness 
is  unable  to  attend  as  preliminary  to  the 


82  LAW   OF   EVIDENCE.  [PART  II. 

§  50.  General  rules  as  to  relevancy.  The  production  of  evi- 
dence to  the  jury  is  governed  by  certain  principles,  which  may 
be  treated  under  four  general  heads  or  rules.  The  first  of  these 
is,  that  the  evidence  must  correspond  with  the  allegations,  and  be 
confined  to  the  point  in  issue.  The  second  is,  that  it  is  sufficient, 
if  the  substance  only  of  the  issue  be  proved.  The  third  is,  that 
the  burden  of  proving  a  proposition,  or  issue,  lies  on  the  party 
holding  the  affirmative.  And  the  fourth  is,  that  the  best  evi- 
dence of  which  the  case,  in  its  nature,  is  susceptible,  must  always 
be  produced.     These  we  shall  now  consider  in  their  order. 

§  51.  First.  Allegations.  Issue.  The  pleadings  at  common  5 
law  are  composed  of  the  written  allegations  of  the  parties,  termi- 
nating in  a  single  proposition,  distinctly  affirmed  on  one  side, 
and  denied  on  the  other,  called  the  issue.  If  it  is  a  proposition 
of  fact,  it  is  to  be  tried  by  the  jury,  upon  the  evidence  adduced. 
And  it  is  an  established  rule,  which  we  state  as  the  first  rule, 
governing  in  the  production  of  evidence,  that  the  evidence  offered 
must  correspond  with  the  allegations,  and  he  confined  to  the  point 
in  issue.'^  (a)  This  rule  supposes  the  allegations  to  be  material 
and  necessary.  Surplusage,  therefore,  need  not  be  proved ;  and 
the  proof,  if  offered,  is  to  be  rejected.  The  term  surplusage 
comprehends  whatever  may  be  stricken  from  the  record,  without 
destroying  the  plaintiff's  right  of  action ;  as  if,  for  example,  in 
suing  the  defendant  for  breach  of  warranty  upon  the  sale  of  goods, 
he  should  set  forth,  not  only  that  the  goods  were  not  such  as  the 
defendant  warranted  them  to  be,  but  that  the  defendant  well 
knew  that  they  were  not.^     But  it  is  not  every  immaterial  or  un- 

1  See  Best's  Principles  of  Evidence,  §§  229-249. 

2  Williamson  v.  Allison,  2  East,  446  ;   Peppin  v.  Solomons,  5  T.  R.  496 ;  Brora- 
field  V.  Jones,  4  B.  &  C.  380. 

admission  of  his  deposition  (Beaufort  v.  is  to  be  gathered  from  the  document  itself, 

Crawshay,  L.  R.  1  C.  P.  699);  or  is  absent  is  for  the  court.     But  where  the  meanmg 

from  collusion  (Eagan  v.  Larkin,  1  Arms,  can  only  be  determined   by  reference  to 

M.  &  0.   403);  or  a  document  has  been  extrinsic  facts,  the  document  and  the  facts 

duly   executed'  or    stamped    (Bartlett  v.  must  be  submitted  to  the  jury.     Gibbs  v. 

Smith,  11  M.  &  W.  483);  or  comes  from  Gilead,   Eccl.    Soc,   38  Conn.   153.     The 

the  proper  custody   (Doe  v.   Keeling,  11  lex  fori  determines  the  nature,   amount, 

0.  B.   889);  or  be"  tlie  original  paper  re-  and  mode  of  proof.     Mostyn  v.   Fabngas 

rmired   (Froude  v.  Hobbs,  1  Fost.  &  Fin.  1  Cowp.  174;  Bain  v.  Whitehaven  R.  Pu 

612)  •  or  sufficient  search  has  been  made  Co.,   3   H.   of  L.    1  ;  Yates   v.   Thomson, 

to  warrant  the  introduction  of  secondary  3  C.  &  F.  577;  Brown  v.  Thornton,  6  Ad. 

evidence(Bartletti;.  Smith,  w6isi*p.);  anil  &  EL    185;   Downer   v.   Chesebrouijh,  36 

generally   all    other  incidental   questions  Conn.   38.     And   see   also  post,    vol.    lu. 

bearing  upon  the  admissibility  of  the  evi-  §  28.  ,  .        ,  i    , 

dence   offered.     Relevancy    and    admissi-  {a)  The  reason  for  this  rule,  and  the 

bility  are  for  the  judge:  credibility  and  necessity  for  a  strict  adherence  to  it,  are 

weight  are  for  the  jury.     The  construction  well  explained  and  illustrated  in  Malcom- 

of  a°written  document,  where  the  meaning  son  v.  Clayton,  13  Moore,  P.  C.  C.  198. 


CHAP.    I.]  THE   RELEVANCY   OF   EVIDENCE.  83 

necessary  allegation  that  is  surplusage ;  for  if  the  party,  in  stat- 
ing his  title,  should  state  it  with  unnecessary  particularity,  he 
must  prove  it  as  alleged.  Thus,  if,  in  justifying  the  taking  of 
cattle  damage-feasant,  in  which  case  it  is  sufficient  to  allege  that 
they  were  doing  damage  in  his  freehold,  he  should  state  a  seisin 
in  fee,  which  is  traversed,  he  must  prove  the  seisin  infee;^  for 
if  this  were  stricken  from  the  declaration,  the  plaintiff's  entire 
title  would  be  destroyed.  And  it  appears  that  in  determining 
the  question,  whether  a  particular  averment  can  be  rejected, 
regard  is  to  be  had  to  the  nature  of  the  averment  itself,  and  its 
connection  with  the  substance  of  the  charge,  or  chain,  rather 
than  to  its  grammatical  collocation  or  structure.* 

§  51  a.  Evidence  must  tend  to  prove  issue.  It  is  not  neces- 
sary, however,  that  the  evidence  should  bear  directly  upon  the 
issue.  It  is  admissible  if  it  tends  to  prove  the  issue,  or  consti- 
tutes a  link  in  the  chain  of  proof;  although,  alone,  it  might  not 
justify  a  verdict  in  accordance  with  it.i(a)     Nor  is  it  necessary 

8  Sii-  Francis  Leke's  Case,  Dyer,  365;  2  Saund.  206  a,  n.  22;  Stephen  on  Pleading, 
261,  262;  Bristow  v.  Wright,  Doug.  640;  Miles  v.  Slieward,  8  East,  7,  8,  9  ;  1  Smith's 
Leading  Cases,  328,  n. 

*  1  Stark.  Evid.  386. 

1  McAllister's  Case,  11  Shepl.  139  ;  Haughey  v.  Striokler,  2  Watts  &,  Serg.  411  ; 
Jones  V.  Vanzandt,  2  McLean,  596;  Lake  v.  Munford,  4  Sni.  &  ^Larsh.  312  ;  Belden 
V.  Lamb,  17  Conn.  441.  Where  the  plaintiff's  witness  denied  the  existence  of  a  ma- 
terial fact,  and  testified  that  persons  connected  with  the  plaintiff  had  offered  him 
money  to  assert  its  existence,  the  plaintiff  was  permitted,  not  only  to  prove  the  fact, 
but  to  disprove  the  subornation,  on  the  ground  that  this  latter  fact  had  become  mate- 
rial and  relevant,  inasmuch  as  its  truth  or  falsehood  may  fairly  intluence  the  belief  of 
the  jury  as  to  the  whole  case.     Melhuish  v.  Collier,  15  Q.  B.  878. 

{n)  Com.  V.    Fenno,   134   Mass,   217  ;  side  takes  a  deposition  and  does  not  put 

Sanders    v.   Stokes,    30    Ala.    432 ;    Col-  it  in  evidence,  the  other  side  may  com- 

umbus,  &c.  Co.  V.  Semnies,  27  Ga.  283  ;  ment  on  the  fact  to  the  jury.     Learned 

Willoughby  v.   Dewey,  54  111.   266  ;  Far-  v.  Hall,  133  Mass.  417  (ante,  §  13  a). 
well  V.  Tyler,  5  Iowa,  535  ;  Richardson  v.  The   question    naturally   arises,    when 

Milhnrn,  17  Md.  67  ;  Comstock  v.  Smith,  one  who  must  have  known  of  the  circum- 

20    Mich.    338  ;    Tucker    v.    Peaslee,    36  stances  of  the  case  is  not  called  as  a  wit- 

N.  H.  167  ;  Tams  v.  Bullitt,  35  Pa.  St.  ness,  whose  side  his  evidence  would  favor 

308  ;  Schuehardtv.  Aliens,  1  Wall.  (U.  S.)  if  he   were   called.      A])parently,    in    the 

359.  A  species  of  evidence  is  generally  held  case  of  this  anomalous  kind  of  evidence, 

admissible  which  is  totally  irrelevant  to  it  is  competent  for  either  side  to  put  in 

any   issue   raised   by   the    pleadings,    but  evidence  the  fact  that  the  other  side  has 

which   bears   on   the  general   conduct   of  not  called  the  witness,  and  in   argument 

the  case  by  one  side  or  the  other.     For  in-  to  allege  that  the  reason  for  this  is  that 

stance,  it  is  held  that  one  side  may  pat  in  they   dared  not   do   so.     It  is   said   in  a 

evidence  the  fact  that  a  material  witness  recent  case  that  it  is  for  the  juiy  to  deter- 

for  the  other  side  is  living  and  within  the  mine  whether  this  inference  can  be  drawn 

jurisdiction  of  the  court,  and  yet  has  not  from   the  failure  of  a  party  to  provide  a 

been  called  as  a  witness  in  the  case  ;  or,  witness.       Com.   v.    Haskell,    140    Mass. 

again,  he  may  argue  upon  the  fact  that  the  128.       It  is,    however,    the   duty   of  the 

opposing   party   has   not  testified   in    his  court,  before  admitting  such  evidence,  to 

own    behalf.        Lothrop    v.    Adams,    133  decide    upon   its   a<lmissibility,  and    that 

Mass.  477  ;  Lynch  ?;.  Peabody,  137  Mass.  question  would    seem    to    turn    u]ion   the 

93.     And  similarly,  it  is  held  that  if  one  question,  whether  such  an  inference  could 


84 


LAW   OF   EVIDENCE. 


[part   II. 


that  its  relevancy  sTiould  appear  at  the  time  when  it  is  offered ; 
it  being  the  usual  course  to  receive,  at  any  proper  and  convenient 
stage  of  the  trial,  in  the  discretion  of  the  judge,  any  evidence 
which  the  counsel  shows  will  be  rendered  material  by  other  evi- 
dence which  he  undertakes  to  produce.  If  it  is  not  subsequently 
thus  connected  with  the  issue,  it  is  to  be  laid  out  of  the  case.2(6) 

-  McAllister's  Case,  supra;  Van  Buren  v.  Wells,  19  Wend.  203;  Crenshaw  v. 
Davenport,  6  Ala.  390;  Tuggle  v.  Barclay,  Id.  407;  Abuey  v.  Kingsland,  10  Ala.  355; 
Yeatnian  v.  Hart,  6  Humph.  375. 


fairly  be  drawn  by  the  jury  when  the 
evidence  was  before  them.     Ante,  §  13  a. 

Even  in  a  criminal  case,  the  fact  that 
there  were  other  witnesses  of  the  otfence 
or  circumstances  of  the  case  not  called, 
whose  testimony  would  have  helped  the 
defendant,  may  be  considered  as  affecting 
his  side  of  the  case,  although  the  fact  that 
the  defendant  in  a  criminal  case  does  not 
himself  testify  cannot  be  used  against  him. 
Com.  V.  Brownell,  145  Mass.  319.  See 
post,  §  329  and  notes.  And  in  no  case 
is  the  circumstance  that  a  particular  per- 
son, who  is  equally  within  the  control  of 
both  parties,  is  not  called  as  a  witness, 
potent  enough  to  su|)p]y  independent  evi- 
dence of  a  fact  which  is  wholly  unjjroved  by 
other  evidence.  Diel  v.  Mo.  Pac.  R.  K. 
Co.,  37  Mo.  App.  459. 

In  many  cases  the  intention  with  which 
parties  to  the  case  or  others  did  certain 
acts,  is  a  material  question  in  the  case  ; 
and  under  the  rules  of  evidence  by  which 
parties  interested  in  the  case  and  parties  to 
the  record  were  incompetent  as  witnesses, 
an  unusual  species  of  evidence,  employed 
to  settle  this  question  M-as  :  inferences 
drawn  from  similar  acts  of  the  party  in 
question.  See  §  53,  and  note  b,  p.  88. 
Or  a  jiresumption  of  law  was  drawn  fiom 
the  commission  of  the  act  which  was  con- 
clusive, and  rendered  the  production  of 
evidence  of  intention  unnecessary.  See 
vol.  3,  ch.  1.  But,  since  by  the  statutes 
enacted  in  most  of  the  States,  parties  to 
the  suit  are  admissible  as  witnesses,  it  he- 
comes  possible  to  prove  their  intention  by 
their  own  testimony. 

Accordingly,  in  many  cases  the  parties 
have  been  put  on  the  stand  and  allowed 
to  testify  to  their  intent  in  doing  the  act 
in  (|uestion.  This  evidence  is  necessarily 
subject  to  grave  suspicion,  but  is  admissible 
for  what  it  is  worth.  Flowers  v.  Brum- 
bach,  30  111.  App.  296  ;  Stearns  v.  Gos- 
selin,  58  Vt.  38  ;  Jefferds  v.  Alvard,  151 
Mass.  95.  Better  testimony  may  be  had 
from  their  declai'ations  accompanying  acts 
in  issue,  and  characterizing  them.  Elmer 
V.  Fessenden,  151  Mass.  361. 


(b)  Harris  v.  Holmes,  30  Vt.  352  ;  IT.  S. 
V.  Flowery,  1  Sprague's  Dec.  109.  And  no 
exception  lies  to  the  order  in  which  the 
judge  admits  the  evidence.  Com.  v.  Dam, 
107  Mass.  210. 

The  relevancy  of  evidence,  that  is,  its 
logical  force  to  prove  the  facts  in  issue,  is 
decided  by  the  presiding  judge.  Ques- 
tions arise  as  to  how  far  before  or  after  the 
time  of  the  facts  in  issue  the  judge  should 
allow  the  evidence  to  extend,  and  to  what 
collateral  facts,  if  any.  This  question  is 
largely  one  to  be  answered  by  the  discre- 
tion of  the  presiding  judge,  the  guiding 
])rinciple  being  that,  besides  the  lacts  in 
issue,  and  facts  immediately  relevant 
thereto,  any  facts  necessary  to  explain 
or  introduce  a  fact  in  issue  or  relevant 
fact,  or  which  .support  or  rebut  an  infer- 
ence suggested  by  a  fact  in  issue  or  rele- 
vant fact,  are  to  be  received  in  evidence. 
Wallace  v.  Kennelly,  47  N.  J.  L.  246. 
So  also,  facts  which  though  occurring  at 
different  times  or  places  have  some  logical 
force  to  prove  the  principal  facts.  Thus, 
where  one  was  indicted  for  keeping  a 
house  of  ill-fame  between  two  dates,  and 
the  case  showed  that  the  house  was  kept 
by  his  wife,  and  the  question  was  whether 
he  consented  to  such  keeping,  the  court 
admitted  evidence  that  he  had  for  live 
years  ju'eviously  to  the  beginning  of  the 
time  laid  in  the  indictment,  ordered, 
directed,  persuaded,  and  used  all  reason- 
able and  practicable  means  in  his  power  to 
prevent  his  wife  from  doing  the  things 
charged  in  the  indictment.  This  evidence 
was  admitted  upon  the  question  of  his 
state  of  mind  ujwn  the  subject.  Com.  v. 
Hill,  145  Mass.  305. 

So  on  trial  of  a  complaint  for  keeping  a 
gambling  ])Iace,  at  a  certain  daj',  proof 
that  the  place  M'as  kept  for  such  purposes 
through  ten  days  previous  mav  be  admis- 
sible. Com.  V.  Ferry,  146  "Mass.  203. 
So  when  the  value  of  land  is  in  question, 
evidence  of  sales  of  other  land  in  the  vicin- 
ity may  be  shown  if  so  near  in  time  and 
so  like  in  character  as,  in  the  opinion  of 
the  presiding  judge,  to  form  a  proper  test 


CHAP.   I.] 


THE   RELEVANCY   OF   EVIDENCE. 


85 


§  52.   Collateral  facts  inadmissible.     This  rule  cxcluclcs  all  evi- 
dence of  collateral  facta,  or  those  which  arc  incapable  of  affording 

of  the  value  of  the  land  in  question. 
Kolu'ils  0.  Huston,  149  Mass.  353  ;  Patch 
V.  Boston,  lit)  Mass.  52  ;  Chandler  v.  Ja- 
maica Pond  A([ueduct  Corp.,  122  Mass. 
305  ;  Thompson  v.  Boston,  148  Mass. 
388.  So  evidence  of  the  state  of  mind  of 
a  person  may  be  rejected  in  the  discretion 
of  the  jud^'e,  if  it  applies  to  a  period  long 
-!•._„  ii,.,  ^; ;„  ;„„,,„     \\7,.;„r,+  ,.    Wvirrlif 


after  the  time  in  issue.    \V^ right  v.  Wright, 
139  Mass.  177. 

It  is  said  in.  a  recent  case  in  Massachu- 
setts that  the  objection  to  the  introduction 
of  evidence  of  collateral  facts  is  pui-ely 
practical,  and  it  seems  to  be  intimated 
that  such  evidence  might  he  admitted 
whenever  the  collateral  fact  has  a  suffi- 
cient tendency  to  prove  a  fact  in  issue, 
and  when  it  can  be  proved  without  un- 
reasonably protracting  the  trial.  Reeve  v. 
Dennett,  145  Mass.  23. 

A  well  established  exception  to  the 
rule  excluding  evidence  of  collateral  facts 
is  the  admission  of  similar  facts  in  certain 
cases  to  show  probable  similar  results  or 
actions.  Generally  sjieaking,  such  evi- 
dence is  inadmissible.  Thus,  where  the 
question  in  an  action  of  negligence 
was  whether  a  wagon  was  overloaded  or 
not,  evidence  that  at  other  times  the 
wagon  was  overloaded,  whether  frei[uently 
or  not,  was  held  ina<lmissible.  "Whitney 
V.  Gross,  140  JMass.  2o2.  So  where  the 
action  was  based  on  the  negligence  of  the 
defendant's  foreman,  it  was  held  that  other 
specific  acts  of  his  negligence  before  the 
accident  were  inadmissible.  Hatt  v.  Nay, 
144  Mass.  186.  In  Cleveland,  &c.  K.  R.  Co. 
V.  Wynant  (Ind.),  35  Am.  &  Eng.  R.  C. 
328,  where  the  plaintiff  sued  for  injuries 
through  his  horse  taking  fright  at  a  box- 
car standing  partially  upon  the  public 
highway,  —  testimony  that  other  horses 
had  taken  fright  at  the  same  car  was 
held  inadmissible.  In  Hudson  v.  Chi- 
cago, &c.  R.  R.  Co.,  59  Iowa,  581,  which 
was  an  action  for  an  injury  to  a  horse  by 
reason  of  the  negligent  and  defective  con- 
struction of  a  railroad  crossing,  evidence 
of  a  former  and  similar  accident  which 
happened  to  another  at  the  same  place 
was  held  not  competent.  In  Smith  v. 
Central  R.  &  B.  Co.  (Ga.),  25  Am.  &  Eng. 
R.  C.  546,  which  was  an  action  for  an  in- 
jury received  by  a  passenger  stepping  off 
a  wall  after  alighting  from  a  train,  evi- 
dence that  another  person  had  fallen  from 
the  same  place,  was  held  improperly  ad- 
mittetl.  In  Early  v.  Lake  Shore,  &c.  11.  R. 
Co.  (Mich.),  30  Am.  &  Eng.  R.  C.  163, 
which,  was  an  action  for  au  injury  received 


by  falling  into  a  turn-table  while  plaintiff 
was  passing  along  the  street  on  a  dark 
night,  it  was  held  that  the  exclusion  of 
eviilence  of  other  and  j)revious  accidents  at 
the  same  place  was  not  erroneous.  Cf. 
Baxter  v.  Doe,  142  Mass.  558. 

In  other  cases  however  such  evidence 
has  been  held  to  be  adnussible  on  the 
question  of  notice,  c.  (j.  when  certain  jier- 
sons  are  charged  with  the  duty  of  keep- 
ing highways,  bridges,  crossings,  or  other 
structures  in  a  safe  condition,  or  of  keep- 
ing only  competent  persons  in  their  service, 
or  whei'e  the  question  is  as  to  the  safety  or 
availability  of  the  machinery  or  contriv- 
ances designed  for  the  particular  puriiose 
or  for  a  practical  use,  such  evidence  shows 
whether  the  machine  was  suitable  for 
the  use  for  which  it  was  designed  in  the 
one  case,  or  that  occurrences  of  a  char- 
acter to  make  the  defect  or  incompetency 
notorious  had  taken  jilace  in  the  other 
thereby  affecting  with  notice  those  who 
were  charged  with  negligence  in  the  mat- 
ter. Darling  v.  Westmoreland,  52  N. 
H.  401  ;  Kent  v.  Lincoln,  32  Vt.  591  ; 
Quinland  v.  Utica,  74  N.  Y.  603  ;  House 
V.  Metcalf,  27  Conn.  632 ;  Chicago  v. 
Power.s,  42  111.  169  ;  Dist.  of  Columbia 
V.  Armes,  107  U.  S.  519;  Delj.hi  i;. 
Lowery,  74  Ind.  520  :  Augusta  v.  Hafers, 
61  Ga.  48  ;  Osborne  v.  Ikll,  62  Mich. 
218.  In  Wooley  v.  Grand  St.,  &e.  R. 
R.  Co.,  83  N.  Y.  121,  wluch  was  an  action 
for  personal  injuries,  caused  by  the  plain- 
tiffs sleigh  striking  against  a  switch  laid 
down  in  the  city  street,  it  was  held  not 
error  to  receive  evidence  that  there  had 
been  other  accidents  at  the  same  switch. 
In  Morse  v.  Minneapolis  &  St.  Louis  R. 
R.  Co.,  30  Minn.  465,  which  was  an  action 
by  an  engineer  employed  by  the  Railroad 
Co.  for  an  injury  caused  by  a  defective 
track,  plaintiff  was  permitted  to  show  that 
other  engines  and  cars  had  missed  the 
track  at  the  same  point  both  before  and 
after  the  accident  complained  of.  The 
Supreme  Court  held  that  this  was  ]>roper 
for  the  purpose  of  showing  the  defective 
character  of  the  track. 

It  is  a  well  established  rule  that  one 
cannot  be  proved  guilty  of  an  offense  for 
which  he  is  on  trial,  by  showing  that  at 
another  time  he  committed  a  similar  of- 
fense. Sullivan  v.  O'Learj',  146  Mass. 
322;  Jordan  v.  Osgodd,  109  Mass.  457  ; 
Com.  V.  Jackson,  132  IMass.  16.  Thus, 
when  one  was  sued  for  slander,  evidence 
that  he  had  slandered  another  person  two 
or  three  years  before  was  held  inadmis- 


86 


LAW   OF   EVIDENCE. 


[part  II. 


any  reasonable  presumption  or  inference  as  to  the  principal  fact 
or  matter  in  dispute;  and  the  reason  is,  that  such  evidence  tends 
to  draw  away  the  minds  of  the  jurors  from  the  point  in  issue,  and 
to  excite  prejudice  and  mislead  them;  and  moreover  the  adverse 
party  having  had  no  notice  of  such  a  course  of  evidence,  is  not 
prepared  to  rebut  it.^{a)    Thus,  where  the  question  between  land- 

1  Infra,  §  448.  But  counsel  may,  on  cross-examination,  inquire  as  to  a  fact  ap- 
parently irrelevant,  if  he  will  undertake  afterwards  to  show  its  relevancy  by  other 
evidence.     Haigh  v.  Belcher,  7  C.  &  P.  389. 


sible.  Sullivan  v.  O'Leary,  supra.  This 
subject  is  more  fully  discussed  in  sections 
52  and  53  and  notes. 

(rt)  So  in  Lincoln  v.  Taunton  Copper 
Manufacturing  Company,  9  Allen  (Mass.), 
181,  where  the  action  was  for  the  deteri- 
oration of  plaintiflTs  land,  caused  by  the 
escape  of  noxious  substances  from  the  de- 
fendant's factory,  which  were  carried  by 
water  to  the  plaintiff's  land,  it  was  held 
that  evidence  offered  by  the  plaintiff  to 
show  the  bad  condition  of  similarly  situated 
meadows  upon  the  same  stream,  and  in 
the  vicinity  of  the  defendant's  works,  was 
properly  rejected,  on  the  ground  that  this 
would  result  in  the  multiplication  of 
issues.  Cf.  Hawks  v.  Charlemont,  110 
Mass,  110. 

In  like  manner  it  is  not  allowable  for 
an  officer,  sued  for  misconduct,  to  show 
that  other  officers  were  accustomed  to  act 
in  the  same  way.  Cutter  v.  Howe,  122 
Mass.  541.  Nor  a  ferry  comjiany,  sued 
for  the  loss  of  animals  which  fell  off  the 
ferry-boat  and  were  drowned,  to  show  that 
such  a  boat  had  been  used  for  a  long  time 
previously  and  no  accident  had  occurred. 
Lewis  V.  Smith,  107  Mass.  334.  Cf. 
Peverly  v.  Boston,  136  Mass.  366  ;  Den- 
ver, &c.  R.  R.  Co.  V.  Glasscot,  4  Col.  270; 
New.som  v.  Georgia  R.  R.  Co.,  62  Ga.  339; 
Durbrow  v.  McDonald,  5  Bosw.  (N.  Y. ) 
130;  Wentworth  v.  Smith,  44  N.  H.  419. 
If,  however,  the  evidence  offered,  although 
not  directly  applicable  to  the  point  in 
issue,  is  of  such  a  nature  as.  in  the  opin- 
ion of  the  judge,  to  support  the  issue  in- 
directly, and  does  not  raise  a  collateral 
issue,  it  is  admissible.  Thus  where,  in  an 
action  for  injuries  received  on  a  highway, 
evidence  is  offered  as  to  the  state  of  the 
highway  at  a  short  distance  from  the  jilace 
of  the  acciilent,  before  or  after  the  acci- 
dent, if  within  such  a  time  as  renders  it 
probable,  under  the  circumstances,  that 
no  change  has  taken  plane,  it  is  admissi- 
ble. Berrenberg  v.  Boston,  137  Mass. 
231  ;  Woodcock  v.  Worcester,  138  Mass. 
268;  Todd  v.  Rowley,  8  Allen  (Mass.), 
51 ;   Bailey  v.  Trumbull,  31  Conn.  581  ; 


Walker  v.  Westfield,  39  Vt.  246;  Sherman 
V.  Kortright,  52  Barb.  (N.  Y.)  267.  So 
where  several  crimes  are  committed  in  so 
short  a  time  that,  in  order  to  prove  one 
completely,  proof  of  others  must  be  in- 
cluded, such  proof  is  admissible.  Mason  v. 
State,  42  Ala.  532.  See  also /)osi!,  §  53,  note. 

The  value  of  any  ]>ro]ierty  may  gener- 
ally be  proved  by  the  value  of  similar 
property  under  similar  conditions,  the  rel- 
evancy of  the  evidence  for  such  purpose 
being  always  a  question  for  the  court. 
Paine  v.  Boston,  4  Allen  (Mass.),  168  ; 
Benham  v.  Dunbar,  103  Mass.  365  ;  Isbell 
V.  New  York,  &c.  R.  R.  Co.,  25  Conn. 
556  ;  Carlton  v.  He.scox,  107  Mass.  410  ; 
Atchison,  &c.  R.  R.  Co.  v.  Harper,  19 
Kans.  529  ;  Cro.ss  v.  Wilkins,  43  N.  H. 
332  :  Melvin  v.  Bullard,  35  Vt.  268. 

The  question  what  facts  are  collateral 
must  necessarily  depend  largely  on  the 
facts  of  the  individual  ca.se.  Mr.  Ste- 
phen, Dig.  Evid.  says  :  "  Facts  which, 
though  not  in  issue,  are  so  connected  with 
a  fact  in  issue  as  to  form  a  part  of  the  same 
transaction  or  subject-matter,  are  deemed 
to  be  relevant  to  the  fact  with  which  they 
.are  so  connected."  Art.  3.  The  unavoid- 
able generality  of  such  a  rule  lessens  its 
practical  value,  as  the  question,  what  facts 
are  so  connected,  is  left  unanswered.  Mr. 
Taylor,  Evidence,  §  316,  says,  after  giving 
the  rule  in  Mr.  Greenleaf's  words  :  "  The 
due  application  of  this  rule  will  occasion- 
ally tax  to  the  utmost  the  firmness  and 
discrimination  of  the  judge,  so  that  while 
he  shall  reject  as  too  remote  every  fact 
which  merely  furnishes  a  fanciful  analogy 
or  conjectural  inference,  he  may  admit  as 
relevant  the  evidence  of  all  those  matters 
which  shed  a  real,  though  perhaps  indirect 
and  feeble  light  on  the  question  in  issue." 

There  is  a  class  of  cases  where  similar 
unconnected  facts  are  admitted  ;  i.  e.  where 
experts  have  been  permitted  to  testify  to 
their  opinions,  and  these  opinions  are 
based  on  exjteriments  in  which  the  con- 
ditions of  the  fact  in  issue  which  their 
opinion  is  given  to  sustain  are  reproduced 
as  nearly  as  possible,  the  experts  may  be 


CHAP.    I.] 


THE   RELEVANCY   OF   EVIDENCE. 


87 


lord  and  tenant  was,  whether  the  rent  was  payable  quarterly,  or 
half-yearly,  evidence  of  the  mode  in  which  other  tenants  of  the 
same  landlord  paid  their  rent  was  held  inadmissible. ^  And 
where,  in  covenant,  the  issue  was  whether  the  defendant,  who 
was  a  tenant  of  the  plaintiff,  had  committed  waste,  evidence  of 
bad  husbandry,  not  amounting  to  waste,  was  rejected.^  So,  where 
the  issue  was,  whether  the  tenant  had  permitted  the  premises  to 
be  out  of  repair,  evidence  of  voluntary  waste  was  held  irrelevant.  ** 
This  rule  was  adhered  to,  even  in  the  cross-examination  of  wit- 
nesses; the  party  not  being  permitted,  as  will  be  shown  here- 
after, ^  to  ask  the  witness  a  question  in  regard  to  a  matter  not 
relevant  to  the  issue,  for  the  purpose  of  afterwards  contradicting 
him.  ^(6) 


2  Carter  v.  Pryke,  Peake's  Cas.  95. 

3  Harris  v.  :Maiitle,  3  T.  R.  307.  See  also  Balcetti  v.  Serani,  Peake's  Cas.  142  ; 
Funieaux  v.  Hutcluns,  Cowp.  807  ;  Doe  v.  Sisson,  12  East,  62  ;  Holconibe  v.  Hewson, 
2  Cainpl).  391  ;  Viiiey  v.  Brass,  1  Esp.  292  ;  Clothier  v.  Chapman,  14  East,  331,  n. 

*  Edge  V.  Pemberton,  12  M.  &  W.  187. 
5  See  infra,  §§  448,  449,  450. 

«  Crowley  v.  Page,  7  C.  &  P.  789  ;  Harris  v.  Tippett,  2  Campb.  637  ;  Rex  v.  Wat- 
son, 2  Stark.  116  ;  Com.  v.  Buzzell,  16  Pick.  157,  158  ;  Ware  v.  Ware,  8  Greenl.  42. 


asked  to  state  their  experiments  to  the 
jury,  so  far  as  they  are  connected  with  and 
illustrate  the  opinions  which  they  have 
given.  Eidt  v.  Cutter,  127  Mass.  522  ; 
Williams  v.  Taunton,  125  Id.  34  ;  Lincoln 
V.  Taunton  Copper  Company,  9  Allen 
(Mass.),  181;  Cora.  v.  Piper,  120  Mass. 
185.  And  so  in  general  where  the  ques- 
tion is  a  matter  of  science,  and  where  the 
facts  proved,  though  not  directly  in  issue, 
tend  to  illustrate  the  opinions  of  scientific 
witnesses.  Thus,  where  the  point  in  dis- 
pute was  whether  a  sea-wall  had  caused 
the  choking  up  of  a  harbor,  and  engineers 
were  called  to  give  their  opinions  as  to  the 
effect  of  the  wall,  proof  that  other  harbors 
on  the  same  coast,  where  there  were  no 
embankments,  had  begun  to  be  choked 
about  the  same  time  as  the  harbor  in 
(question,  was  admitted,  as  such  evidence 
served  to  elucidate  the  reasoning  of  the 
skilled  witnesses.  Folkes  v.  Chadd,  3 
Doug.  157  ;  M'Fadden  v.  Murdock,  I.  R. 
1  C.  L.  211. 

Evidence  is  always  admissible  which 
shows  that  a  person  had  a  motive  for  do- 
ing an  act,  or  made  preparation  for  such 
act,  if  the  act  is  in  issue  or  tends  to 
prove  a  fact  in  issue  (Com.  v.  Hudson, 
97  Mass.  565  ;  McKee  v.  People,  36  N.  Y. 
113;  Kelsoe  ?;.  State,  47  Ala.  573;  Boyd 
V.  State,  4  Baxt.  (Tenn.)  319;  Garber  i'. 
State,  4  Cold.  (Tenn.)  161,  165;  Kolb  v. 


Whiteley,  3  G.  &  J.  188  ;  Stephen,  Dig. 
Evid.  art.  7),  or  which  shows  the  subse- 
quent conduct  of  the  person  to  be  such 
as  would  have  been  likely  if  the  act  had 
been  committed.  Furnas  v.  Durgin,  119 
Mass.  500  ;  Butler  v.  Collins,  12  Cal.  457. 

So,  also,  evidence  which  explains  any 
fact  in  issue,  or  identifies  any  person  or 
thing,  or  fixes  the  time  or  place  of  an  act, 
or  shows  the  relation  of  parties  to  an  act, 
or  shows  an  opportunity  for  the  occur- 
rence of  such  act,  or  shows  the  relevancy 
of  other  facts,  is  admissible  for  those  pur- 
poses. Steven,  Dig.  Evid.,  art.  9  ;  Ma- 
son V.  State,  42  Ala.  532  ;  Rex  v.  Pearce, 
Peake,  75  ;  Rex  v.  Egerton,  R.  &  R.  375  ; 
Rex  V.  Briggs,  2  Moo.  &  R.  199  ;  Rex  r. 
Rooney,  7  C.  &  P.  517. 

It  will  generally  be  found  that  the 
circumstances  of  the  parties  to  the  suit, 
and  the  position  in  which  thej'  stood  when 
the  matter  in  controversy  occurred  (Wood- 
ward V.  Buchanan,  L.  R.  5  Q.  B.  285), 
are  proper  subjects  of  evidence  ;  and  in- 
deed the  change  in  the  law,  making  par- 
ties witnesses  for  themselves,  has  rendered 
this  i>roof  of  "surrounding  circumstances" 
still  more  important  than  formerly.  Dow- 
ling  V.  Dowling,  10  Ir.  C.  Law,  241, 
where  it  was  held  that,  in  an  action  for 
money  lent,  the  poverty  of  the  lender  was 
relevant. 

(h)  Combs  V.  Winchester,  39  N.  H.  1. 


88  LAW   OF   EVIDENCE.  [PART    II. 

§  53.  Exceptions.  In  some  cases,  however,  evidence  has  been 
received  of  facts  which  happened  before  or  after  the  principal 
transaction,  and  which  had  no  direct  or  apparent  connection  with 
it;  and  therefore  their  admission  might  seem,  at  first  view,  to 
constitute  an  exception  to  this  rule.  But  those  will  be  found  to 
have  been  cases  in  which  the  knowledge  or  intent  of  the  party  was 
a  material  fact,  on  which  the  evidence,  apparently  collateral,  and 
foreign  to  the  main  subject,  had  a  direct  bearing,  and  was  there- 
fore admitted.  Thus,  when  the  question  was,  whether  the  de- 
fendant, being  the  acceptor  of  a  bill  of  exchange,  either  knew 
that  the  name  of  the  payee  was  fictitious,  or  else  had  given  a 
general  authority  to  the  drawer  to  draw  bills  on  him  payable  to 
fictitious  persons,  evidence  was  admitted  to  show  that  he  had 
accepted  other  bills,  drawn  in  like  manner,  before  it  was  pos- 
sible to  have  transmitted  them  from  the  place  at  which  they  bore 
date.i  So,  in  an  indictment  for  knowingly  uttering  a  forged 
document,  or  a  counterfeit  bank-note,  proof  of  the  possession,  or 
of  the  prior  or  subsequent  utterance  of  other  false  documents  or 
notes,  though  of  a  different  description,  is  admitted,  as  material 
to  the  question  of  guilty  knowledge  or  intent. ^  So,  in  actions 
for  defamation,  evidence  of  other  language,  spoken  or  written  by 
the  defendant  at  other  times,  is  admissible  under  the  general 
issue  in  proof  of  the  spirit  and  intention  of  the  party  in  uttering 
the  words  or  publishing  the  libel  charged ;  and  this,  whether  the 
language  thus  proved  be  in  itself  actionable  or  \\ot.^{a)  Cases 
of  this  sort,  therefore,  instead  of  being  exceptions  to  the  rule,  fall 
strictly  within  it.  {h) 

A  further  reason  may  be,  that  the  evidence,  not  being  to  a  material  point,  cannot  be 
the  subject  of  an  indictment  for  perjury.     Odiorne  v.  Winkley,  2  Gall.  51,  53. 

1  Gibson  v.  Hunter,  2  H.  Bl.  288  ;   Minet  v.  Gibson,  3  T.  R.  481  ;   1  H.  Bl.  569. 

2  Rex  V.  Wylie,  1  New  Rep.  92,  94.  See  other  examples  in  McKenney  v.  Dingley, 
4  Greenl.  172  ;  Bridge  v.  Eggleston,  14  Mass.  245  ;  Rex  v.  Ball,  1  Campb.  3*24  ;  Rex 
V.  Roberts,  1  Campb.  399  ;  Rex  v.  Hough,  Russ.  &  Ry.  130  ;  Rex  v.  Smith,  4  C.  &  P. 
411  ;  Rickman's  Case,  2  East,  P.  C.  1035;  Robinson's  Case,  Id.  1110,  1112  ;  Rex  v. 
Northampton,  2  M.  &  S.  262  ;  Com.  v.  Turner,  3  Mete.  19.  See  also  Bottomley 
V.  United  States,  1  Story,  143,  144,  where  this  doctrine  is  clearly  expounded  by 
Story,  J.  ^        „     • 

3  Pearson  v.  Le  Maitre,  5  M.  &  Gr.  700  ;  .s.  c.  6  Scott,  N.  R.  60/  ;  Rustell  v. 
Macnuister,  1  Campb.  49,  n.  ;  Saunders  v.  Mills,  6  Bing.  213  ;  Warwick  v.  Foulkes, 
12  M.  &  W.  507  ;  Long  u.  Barrett,  7  Ir.  Law,  439  ;   .s.  c.  8  Jr.  Law,  331,  on  error. 

(a)  See  also  pos<,  vol.  iii.§  418;  2  Stark,  is  not  proper  to   raise   a  presumption  of 

Slander,  53-57.  g"ilt   on  the   ground    that,  having  cora- 

(6)  The  principle  seems  to  be  well  set-  niitted  one  crime,  the  depravity  it  exhibits 

tied  in  accord  with  the  statement  in  the  makes  it  likely  that  he  would  commit  an- 

text.     The   general  rule   undoubtedly  is,  other.     Shaffner  v.  Com.,  72   Pa.  St.  60. 

that  a  distinct   crime,  unconnected  with  In  all  criminal  cases,  however,  where  the 

that  laid  in   the  indictment,  cannot   be  felonious   intent  or  guilty  knowledge   is 

given  in  evidence  against  a  prisoner.     It  a  material  part  of  the  crime,  evidence  is 


CHAP.    I.] 


THE   RELEVANCY   OF    EVIDENCE. 


89 


§  53  a.   Title  to  lands.     In  proof  of  the  oivnerslup  of  lands,  by 
acts  of  possession,  the  same  latitude  is  allowed.     It  is  impossible, 


admissible  of  similar  acts  of  the  prisoner 
at  (lillereut  times,  it  such  acts  tend  to  prove 
tlie  existence  of  such  guilty  knowledge  or 
felonious  intent.  Thus,  where  the  prisoner 
was  indicted  for  an  attempt  to  obtain  money 
from  a  pawnbroker  by  false  pretences  that 
a  ring  was  a  diamond  ring,  it  was  hekl  tliat 
evidence  that  he  had  sliortly  bel'ore  otfeied 
other  false  articles  of  jewelry  to  other  pawn- 
brokers was  admissible  to  show  guilty 
knowledge.  Reg.  v.  Francis,  12  Cox,  C  C. 
612.  In  Com.  v.  Jackson,  132  Mass.  16,  it 
was  held  that,  where  one  was  indicted  for 
falsely  pretending  that  a  certain  horse  was 
sound,  with  knowledge  that  such  assertion 
was  false,  it  was  held  that  evidence  of  the 
circumstances  of  three  other  sales  of  horses 
made  by  the  same  person,  with  false  rep- 
resentations, was  inadmissible,  on  the 
ground  that  there  was  no  evidence  of  any 
continuing  plan  running  through  the 
whole  transaction,  nor  was  any  instru- 
ment used  like  the  base  coin  or  false  plate 
of  counterfeiters,  which  might  have  been 
uttered  innocently,  and  of  which  a  guilty 
knowledge  was  important  to  be  shown. 
This  case  is  somewhat  opposed  to  the  cur- 
rent of  authorities.  Cf.  Reg.  v.  Francis, 
supra;  Reg.  v.  Geering,  18  L.  T.  N.  s. 
M.  C.  215;  and  Com.  y.  Coe,  115  Mass. 
481.  So,  also,  other  i  eceipts  of  stolen  goods 
from  same  thief,  knowing  them  to  be  sto- 
len, are  admissible  in  an  indictment  for 
receiving  stolen  goods,  on  the  ([uestion  of 
intent  (Copperman  v.  Peojde,  56  N.  Y. 
591),  though  it  also  proves  a  violation  of 
another  law.  Schaser  v.  State,  36  Wis. 
429  ;  Coleman  v.  People,  58  N.  Y.  555  ; 
Schriedly  v.  State,  23  .Ohio  St.  130.  And, 
as  supporting  this  general  ]irinciple,  see 
Com.  V.  Half,  4  Allen  (Mass.),  305  ;  Com. 
V.  McCarthy,  119  IMass.  354  ;  Com.  v. 
Cotton,  138  Mass.  500  ;  Gassenheimer 
V.  State,  52  Ala.  314  ;  Hall  v.  State,  40 
Id.  698  ;  State  v.  Thomas,  30  La.  An. 
Pt.  I.  600;  Wiley  v.  State,  3  Cold.  (Tenn.) 
362 ;  Somerville  v.  State,  6  Te,x.  App. 
433  ;  Card  v.  State,  109  Ind.  420  ;  People 
V.  Diniick,  107  N.  Y.  31  ;  Brown  v.  State, 
26  Ohio  St.  176  ;  Lightfoot  v.  People,  16 
Mich,  507  ;  Kramer  v.  Com.,  87  Pa.  St. 
299.  But  the  rule  was  more  cautiously 
laid  down  in  a  case  in  Pennsylvania,  where 
it  was  said  that,  to  make  one  criminal  act 
evidence  of  another,  a  connection  must 
have  existed  in  the  mind  of  the  actor, 
linking  them  together  for  some  purpose  he 
intended  to  accomplish  ;  or  it  must  be 
necessary  to  identify  the  ])erson  of  the 
actor  by  a  connection  which  shows  that 


he  who  committed  one  act  nmst  have  done 
the  other.    Schati'ner  v.  (Jom.,  72  Pa.  St.  CO. 

Wiiere  it  is  necessary  to  prove  the  crime 
of  adultery,  as  this  is  generally  done  by  cir- 
cumstantial evidence,  to  ])rove  two  jwints, 
—  the  adulterous  disposition  and  the  op- 
portunity for  adulterous  intercourse,  — 
evidence  may  be  given  of  other  adulterous 
acts,  before  and  after  the  adultery  charged, 
to  show  the  existence  of  the  adulterous 
disposition.  Thayer  v.  Tiiayer,  101  ]\lass. 
Ill  (overruling  Com.  v.  Thrasher,  11  Gray 
(Mass.),  450,  and  Com.  v.  Horton,  2  Id. 
354,  contra)  ;  Boddy  y.  Boddv,  30  L.  J.  Pr. 
&  Mat.  23;  Com.  v.  Curtis,  97  Mass.  574. 

Evidence  is  also  admissible  whenever 
there  is  a  ([uestion  whether  an  act  was 
accidental  or  intentional,  to  show  that 
the  act  was  one  of  a  series  of  similar  oc- 
currences, in  each  of  which  the  person 
doing  the  act  was  concerned.  Stephen, 
Dig.  Evid.  art.  12.  Thus  it  has  been  held 
that  wliere  a  prisoner  was  charged  with 
the  murder  of  her  child  by  poison,  and 
her  defence  was  that  the  death  resulted 
from  the  accidental  taking  of  such  poison, 
evidence  was  admissible  to  prove  that  two 
other  children  of  the  prisoner,  and  a  lodger 
in  her  house,  had  died  from  the  same  poi- 
son. Reg.  V.  Cotton,  12  Cox,  C.  C.  400. 
And  to  the  same  effect  are  Reg.  v.  Geering, 
18  L.  J.  M.  C.  215  ;  Reg.  v.  Garner,  3  F. 
&  F.  681  ;  Reg.  v.  Heesom,  14  Cox,  C.  C. 
40.  So  where  the  defendant  was  tried  for 
suffocating  her  infant  in  bed,  evidence  was 
admitted  that  the  defendant  had  had  four 
other  children  who  died  at  early  ages  by 
causes  not  shown.  Reg.  v.  Roden,  12  Cox, 
C.  C.  630,  per  Leech,  J.,  who  followed 
Reg.  V.  Cotton,  supra,  and  said  that  the 
Lord  Chief  Justice  and  he  were  consulted 
by  Archibald,  J.,  who  presided  in  that 
case,  and  who  also  consulted  Pollock,  B. 
And  to  this  etl'ect  are  Wood  v.  United 
States,  16  Peters  (U.  S.),  342;  Faucett 
V.  Nichols,  64  N.  Y.  383  ;  Friend  v. 
Hamill,  34  Md.  298  ;  Com.  v.  Robinson, 
146  Mass.  571.  So  on  question  of  guilty 
knowledge  whether  certain  bills  were 
forged,  it  was  held  that  evidence  of  the 
defendant's  subsequent  jiossession  and  use 
of  other  similar  forged  bills,  knowing 
them  to  be  false,  in  a  continuous  series  of 
transactions,  was  competent  to  show  that 
his  use  of  the  former  was  not  innocent. 
Com.  V.  White,  145  Mass.  392  ;  People  v. 
Everhardt,  104  N.  Y.  595.  Where  a 
jtrisoner  is  tried  for  a  particular  crime,  it 
is  always  competent  to  show  u]ion  the 
question  of  his  guilt,  that  he  had  made  or 


90 


LAW  OF   EVIDENCE. 


[part  II. 


as  has  been  observed,  to  coiifine  the  evidence  to  the  precise  spot 
on  which  a  supposed  trespass  was  committed ;  evidence  may  be 
given  of  acts  done  on  other  parts,  provided  there  is  such  a  com- 
mon character  of  locality  between  those  parts  and  the  spot  in 
question,  as  would  raise  a  reasonable  inference  in  the  minds  of 
the  jury  that  the  place  in  dispute  belonp^ed  to  the  party,  if  the 
other  parts  did.  The  evidence  of  such  acts  is  admissiljle  proprio 
vigore,  as  tending  to  prove  that  he  who  did  them  is  the  owner  of 
the  soil ;  though  if  they  were  done  in  the  absence  of  all  persons 
interested  to  dispute  them,  they  are  of  less  weight.  ^  (a) 


1  Jones  V.  Williams,  2  M.  &  W.  326,  per  Parke,  B. 
332  ;  2  Bing.  N.  C.  102. 


And  see  Doe  v.  Kemp,  7  Bing. 


attempted  at  some  prior  time,  not  too  dis- 
tant, to  commit  the  same  offense.  People 
V.  O'SiiUivan,  104  N.  Y.  483  ;  State  v. 
Ward,  61  Vt.  181  ;  Com.  v.  Jackson,  132 
Mass.  16  ;  State  v.  Knapp,  4.5  N.  H.  148, 
156;  Sharp  r.  State,  15  Tex.  App.  171; 
State  V.  Walters,  45  Iowa,  389  ;  State  v. 
Way,  5  Neb,  287.  Upon  the  trial  of  a 
prisoner  for  murder  it  is  competent  to 
show  that  he  had  made  previous  threats 
or  attempts  to  kill  his  victim.  People  v. 
Jones,  99  N.  Y.  667.  Upon  the  same 
principle  it  is  competent  to  show  that  one 
charged  with  rape  had  previously  declared 
his  intention  to  commit  the  offence,  or  had 
previously  made  an  unsuccessful  attemjit 
to  do  so,  and  this  evidence  is  not  rendered 
incompetent  because  it  comes  from  the 
complainant  herself.  It  may  not  be  as 
valuable,  or  trustworthy,  or  important,  as 
if  it  had  come  from  other  witnesses.  Peo- 
ple V.  O'SuUivan,  supra. 

The  rule  excluding  evidence  of  other 
crimes  does  not  apply,  moreover,  when 
the  crime  charged  in  the  indictment  is  so 
linked  with  some  other  crime  that,  in 
proving  one,  the  same  evidence  would 
prove  the  other.  Thus,  where  a  scheme 
is  formed  for  the  commission  of  several 
crimes,  and  an  indictment  is  brought  for 
the  commission  of  one,  evidence  of  the 
preparation  made  to  carry  out  the  scheme 
is  admissible,  though  involving  proof  of 
other  crimes  ;  for  evidence  which  has  a 
direct  bearing  upon  the  crime  charged 
does  not  become  inadmissil)le  because  it 
])roves  some  other  crime.  Com.  v.  Scott, 
123  Mass.  222;  ("om.  ?■.  Campbell,  7  Allen 
(Mass.),  541  ;  Com.  i'.  Corkm,  136  Mass. 
429.  So  where  one  was  accused  of  larceny, 
evidence  which  shows  his  whereabouts 
at  the  time  of  the  larceny  is  admissible, 
although  it  proves  a  distinct  larceny. 
State  V.  Folwell,  14  Kans.  105  ;  Phillip 
V.  People,  57  Barb.  (N.  Y.)  353  ;   Rex  v. 


Baker,  2  Moo.  &  R.  53  ;  and  cf.  Rex  v. 
Wiley,  1  N.  R.  94  ;  Brown  v.  Com.,  73 
Pa.  St.  321. 

In  civil  cases,  where  the  intent  or  men- 
tal state  of  a  person  is  a  material  fact, 
evidence  of  similar  acts  to  that  which 
forms  the  gist  of  the  action  may  be  given 
in  issue  if  they  tend  to  show  the  state  of 
mind  of  such  person.  This  kind  of  evidence 
is  most  frequently  given  when  the  question 
of  fraud  is  raised.  In  such  a  case,  evidence 
of  other  acts  of  a  similar  nature,  done  by 
the  .same  })erson,  resulting  in  injury  to 
other  people  or  an  unlawful  advantage  to 
the  person  doing  them,  is  admissible 
to  show  the  fraudulent  intent.  Blake  v. 
Albion  Life  Assurance  Society,  L.  R.  4  C. 
P.  Div.  94 ;  Huntingford  v.  Massey,  1  F.  &. 
F.  690  ;  Jordan  v.  Osgood,  109  Mass.  457  ; 
Castle  V.  BuUard,  23  How.  (U.  S.)  172; 
Butler  V.  Collins,  12  Cal.  457  ;  French  v. 
White,  5  Duer  (N.  Y.),  254. 

In  civil  causes,  too,  evidence  of  collat- 
eral facts  is  sometimes  received  for  the 
purpose  of  confirming  the  testimony  of 
witnesses.  For  instance,  where  a  party 
was  sued  on  a  bill  of  exchange,  which  had 
been  accepted  in  his  name  by  another  per- 
son, and  evidence  had  been  given  that  this 
person  had  a  general  authority  from  the 
defendant  to  accept  bills  in  his  name,  the 
court  held  that  an  admission  by  the  de- 
fendant of  his  liability  on  another  bill  so 
accepted,  was  receivable  in  evidence,  in 
order  to  confirm  the  witness  who  had  spo- 
ken to  the  general  authoritv.  Llewellyn 
V.  Winckworth,  13  M.  &  W.  598.  See 
Hollingham  v.  Head,  27  L.  J.  C.  P.  241  ; 
s.  r.  4  Com.  B.  X.  s.  388  ;  Morris  v. 
Bethell,  L.  R.  4  C.  P.  765  ;  s.  c.  38  L.  J. 
C.  P.  377  ;  s.  c.  L.  R.  5  C.  P.  47  ;  Tavlor 
Evid.  §  315.  Cf.  Com.  v.  Damon,  136 
Mass.  448. 

(a)  Simpson  v.  Dendv,  36  Eng.  L.  & 
Eq.  366. 


CHAP.    I.]  THE  RELEVANCY   OP   EVIDENCE.  91 

§  54.  General  character.  To  this  rule  may  be  referred  the  ad- 
missibility of  evidence  of  the  general  character  of  the  parties. 
In  civil  cases,  such  evidence  is  not  admitted,  unless  the  nature 
of  the  action  involves  the  general  character  of  the  party,  or  goes 
directly  to  affect  it.^  (a)  Thus,  evidence  impeaching  the  previous 
general  character  of  the  wife  or  daughter,  in  regard  to  chastity, 
is  admissible  in  an  action  by  the  husband  or  father  for  seduction ; 
and  this,  again,  may  be  rebutted  by  counter  proof. ^  But  such 
evidence,  referring  to  a  time  subsequent  to  the  act  complained  of, 
is  rejected. 3  And,  generally,  in  actions  of  tort,  wherever  the 
defendant  is  charged  with  fraud  from  mere  circumstances,  evi- 
dence of  his  general  good  character  is  admissible  to  repel  it.^ 

1  Attorney-General  v.  Bowman,  2  B.  &  P.  532,  expressly  adopted  in  Fowler  v.  iEtnn 
Fire  Ins.  Co.,  6  Cowen,  673,  675  ;  Anderson  v.  Long,  10  S.  &  K.  55;  Hnniphrey  v. 
Humphrey,  7  Conn.  116  ;  Nash  v.  Gilkeson,  5  S.  &  K.  352  ;  Jetl'ries  v.  Harris,  3  Hawks, 
105. 

^  Bate  V.  Hill,  1  C.  &  P.  100  ;  Verry  v.  Watkins,  7  C.  &  P.  308  ;  Carpenter  v.  Wall, 
11  Ad.  &  El.  803  ;  s.  c.  3  P.  &  D.  457  ;  Elsam  v.  Faneett,  2  Esp.  562  ;  Dodd  v.  Nor- 
ris,  3  Campb.  519.     See  contra,  McRae  v.  Lilly,  1  Iredell,  118. 

3  Elsam  V.  Faneett,  2  Esp.  562  ;  Coot  v.  Berty,  12  Mod.  232.  The  rule  is  the  same 
in  an  action  by  a  woman  for  a  breach  of  a  promise  of  marriage.  See  Johnston  v.  Caul- 
kins,  1  Johns.  Cas.  116  ;  Boynton  v.  Kellogg,  3  Mass.  189  ;'Foulkes  v.  Sellway,  3  Esp. 
236  ;  Bamfield  v.  Massey,  1  Campb.  460  ;   Dodd  v.  Norris,  3  Campb.  519. 

4  Ruan  V.  Perry,  3  Caines,  120.  See  also  Walker  v.  Stephenson,  3  Esp.  284.  This 
case  of  Kuan  v.  Perry  has  sometimes  been  mentioned  with  disapprobation  ;  but,  when 
correctly  understood,  it  is  conceived  to  be  not  opposed  to  the  well-settled  rule,  that 
evidence  of  general  character  is  admissible  only  in  cases  where  it  is  involved  in  the 
issue.  In  that  case  the  commander  of  a  national  frigate  was  sued  in  trespass  for  seizing 
and  detaining  the  plaintiff's  vessel,  and  taking  her  out  of  her  course,  by  means  whereof 
she  was  captured  by  an  enemy.  The  facts  were  clearly  proved  ;  but  the  question  was, 
whether  the  defendant  acted  in  honest  obedience  to  his  instructions  from  the  navy 
department,  which  were  in  the  case,  or  with  a./nmdulent  intent,  and  in  collusion  with 
the  captors,  as  the  plaintiff  alleged  to  the  juiy,  and  attempted  to  sustain  bv  some  of 
the  circumstances  jtroved.  It  was  to  repel  this  imputation  of  fraudulent  intent,  inferred 
from  slight  circumstances,  that  the  defendant  was  permitted  to  appeal  to  his  own  "  fair 
and  good  reputation."  And  in  contirming  this  decision  in  bank,  it  was  observed  that, 
"  in  actions  of  tort,  and  especially  charging  a  defendant  with  gross  depravity  and  fraud, 
upon  circumstances  merely,  evidence  of  uniform  integrity  and  good  character  is  often- 
times the  only  testimony  which  a  defendant  can  oppose  to  suspicious  circumstances." 
On  this  ground  this  case  was  recognized  by  the  Court  as  good  law,  in  Fowler  v.  yEtna 
Fire  Ins.  Co.,  6  Cowen,  675.  And  five  years  afterwards,  in  Townsend  v.  Graves,  3 
Paige,  455,  456,  it  was  again  cited  with  approbation  by  Chancellor  Walworth,  who  laid 
it  down  as  a  general  rule  of  evidence,  "  that  if  aparty  is  charged  with  a  crime,  or  any 
other  act  involving  moral  turpitude,  which  is  endeavored  to  be  fastened  upon  him  by 
circumstantial  evidence,  or  by  the  testimony  of  witnesses  of  doubtful  credit,  he  may 
introduce_  proof  of  his  former  good  character  for  honesty  and  integrity,  to  rebut  the 
presumption  of  guilt  arising  from  such  evidence,  which  it  may  be  impossiltle  for  him  to 
contradict  or  explain."  In  Gough  v.  St.  John,  16  Wend.  646,  the  defendant  was  sued 
in  an  action  on  the  case,  for  a  false  representation  as  to  the  solvency  of  a  third  person. 

(a)  McCarty  v.  Leary,  118  Mass.  509  ;  Comst.  (N.  Y.)  493  ;  Porter  v.  Seller.  23 

Tenney  v.  Tuttle,  1  Allen   (Mass.),  185  ;  Pa.  St.  424  ;   Goldsmith  v.  Picard,  27  Ala. 

Jacobs  V.  Duke,  1    E.   D.  Smith   (N.  Y.),  142.      Cf.    Spears   v.    International    Ins. 

271 ;  Revill  v.  Pettit,  3  Mete.  (Ky.)  314  ;  Co.,  57  Tenn.  370,  and  Schmidt  v.   New 

Wright  V.  McKee,  37  Yt.  161  ;   Lander  v.  York,  &c.   Ins.  Co.,  1   Gray  (Mass.),  529. 

Seaver,  32  Id.  114  ;   Pratt  v.  Andrews,  4  535. 


92  LAW   OP   EVIDENCE.  [PART   II. 

So,  also,  in  criminal  prosecutions,  the  charge  of  a  rape,  or  of  an 
assault  with  intent  to  commit  a  rape,  is  considered  as  involving 
not  only  the  general  character  of  the  prosecutrix  for  chastity, 
but  the  particular  fact  of  her  previous  criminal  connection  with 
the  prisoner,  though  not  with  other  persons,^ (^>)  And  in  all 
cases,  where  evidence  is  admitted  touching  the  general  character 
of  the  party,  it  ought  manifestly  to  bear  reference  to  the  nature 
of  the  charge  against  him.^ 

§  55.  Same  subject.  It  is  not  every  allegation  of  fraud  that 
may  be  said  to  put  the  character  in  issue ;  for,  if  it  were  so,  the 
defendant's  character  would  be  put  in  issue  in  the  ordinary  form 
of  declaring  in  assumpsit.  This  expression  is  technical,  and 
confined  to  certain  actions,  from  the  nature  of  which,  as  in  the 
preceding  instances,  the  character  of  the  parties,  or  some  of  them, 
is  of  particular  importance.  This  kind  of  evidence  is  therefore 
rejected,  whenever  the  general  character  is  involved  by  the  plea 

The  representation  itself  was  in  writing,  and  verbal  testimony  was  offered,  tending  to 
show  that  the  defendant  knew  it  to  be  false.  To  rebut  this  charge,  proof  that  the 
defendant  sustained  a  good  character  for  honesty  and  fairness  in  dealing  was  oflered 
and  admitted.  Cowen,  J.,  held,  that  the  fraudulent  intent  was  a  necessary  inference 
of  law  from  the  falsity  of  the  representation  ;  and  that  the  evidence  of  character  was 
improperly  admitted.  He  proceeded  to  cite  and  condemn  the  case  of  Rnan  v.  Terry,  as 
favoring  the  general  admissibility  of  evidence  of  character  in  civil  actions,  for  injuries 
to  property.  But  such  is  manifestly  not  the  doctrine  of  that  case.  It  only  decides, 
that  where  intention  (not  knoivledgc)  is  the  point  in  issue,  and  the  proof  consists  of 
slight  circumstances,  evidence  of  character  is  admissible.  The  other  judges  agieed 
that  the  evidence  was  improperly  admitted  in  that  case,  but  said  nothing  as  to  the 
case  of  Euan  v.  Perry.  They  denied,  however,  that  fraud  was  in  such  cases  an  in- 
ference of  law.  (c) 

The  ground  on  which  evidence  of  good  character  is  admitted  in  criminal  prosecu- 
tions is  this,  that  the  intent  with  which  the  act,  charged  as  a  crime,  was  done,  is  of  the 
essence  of  the  issue  ;  agreeably  to  the  maxim,  "  Nemo  reus  est,  nisi  mens  sit  rea  ; " 
and  the  prevailing  character  of  the  party's  mind,  as  evinced  by  the  previous  habit  of 
his  life,  is  a  material  element  in  discoveVing  that  intent  in  the  instance  in  question. 
Upon  the  same  principle,  the  same  evidence  ought  to  be  admitted  in  all  other  cases, 
whatever  be  the  form  of  proceeding,  where  the  intent  is  material  to  be  found  as  a  fact 
involved  in  the  issue. 

5  Rex  V.  Clarke,  2  Stark.  241  ;  1  Phil.  &  Am.  on  Evid.  490  ;  Low  v.  Mitchell,  6 
Shepl.  372  ;  Commonwealth  v.  Murphy,  14  Mass.  387 ;  2  Stark.  Evid.  (by  MetcalO 
369,  n.  (1);  Rex  v.  Martin,  6  C.  &  P.  562  ;  Rex  v.  Hodgson,  Russ.  &  Ry.J.H  ;  Regina 
V.  Cla)%  5  Cox,  Cr.  Cas.  146.  But  in  an  action  on  the  case  for  seduction,  evidence  of 
particular  anf-s  of  unchastitv  with  other  persons  is  admissible.  Verry  v.  Watkins,  7  C. 
fc  Pj_308.  rWhere  one  is  charged  with  keeping  a  house  of  ill  fame  after  the  statute 
went  into  operation,  evidence  of  the  bad  reputation  of  the  house  before  that  time,  was 
held  admissible,  as  conducing  to  prove  that  it  sustained  the  same  reputation  after- 
awards.  Cadwell  v.  State,  17  Conn.  467. 
"-  ^Douglass  V.  Tousey,  2  Wend.  352. 

(h)  O'Blenis  v.  State,  47  N.  J.  L.  279.  (c)  Bronson,  C.  J.,  in  Pratt  v.  Andrews, 
Also,  the  charge  of  an  indecent  assault  4  N.  Y.  493,  says  Ruan  v.  Perry  was 
(Cora.  V.  Kendall,  113  ]\Iass.  210)  ;  for  the  "long  since  overruled."  See  also  Ham- 
general  admissibility  of  the  character  of  son  v.  Russell,  1  Wils.  (Ind.)392  ;  Porter 
the  defendant  in  criminal  cases,  see  post,  v.  Seller,  23  Pa.  St.  424. 
vol.  iii.  §  25  et  seq. 


CHAP.  I.] 


THE   RELEVANCY   OF    EVIDENCE. 


93 


only,  and  not  by  the  nature  of  the  action.  ^  Nor  is  it  received  in  ac- 
tions of  assault  and  battery  ;2  nor  in  assumpsit  ;-'^  nor  in  trespass 
on  the  case  for  malicious  prosecution;*  (a)  nor  in  an  information 
for  a  penalty  for  violation  of  the  civil,  police,  or  revenue  laws;^ 
nor  in  ejectment,  brought  in  ordei'to  set  aside  a  will  for  fraud 
committed  by  the  defendant.^  >  Whether  evidence  impeaching  the 
plaintiff's  previous  general  character  is  admissible  in  an  action 
of  slander,  as  affecting  the  question  of  damages,  is  a  point  which 
has  been  much  controverted;  but  the  weight  of  authority  is  in 
favor  of  admitting  such  evidence."  (5)      But  it  seems  that  the 


1  Anderson  v.  Long,  10  S.  &  R.  55  ;  Potter  v.  Webb  et  al.,  6  GreenL  14  ;  Gregory 
V.  Thomas,  2  Bibb,  286. 

2  Givens  v.  Bradley,  3  Bibb,  192.  But  in  the  Admiralty  Courts,  where  a  seaman 
sues  af^ainst  the  master  for  damages,  for  illegal  and  unjustifiable  punishment,  his 
general  conduct  and  character  during  the  voyage  are  involved  in  the  issue.  Pettingill 
V.  Dinsniore,  Daveis,  208,  214. 

3  Nash  V.  Gilkeson,  5  S.  &  R.  352. 
*  -Gregory  v.  Thomas,  2  Bibb,  286. 

5  Attorney-General  v.  Bowman,  2  B.  &  P.  532  n. 

6  Goodright  v.  Hicks,  Bull.  N.  P.  296. 

T  2  Starkie  on  Slander,  88,  89-95,  n.;  Root  v.  King,  7  Cowen,  613;  Bailey  v.  Hyde, 
3  Conu.   463  ;  Bennett  v.  Hyde,    6  Conn.   24  ;  Douglass  v.   Tousey,   2  Wend.    353  ; 


(a)  It  seems  now  settled  that  when  a 
plaiiitilf  in  a  suit  for  malicious  prosecution 
founds  his  action  in  part  on  an  injury 
done  to  his  character  by  such  prosecution, 
he  thereby  puts  his  general  character  in 
issue,  and  that  whenever  the  action  is 
used  as  a  means  of  reparation  for  an  in- 
jury, in  whole  or  in  part,  to  general  char- 
acter, the  plaintiff  in  such  procedure 
must  stand  in  precisely  the  same  attitude 
that  a  plaintiff  in  an  action  for  libel  or 
slander  assumes,  and  that  the  general  bad 
character  of  tlie  plaintiff  at  the  time  of 
the  alleged  grievance  is  admissible  on  the 
part  of  the  defence  in  mitigation  of  dam- 
ages, on  the  broad  ground  that  it  cannot 
be  just  that  a  man  of  infamous  character 
should,  for  the  same  libellous  matter,  be 
entitled  to  equal  damages  with  the  man  of 
unblemished  leputation.  O'Brien  v.  Fra- 
sier,  47  N.  J.  L.  354  :  Mclntire  v.  Lever- 
ing, 148  Mass.  546  ;  Bacon  v.  Towne,  4 
Cash.  217  ;  Fitzgibbon  v.  Brown,  43 
Me.  169.  Whether  such  testimony  is 
proper  on  the  issue  of  reasonable  cause 
for  the  coniluct  of  the  defendant,  is  a 
question  not  fully  settled.  0'I]rien  v. 
Frasier,  sap.,  but  it  was  held  relevant  in 
Mclntire  v.  Levering,  siip. 

In  Pennsylvania,  in  civil  cases,  evi- 
dence of  general  character  is  not  admissi- 
ble, unless  from  the  nature  of  the  action, 
character  is  directly  drawn  in  issue,  as  in 
libel  or  slander  and  seduction.     Putting 


character  in  issue,  is  in  that  State  a  tech- 
nical expression  which  does  not  signify 
merely  that  personal  reputation  is  inciden- 
tally involved  in  the  consequences  or  re- 
sults of  the  action,  but  that  the  action  in 
its  nature  directly  involves  the  question  of 
character.  Thus  in  Nash  v.  Gilkeson,  5 
S.  &  R.  352,  evidence  of  the  defendant's 
good  character  was  rejected  although  ac- 
tual fraud  was  imputed  to  him  in  tlxe  evi- 
dence of  the  plaintiff ;  and  in  Anderson  v. 
Long,  10  S.  &  R.  55,  the  plaintiff  was 
refused  permission  to  show  good  character, 
although  the  defendant  set  up  his  fraud 
by  way  of  defence.  In  Porter  v.  Seller, 
23  Pa.  St.  424,  the  action  of  trespass  was 
brought  to  recover  damages  for  an  injury 
wilfully  inflicted  with  a  knife,  and  evi- 
dence of  the  defendant's  good  character, 
as  a  peaceable  man  was  excluded  when 
offered  for  the  purpose  of  rebutting  malice. 
So  in  Zitzer  v.  Merkel,  24  Pa.  St.  408,  it 
was  held  that  evidence  of  the  defendant's 
good  character  was  inadmissible  in  an  ac- 
tion on  the  case  for  seduction.  In  Porter 
V.  Seller,  supra,  the  authorities  are  care- 
fully collected,  and  the  whole  subject  elab- 
orately considered. 

(h)  Insurance  Co.  v.  Hazen,  110  Pa. 
St.  537  ;  Powers  v.  Presgroves,  38  Miss. 
227  ;  Shroyer  v.  Miller,  3  W.  Va.  158  ; 
Springstein  v.  Fiidd,  Anthon  (N.  Y.),  252; 
Paddock  v.  Salisbury,  2  Cowen  (N.  Y.), 
811.     See  also  post,   vol.   ii.  §§  424-426. 


94  LAW   OF   EVIDENCE.  [PART   II. 

character  of  the  party,  in  regard  to  any  particular  trait,  is  not 
in  issue,  unless  it  be  the  trait  which  is  involved  in  the  matter 
charged  against  him ;  and  of  this  it  is  only  evidence  ol  general 
reputation,  which  is  to  be  admitted,  and  not  positive  evidence  of 
general  bad  conduct.^  (c) 

Ininan  v.  Foster,  8  Wend.  602;  Larned  v.  Buffington,  3  Mass.  552  :  Walcott  v.  Hall, 
6  Mass.  514  ;  Koss  v.  Laphaiu,  14  Mass.  275  ;  Botlwell  v.  Swan,  3  Pick.  378  ;  Buford 
V.  M'Luny,  1  Nott  &  McCoid,  268;  Sawyer  v.  Eifert,  2  Nott  &  McCord,  511  ;  King  v. 

Waring,  et  ux.,  5  Esp.  14  ;  Rodriguez  v.  Tadniire,  2  Esp.  721  ;  v.  Moor,  1  M.  & 

S.  284  ;  Earl  of  Leicester  v.  Walter,  2  Campb.  251  ;  Williams  v.  Callender,  Holt's 
Cas.  307  ;  2  Stark.  Evid.  216.  In  Foot  v.  Tracy,  1  Jolms.  46,  the  Supreme  Court  of 
New  York  was  etiually  divided  upon  this  ([uestion  ;  Kent  and  Thompson,  JJ.,  being  in 
favor  of  admitting  the  evidence,  and  Livingston  and  Tompkins,  JJ.,  against  it.  In 
England,  according  to  the  later  authorities,  evidence  of  the  general  bad  character  of  the 
plaTntitf  seems  to  be  regarded  as  irielevant,  and  therefore  inadmissible.  Phil.  &  Am. 
on  Evid.  488,  489;  Cornwall  v.  Richardson,  Py.  &  Mood.  305;  Jones  r.  Stevens,  11 
Price,  235.  In  this  last  case  it  is  observable,  that  though  the  reasoning  of  the  learned 
judges,  and  especially  of  Wood,  B.,  goes  against  the  admission  of  the  evidence,  even 
though  it  be  of  the  most  general  nature,  in  any  case,  yet  the  record  before  the  court 
contained  a  plea  of  justification  aspersing  the  professional  character  of  the  plaintiff  in 
general  averments,  without  stating  any  ])articular  acts  of  bad  conduct  ;  and  the  point 
was,  whether,  in  support  of  this  plea,  as  well  as  in  contradiction  of  the  declaration,  the 
defendant  should  give  evidence  that  the  plaintiff  was  of  general  bad  character  and  re- 
pute, in  his  practice  and  business  of  an  attorney.  The  Court  strongly  condemned  the 
pleading  as  reprehensible,  and  said  that  it  ought  to  have  been  demurred  to,  as  due  to 
the  Com-t,  and  to  the  judge  who  tried  the  cause.  See  J'Anson  v.  Stuart,  1  T.  R.  748  ; 
2  Smith's  Leading  Cases,  37.  See  also  Rhodes  v.  Bunch,  3  McCord,  66.  In  A\  illiston 
V.  Smith,  3  Kerr,  443,  which  was  an  action  for  slander  by  charging  the  defendant 
with  larceny,  the  defendant,  in  mitigation  of  damages,  offered  evidence  of  the  jilaintifTs 
general  bad  character;  which  the  judge  at  Nisi  Prius  rejected;  and  the  Court  held 
the  rejection  proper;  observing  that,  had  the  evidence  been  to  the  plaintiffs  general 
character  for  honesty,  it  might  have  been  admitted. 

8  Swift'3  Evid.  140;  Ross  v.  Lapham,  14  Massr  275;  Douglass  v.  Tousey,  2  Wend. 
352;  Andrews  v.  Vanduzer,  11  Johns.  38;  Root  v.  King,  7  Cowen,  613;  Newsam  t;. 
Carr,  2  Stark.  69  ;  Sawyer  v.  Eifert,  2  Nott  &  McCord,  611. 

In  some  cases,  reputation  for  a  special  plaintiff  to  show  that  a  fellow-servant 
trait  or  characteristic  becomes  relevant  to  "  was  generally  reputed  to  be  infirm  in  the 
the  case.  For  instance,  where  the  ques-  senses  of  sight  and  heariiig,  and  in  physical 
tion  was,  whether  a  sale  was  absolute  with  strength,"  was  made  foi-  the  purpose  of 
a  credit,  or  conditional,  it  was  held  that  proving  that  the  defendant  either  knew  of 
the  buyer's  bad  reputation  for  financial  these  infirnuties  or  by  tlie  exercise  of  rea- 
ability  was  admissible  as  tending  to  show  sonable  care  would  have  known  of  them; 
that  the  sale  was  not  a  credit.  Bu.swell  and  it  was  held  that  the  evidence  was 
Trimmer  Co.  v.  Case,  144  Mass.  350.  competent  on  the  ground  that  the  master 
So  in  an  action  against  one  for  injuries  is  bound  to  use  reasonable  care  in  select- 
sustained  while  in  his  employment,  working  ing  his  servants,  and  if  a  person  is  incom- 
on  a  pile-driver,  through  the  ne^igence  of  i)etent  for  the  work  he  is  employed  to  do, 
the  defendant's  foreman,  it  was  held  that  the  fact  that  he  was  generally  reputed  in 
evidence  was  admissible  that  the  foreman's  the  community  to  want  those  qualities 
reputation  for  competency  was  bad.  This  which  are  necessary  for  the  proper  per- 
evidence  was  admitted  on  the  ground  that  formance  of  the  work,  certainly  has  some 
it  was  the  duty  of  the  defendant  to  pro-  tendency  to  show  that  the  master  woiild 
cure  and  retain  a  competent  person  as  have  found  out  that  the  servant  was  in- 
foreman  in  his  employ  ;  and  the  evidence  competent,  if  proper  means  had  been  taken 
of  reputation  was  admitted  as  affecting  the  to  ascertain  the  qualifications  of  the  ser- 
defendant's  knowledge  of  the  foreman's  vant.  Monahan  r.  Worcester,  150  Mass. 
incompetency.  Hatt  v.  Nay,  144  Mass.  440.  See  also  ante,  §  51  a,  note  h. 
186.  (c)  Bruce  v.  Priest,  5  Allen  (Mass.), 
So,  in  a  similar  case,  the  offer  of  the  100;  Leonard  i'.  Allen,  11  Cush,  (Mass.) 


CHAP.    I.] 


THE   RELEVANCY   OP   EVIDENCE. 


95 


241,  245  ;  Watson  v.  Moore,  2  Id.  133  ; 
Orcutt  V.  Riuiney,  10  Id.  183  ;  Stone  v. 
Varney,  7  Mete' (Mass.)  86;  Frazier  v. 
Pennsylvania,  &c.  K.  K.  Co.,  38  Fa.  St. 
104.  Nor  can  character  be  shown  by  evi- 
dence of  particular  acts;  but  if  the  (jues- 
tion  is  as  to  certain  liabits,  these  may  be 
shown  by  instances  of  the  existence  of  the 
habits,  provided  tliese  instances  are  in  the 
opinion  of  tlie  Court  near  enough  in  time 


to  the  time  of  the  offence  committed  and 
otlierwise  so  connected  with  evidence  in 
the  case  as  to  be  lelevant.  Com.  v.  Ab- 
bott, 130  Mass.  472;  Com.  v.  Ryan,  134 
Mass.  223.  When  a  party  to  a  case  takes 
the  stand  as  a  witness,  his  character  for 
truth  and  veracity  may  be  impeached  or 
supported  as  that  of  any  witness  may. 
Foster  v.  Newbrough,  68  N,  Y.  481. 


96  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER  II. 

OF   THE   SUBSTANCE   OF   THE   ISSUE. 

§  56.  SufEciency  of  evidence.  A  second  rule  which  governs  in 
the  production  of  evidence  is,  that  it  is  sufficient,  if  the  substance 
of  the  issue  he  j)roved.  In  the  application  of  this  rule,  a  distinc- 
tion is  made  between  allegations  of  matter  of  substance,  and  alle- 
gations of  matter  of  essential  description.  The  former  may  be 
substantially  proved ;  but  the  latter  must  be  proved  with  a  degree 
of  strictness,  extending  in  some  cases  even  to  literal  precision. 
No  allegation,  descriptive  of  the  identity  of  that  which  is  legally 
essential  to  the  claim  or  charge,  can  ever  be  rejected.  ^  (a)  Thus 
in  an  action  of  malicious  prosecution,  the  plaintiff  alleges  that  he 
was  acquitted  of  the  charge  on  a  certain  day ;  here  the  substance 
of  the  allegation  is  the  acquittal,  and  it  is  sufficient,  if  this  fact 
be  proved  on  any  day,  the  time  not  being  material.  But  if  the 
allegation  be,  that  the  defendant  drew  a  bill  of  exchange  of  a 
certain  date  and  tenor,  here  every  allegation,  even  to  the  precise 
day  of  the  date,  is  descriptive  of  the  bill,  and  essential  to  its 
identity,  and  must  be  literally  proved. ^  So  also,  as  we  have 
already  seen,  in  justifying  the  taking  of  cattle  damage  feasant, 
because  it  was  upon  the  close  of  the  defendant,  the  allegation  of 
a  general  freehold  title  is  sufficient ;  but  if  the  party  states,  that 
he  was  seised  of  the  close  in  fee,  and  it  be  traversed,  the  precise 
estate,  which  he  has  set  forth,  becomes  an  essentially  descriptive 
allegation,  and  must  be  proved  as  alleged.  In  this  case  the  essen- 
tial and  non-essential  parts  of  the  statement  are  so  connected 
as  to  be  incapable  of  separation,  and  therefore  both  are  alike 
material.  3 

1  stark.  Evid,  373  ;  Purcell  v.  Macnamara,  9  East,  160 ;  Stoddart  v.  Palmer,  3  B. 
&  C.  4;  Turner  v.  Eyles,  3  B.  &  P.  456;  Ferguson  v.  Harwood,  7  Cranch,  408,  413. 

2  3  B.  &  C.  4,  5;  Glassford  on  Evid.  309. 

3  Stephen  on  Pleading,  261,  262,  419;  Turner  v.  Eyles,  3  B.  &  P.  456;  2  Saund. 
206  a,  n.  22;  Sir  Francis  Leke's  Case,  Dyer,  364  6.  Perhaps  the  distinction  taken  by 
Lord  EUenborough,  in  Purcell  v.  Macnamara,  and  recognized  in  Stoddart  v.  Palmer, 
3  B.  &  C.  4,  will,  on  closer  examination,  result  merely  in  this,  that  mattei's  of  descrip- 
tion are  matters  of  substance,  when  they  go  to  the  identity  of  anything  material  to  the 
action.  Thus  the  rule  will  stand,  as  originally  stated,  that  the  substance,  and  this 
alone,  must  be  proved. 

(a)  See  post,  vol.  ii.  §§  2-11. 


CHAP.    II.]  THE   SUBSTANCE    OF   THE    ISSUE.  97 

§  57.  Matter  of  description.  Whether  an  allegation  is  or  is  not 
so  essentially  descrii)tive,  is  a  point  to  be  determined  by  the 
judge  in  the  case  before  him;  and  it  depends  so  much  on  the 
particular  circumstances,  that  it  is  difficult  to  lay  down  any  pre- 
cise rules  by  which  it  can  in  all  cases  be  determined.  It  may 
depend,  in  the  first  place,  on  the  nature  of  the  averment  itself, 
and  the  subject  to  which  it  is  applied.  But  secondly^  some  aver- 
ments the  law  pronounces  formal  which  otherwise  would,  on 
general  principles,  be  descriptive.  And  thirdly^  the  question, 
whether  others  arc  descriptive  or  not,  will  often  depend  on  the 
technical  manner  in  which  they  arc  framed, 

§  58.  Same  subject.  In  the  first  place,  it  may  be  observed  that 
any  allegation  which  narrows  and  limits  that  which  is  essential 
is  necessarily  descriptive.  Thus,  in  contracts,  libels  in  writing, 
and  written  instruments  in  general,  every  part  operates  by  way 
of  description  of  the  whole.  In  these  cases,  therefore,  allega- 
tions of  names,  sums,  magnitudes,  dates,  durations,  terms,  and 
the  like,  being  essential  to  the  identity  of  the  writing  set  forth, 
must,  in  general,  be  precisely  proved.  ^  Nor  is  it  material  whether 
the  action  be  founded  in  contract  or  in  tort;  for  in  either  case, 
if  a  contract  be  set  forth,  every  allegation  is  descriptive.  Thus, 
in  an  action  on  the  case  for  deceit  in  the  sale  of  lambs  by  two 
defendants,  jointly,  proof  of  sale  and  warranty  by  one  only,  as 
his  separate  property,  was  held  to  be  a  fatal  variance."'^  So  also, 
if  the  contract  described  be  absolute,  but  the  contract  proved  be 
conditional,  or  in  the  alternative,  it  is  fatal. ^  The  consideration 
is  equally  descriptive  and  material,  and  must  be  strictly  proved 
as  alleged.^  (a)  Prescriptions,  also,  being  founded  in  grants  pre- 
sumed to  be  lost  from  lapse  of  time,  must  be  strictly  proved  as 
laid ;  for  every  allegation,  as  it  is  supposed  to  set  forth  that  which 
was  originally  contained  in  a  deed,  is  of  course  descriptive  of  the 
instrument,  and  essential  to  the  identity  of  the  grant. ^(^)     An 

1  Bristow  V.  Wright,  Doug.  665,  667  ;  Churchill  v.  Wilkins,  1  T.  R.  447;  1  Stark. 
Evid.  386,  388. 

2  Weall  V.  King  et  al.,  12  East,  4.52. 

8  Penny  v.  Porter,  2  East,  2;  Lopes  v.  De  Tastet,  1  Brod.  &  Bing.  538  ;  Higgins  v. 
Dixon,  10  Jur.  376;  Hilt  v.  Campbell,  6  Greenl.  109;  Stone  v.  Ivnowlton,  3  Wend. 
374.  See  also  Saxton  v.  Johnson,  10  Johns.  418;  Snell  v.  Moses,  1  Johns.  96  ;  Craw- 
ford V.  Morrell,  8  Johns.  253  ;  Baylies  v.  Fettyplace,  7  Mass.  325  ;  Robbins  v.  Otis.  1 
Pick.  368  ;  Harris  v.  Rayner,  8  Pick,  541  ;  White  v.  Wilson,  2  Bos.  &  Pul.  116  ; 
Whitaker  v.  Smith,  4  Pick.  83;  Lower  v.  Winters,  7  Cowen,  263;  Alexander  v.  Harris, 
4  Cranch,  299. 

*  Swallow  V.  Beaumont,  2  B.  &  Aid.  765  ;  Robertson  v.  Lvnch,  18  Johns.  451. 

6  Morewood  v.  Wood,  4  T,  R.  157;  Rogers  v.  Allen,  1  Campb.  309,  314,  315,  note 

(a)  Seepos^,  §  68.  (h)  See  also;)os<,  §  71. 

VOL.  t.   —  7 


98  LAW   OP   EVIDENCE.  [PART   II. 

allegation  of  the  character  in  which  the  plaintiff  sues,  or  of  his 
title  to  damages,  though  sometimes  superfluous,  is  generally 
descriptive  in  its  nature,  and  requires  proof. ^ 

§  59,  Formal  averments.  Secondly,  as  to  those  averments  which 
the  laiv  pronounces  formal,  though,  on  general  principles,  they 
seem  to  be  descriptive  and  essential,  these  are  rather  to  be  re- 
garded as  exceptions  to  the  rule  already  stated,  and  are  allowed 
for  the  sake  of  convenience.  Therefore,  though  it  is  the  nature 
of  a  traverse  to  deny  the  allegation  in  the  manner  and  form  in 
which  it  is  made,  and,  consequently,  to  put  the  party  to  prove  it 
to  be  true  in  the  manner  and  form,  as  well  as  in  general  effect ;  ^ 
yet  where  the  issue  goes  to  the  point  of  the  action,  these  words, 
modo  et  forma,  are  but  words  of  form.^  Thus,  in  trover,  for  ex- 
ample, the  allegation  that  the  plaintiff  lost  the  goods  and  that 
the  defendant  found  them  is  regarded  as  purely  formal,  requiring 
no  proof;  for  the  gist  of  the  action  is  the  conversion.  So,  in 
indictments  for  homicide,  though  the  death  is  alleged  to  have 
been  caused  by  a  particular  instrument,  this  averment  is  but 
formal ;  and  it  is  sufficient  if  the  manner  of  death  agree  in  sub- 
stance with  that  which  is  charged,  though  the  instrument  be  dif- 
ferent ;  as,  if  a  wound  alleged  to  have  been  given  with  a  sword 
be  proved  to  have  been  inflicted  with  an  axe.^  But,  where  the 
traverse  is  of  a  collateral  point  in  pleading,  there  the  words  modo 
et  forma,  go  to  the  substance  of  the  issue,  and  are  descriptive, 
and  strict  proof  is  required ;  as,  if  a  feoffment  is  alleged  by  deed, 
which  is  traversed  modo  etformd,  evidence  of  a  feoffment  with- 
out deed  will  not  suffice.*  Yet,  if  in  issues  upon  a  collateral 
point,  where  the  affirmative  is  on  the  defendant,  partial  and  de- 
fective proof  on  his  part  should  show  that  the  plaintiff  had  no 
cause  of  action,  as  clearly  as  strict  and  full  proof  would  do,  it  is 
sufficient.^ 

§  60.  If  descriptive  must  be  proved.  Thirdly,  as  to  those  aver- 
ments, whose  character,  as  being  descriptive  or  not,  depends  on 

(a).  But  proof  of  a  more  ample  right  than  is  alleged  will  be  regarded  as  mere  redun- 
dancy. Johnson  v.  Thoroughgood,  Hob.  64  ;  Bushwood  v.  Pond,  Cro.  El.  722  ;  Bail- 
iff's of  Tewkesbury  v.  Bricknell,  1  Taunt.  142;  Barges  v.  Steer,  1  Show.  347;  s.  c.  4 
Mod.  89. 

6  1  Stark.  Evid.  390 ;  Moises  v.  Thornton,  8  T.  R.  303,  308 ;  Berrynian  v.  Wise,  4 
T.  R.  366. 

1  Stephen  on  Pleading,  213. 

2  Trials  per ^jaw.  308  (9th  ed.);  Co.  Lit.  281  b. 
8  2  Russell  on  Crimes,  711;  1  East,  P.  C.  341. 

*  Bull.  N.  P.  301  ;  Co.  Lit.  281  b.  Whether  virtutc  cujus,  in  a  shpriff"s  plea  in 
justification,  is  traversable,  and  in  what  cases,  is  discussed  in  Lucas  v.  Nockells,  7 
Bligh.  N.  s.  140. 

5  Ibid  ;  2  Stark.  Ev.  394. 


CHAP.    IIJ  THE   SUBSTANCE   OF   THE   ISSUE.  99 

the  manner  in  which  they  are  stated.  Every  allegation,  essential 
to  the  issue,  must,  as  we  have  seen,  l)e  proved,  in  whatever  form 
it  be  stated ;  and  things  immaterial  in  their  nature  to  the  ques- 
tion at  issue  may  be  omitted  in  the  proof,  though  alleged  with 
the  utmost  explicitness  and  formality.  There  is,  however,  a 
middle  class  of  circumstances,  not  essential  in  their  nature, 
which  may  become  so  by  being  inseparably  connected  with  the 
essential  allegations.  These  must  l)e  proved  as  laid,  unless  they 
are  stated  under  a  videlicet;  the  office  of  which  is  to  mark,  that 
the  party  does  not  undertake  to  prove  the  precise  circumstances 
alleged ;  and  in  such  cases  he  is  ordinarily  not  holden  to  prove 
them.i  Thus  in  a  declaration  upon  a  bill  of  exchange,  the  date 
is  in  its  nature  essential  to  the  identity  of  the  bill,  and  must  be 
precisely  proved,  though  the  form  of  allegation  were,  "  of  a  cer- 
tain date,  to  wit,"  such  a  date.  On  the  other  hand,  in  the  case 
before  cited,  of  an  action  for  maliciously  prosecuting  the  plain- 
tiff for  a  crime  whereof  he  was  acquitted  on  a  certain  day,  the 
time  of  acquittal  is  not  essential  to  the  charge,  and  need  not  be 
proved,  though  it  be  directly  and  expressly  alleged. ^  But  where, 
in  an  action  for  breach  of  warranty  upon  the  sale  of  personal 
chattels,  the  plaintiff  set  forth  the  price  paid  for  the  goods,  with- 
out a  videlicet^  he  was  held  bound  to  prove  the  exact  sum  alleged, 
it  being  rendered  material  by  the  form  of  allegation  ;3  though, 
had  the  averment  been  that  the  sale  was  for  a  valuable  considera- 
tion, to  wit,  for  so  much,  it  would  have  been  otherwise.  A  vide- 
licet will  not  avoid  a  variance,  or  dispense  with  exact  proof,  in 
an  allegation  of  material  matter;  nor  will  the  omission  of  it 
always  create  the  necessity  of  proving,  precisely  as  stated,  matter 
which  would  not  otherwise  require  exact  proof.  But  a  party  may, 
in  certain  cases,  impose  upon  himself  the  necessity  of  proving 
precisely  what  is  stated,  if  not  stated  under  a  videlicet.'^  (a) 

1  Stephen  on  Pleadint^,  309  ;  1  Chittj'  on  PI.  261,  262,  348  (6th  ed.)  ;  Stiikelev  v. 
Butler,  Hob.  168,  17-2;  2  Saund.  291,  note  (1)  ;  Gleason  v.  McVickar,  7  Cowen,  42. 

2  Supra,  §  56  ;  Purcell  v.  Macnamara,  9  East,  160  ;  Gwinnet  v.  Phillips,  3  T.  R. 
643  ;  Vail  v.  Lewis,  4  Johns.  450, 

3  Durston  v.  Tuthan,  cited  in  3  T.  R.  67  ;  Svmmons  v.  Knox,  3  T.  R.  65  ;  Arnfield 
V.  Bate,  3  M.  &  S.  173  ;  Sir  Francis  Leke's  Case,  Dyer,  364  b  ;  Stephen  on  Pleading, 
419,  420  ;  1- Chitty  on  PI.  340  (6th  ed.). 

*  Crispin  v.  Williamson,  8  Taunt.  107,  112  :  Attorney-General  v.  Jeffreys,  M'Cl. 
277,;  2  B.  &  C.  3,  4;  1  Chitty  on  Plead.  348  a  ;  Grimwood  v.  Barrit,  6  T.  R.  460,  463  ; 
Rristow  V.  Wright,  2  Doug.  667,  668.  These  terms,  "  immaterial  "  and  "  impertinent," 
though  formerly  ap]ilied  to  two  classes  of  averments,  are  now  treated  as  synon_vmous 
(3  D.  &  R.  209)  ;  the  moi'e  accurate  distinction  being  between  these,  and  unnecessary 
allegations.  Immaterial  or  impertinent  averments  are  those  which  need  neither  be 
alleged  nor  proved  if  alleged.     Unnecessary  averments  consist  of  matters  which  need 

(")  See  &\s,o  post,  §  65. 


100  LAW   OF   EVIDEXCE.  [PART    II. 

§  61.   Time,   place,   quantity,   value,   &c.     But,   in  general,   the 
allegations  of  time,  place,  quantity,  quality,  and  value,  when  not 
descriptive  of  the  identity  of  the  subject  of  the  action,  will  be 
found  immaterial,  and  need  not  be  proved  strictly   as  alleged. 
Thus,  in  trespass  to  the  person,  the  material  fact  is  the  assault 
and  battery ;  the  time  and  place  not  being  material,  unless  made 
so  by  the  nature  of  the  justification,  and  the  manner  of  pleading. 
And,  in  an  action  on  a  policy  of  insurance,  the  material  allega- 
tion is  the  loss ;  but  whether  total  or  partial  is  not  material ;  and 
if  the  former  be  alleged,  proof  of  the  latter  is  sufficient.      So,  in 
assumpsit,  an  allegation  that  a  bill  of  exchange  was  made  on  a 
certain  day  is  not  descriptive,  and  therefore  strict  proof,  accord- 
ing to  the  precise  day  laid,  is  not  necessary ;  though,  if  it  were 
stated  that  the  bill  bore  date  on  that  day,  it  would  be  otherwise.  ^ 
Thus,  also,  proof  of  cutting  the  precise  number  of  trees  alleged 
to  have  been  cut,  in  trespass;  or,  of  the  exact  amount  of  rent 
alleged  to  be  in  arrear  in  replevin ;  or  the  precise  value  of  the 
goods  taken,  in  trespass  or  trover,  is  not  necessary. ^     Neither  is 
matter  of  aggravation,  namely,  that  which  only  tends  to  increase 
the  damages,  and  does  not  concern  the  right  of  action  itself,  of 
the  substance  of  the  issue.     But,  if  the  matter,  alleged  by  way  of 
aggravation,  is  essential  to  the  support  of  the  charge  or  claim, 
it  must  be  proved  as  laid. 

§  62.  Place  in  local  actions.  But  in  local  actions  the  allegation 
of  place  is  material,  and  must  strictly  be  proved,  if  put  in  issue. 
In  real  actions,  also,  the  statement  of  quality,  as  araljle  or  pas- 
ture land,  is  generally  descriptive,  if  not  controlled  by  some 
other  and  more  specific  designation.     And  in  these  actions,  as 

not  be  alleged  ;  but,  being  alleged,  must  be  proved.  Thus,  in  an  action  of  assumpsit 
upon  a  wan-anty  on  the  sale  of  goods,  an  allegation  of  deceit  on  the  part  of  the  seller  is 
impertinent,  and  need  not  be  proved.  Williamson  v.  Allison,  2  East,  4-16  ;  Panton  v. 
Holland,  17  Johns.  92  ;  Tvviss  v.  Baldwin,  9  Conn.  292.  So,  where  the  action  was  for 
an  inj 
close, 
and  s 

superfluous,  and  not  necessary  to  be  jn  . 

in  an  action  by  a  lessor  against  his  tenant,  for  negligently  keeping  his  hre,  a  demise 
for  seven  years  be  alleged,  and  the  proof  be  of  a  lease  at  will  only,  it  will  be  a  fatal 
variance  ;  for  though 'it  would  have  sufficed  to  have  alleged  tlie  tenancy  generally,  vet 
havintr  unnecessarily  .lualified  it,  by  stating  the  precise  term,  it  must  be  prftved  as  laid. 
Cudlip  V.  Rundel,  Carth.  202.  So.  in  debt  against  an  officer  for  extorting  illegal  fees 
ou  ?i  fieri  facias,  though  it  is  sufficient  to  allege  the  issuing  of  the  writ  of  fieri  facias, 
yet  if  the  plaintiff  also  unnecessarily  allege  the  judgment  on  which  it  was  founded,  he 
must  prove  it,  having  made  it  descriptive  of  the  principal  thing.  Savage  v.  Smith,  2 
W.  Bl.  1101  ;  Bristow  v.  Wright,  Doug.  668  ;  Gould's  PI.  160-165  ;  Draper  v.  Garratt, 
.  2  B.  &  C.  2.  ' 

1  Gardiner  v.  Croasdale,  2  Burr.  904  ;  Coxon  v.  Lyon,  2  Campb.  307,  n. 

2  Harrison  v.  Barnby,  5  T.  R.  248  ;  Co.  Lit.  282  a  ;  Stei^heu  on  Pleading,  318  ; 
Hutchins  v.  Adams,  3  Greenleaf,  174. 


CHAP.    II.]  THE   SUBSTANCE   OP   THE   ISSUE.  101 

well  as  in  those  for  injuries  to  real  property,  the  abuttals  of  the 
close  in  question  must  be  proved  as  laid ;  for  if  one  may  be  re- 
jected, all  may  be  equally  disregarded,  and  the  identity  of  the 
subject  be  lost.^  (a) 

§  63.  Variance.  It  being  necessary  to  prove  the  substance  of 
the  issue,  it  follows  that  any  departure  from  the  substance,  in  the 
evidence  adduced,  must  be  fatal ;  constituting  what  is  termed  in 
the  law  a  variance.  This  may  be  defined  to  be  a  disagreement 
l)etween  the  allegation  and  the  proof,  in  some  matter  which,  in 
point  of  law,  is  essential  to  the  charge  or  claim.  ^  It  is  the  legal, 
and  not  the  natural,  identity  which  is  regarded;  consisting  of 
those  particulars  only,  which  are  in  their  nature  essential  to  the 
action,  or  to  the  justification,  or  have  become  so  by  being  in- 
separably connected,  by  the  mode  of  statement,  with  that  which 
is  essential ;  of  which  an  example  has  already  been  given,^  in  the 
allegation  of  an  estate  in  fee,  when  a  general  averment  of  freehcMd 
would  suffice.  It  is  necessary,  therefore,  in  these  cases,  first  to 
ascertain  what  are  the  essential  elements  of  the  legal  proposition 
in  controversy,  taking  care  to  include  all  which  is  indispensable 
to  show  the  right  of  the  plaintiff,  or  party  affirming.  The  rule 
is,  that  whatever  cannot  be  stricken  out  without  getting  rid  of  a 
part  essential  to  the  cause  of  action,  must  be  retained,  and  of 
course  must  be  proved,  even  though  it  be  described  with  unneces- 
sary particularity.  3  The  defendant  is  entitled  to  the  benefit  of 
this  rule,  to  protect  himself  by  the  verdict  and  judgment,  if  the 
same  rights  should  come  again  in  controversy.  The  rule,  as 
before  remarked,  does  not  generally  apply  to  allegations  of  num- 
ber, magnitude,  quantity,  value,  time,  sums  of  money,  and  the 
like,  provided  the  proof  in  regard  to  these  is  sufficient  to  consti- 
tute the  offence  charged,  or  to  substantiate  the  claim  set  up; 
except  in  those  cases  where  they  operate  by  way  of  limitation,  or 
description  of  other  matters,  in  themselves  essential  to  the  offence 
or  claim.* (5) 

5  Mersey  &  Irwell  Nav.  Co.  v.  Douglas,  2  East,  497,  502  ;  Bull.  N.  P.  89  ;  Vowles 
V.  Miller,  3  Taunt.  139,  per  Lawrence,  J.  ;  Regina  v.  Cranage,  1  Salk.  385. 

1  Stephen  on  PI.,  107,  108. 

2  Supra,  §§  51-56. 

3  Bristow  V.  Wright,  Doug.  668  ;  Peppin  v.  Solomons,  5  T.  R.  496  ;  Williamson  v. 
Allison,  2  East,  446,  452. 

*  Supra,  §  61  ;  Rickets  v.  Salvvey,  2  B.  &  AIJ.  363  ;  May  i'.  Brown,  3  B.  &  C.  113, 
122.     It  has  been  said  that  allegations,  which  are  merely  matters  of  inducement,  do  not 

{a)  See  post,  vol.  ii.  §  618  a.  and  note),  the  questions  of  variance  have, 

(b)  Since  the  introduction  of  the  lib-  as  is  stated  in  the  text,  post,  §  73,  ceased 

eral  statutes,  giving  large  powers  of  amend-  to  have  much  practical  imi)ortance.     One 

nient  in  civil  cases  (cf.  post,  vol.  ii.  §  11  J  point,  however,  in  some  States  is  worthy 


102  LAW    OF   EVIDENCE.  [PART     II. 

§  64.  Variance.  A  few  examples  will  sufifice  to  illustrate  this 
subject.  Thus,  in  tort,  for  removing  earth  from  the  defendant's 
land,  whereby  the  foundation  of  the  plaintiff's  house  was  injured, 
the  allegation  of  bad  intent  in  the  defendant  is  not  necessary  to 
be  proved,  for  the  cause  of  action  is  perfect,  independent  of  the 
intention.^  So,  in  trespass,  for  driving  against  the  plaintiff's 
cart,  the  allegation  that  he  was  in  the  cart  need  not  be  proved.  ^ 
But,  if  the  allegation  contains  matter  of  description,  and  is  not 
proved  as  laid,  it  is  a  variance,  and  is  fatal.  Thus,  in  an  action 
for  malicious  prosecution  of  the  plaintiff,  upon  a  charge  of  felony, 
before  Baron  Waterpark  of  Waterfork,  proof  of  such  a  prosecution 
before  Baron  Waterpark  of  Waterpark  was  held  to  be  fatally 
variant  from  the  declaration. ^  So,  in  an  action  of  tort  founded 
on  a  contract,  every  particular  of  the  contract  is  descriptive,  and 
a  variance  in  the  proof  is  fatal.  As,  in  an  action  on  the  case  for 
deceit,  in  a  contract  of  sale,  made  by  the  two  defendants,  proof 
of  a  sale  by  one  of  them  only,  as  his  separate  property,  was  held 
insufficient ;  for  the  joint  contract  of  sale  was  the  foundation  of 
the  joint  warranty  laid  in  the  declaration,  and  essential  to  its 
legal  existence  and  validity.*  («) 

§  65.  In  criminal  cases.  In  criminal  prosecutions,  it  has  been 
thought  that  greater  strictness  of  proof  was  required  than  in  civil 
cases,  and  that  the  defendant  might  be  allowed  to  take  advantage 
of  nicer  exceptions.^    But  whatever  indulgence  the  humanity  and 

require  such  strict  proof  as  those  which  are  precisely  put  in  issue  between  the  parties. 
Smith  V.  Taylor,  1  New  Rep.  210,  per  Chamhre,  J.  But  this  distinction,  as  Mr.  Starkie 
justly  observes,  between  that  which  is  the  gist  of  the  action  and  that  which  is  induce- 
ment, is  not  always  clear  in  principle.  1  Stark.  Evid.  391,  u.  (b)  ;  3  Stark.  Evid. 
1551,  n.  (x)  Metcalf's  ed.  Certainly  that  which  may  be  traversed,  must  be  proved,  if 
it  is  not  admitted  ;  and  some  facts,  even  though  stated  in  the  form  of  inducement,  may 
be  traversed,  because  they  are  material  ;  as,  for  example,  in  action  for  slander,  upon  a 
charge  for  perjury,  where  the  plaintiff  alleged,  by  way  of  inducement,  tliat  he  was 
sworn  before  the  Lord  Mayor.  Stephen  on  Pleading,  258.  The  question  whether  an 
allegation  must  be  proved,  or  not,  turns  upon  its  materiality  to  the  case,  and  not  upon 
the  form  in  which  it  is  stated,  or  its  place  in  the  declaration.  In  general,  every  allega- 
tion in  an  inducement,  which  is  material,  and  not  impertinent,  and  foreign  to  the  case, 
and  which  consequently  cannot  be  rejected  as  surplusage,  must  be  proved  as  alleged. 
1  Chitty  on  PI.  262,  320.  It  is  true  that  those  matters  which  need  not  be  alleged  with 
particulaiity,  need  not  be  pj'oved  with  particularity,  but  still,  all  allegations,  if  mate- 
rial, must  be  proved  substantially  as  alleged. 

1  Panton  v.  Holland,  17  Johns.  92  ;  twiss  v.  Baldwin,  9  Conn.  291. 

2  Howard  v.  Peete,  2  Chitty,  315. 

3  AValters  v.  Mace,  2  B.  &  Aid.  756. 

*  Weall  V.  King,  et  al.,  12  East,  452  ;  Lopes  v.  De  Tastet,  1  B.  &  B.  538. 
^  Beech's  Case,  1  Leach's  Cas.  (3d  ed.)  158  ;  United  States  v.  Porter,  3  Da)^  283, 
286. 

of  notice,  —  i.  e.,  that  when   a  valid  at-  the  effect  of  discharging  the  attachment, 

tachment  of  the  defendant's  goods  is  made  Freeman  r.  Creech,  112  Mass.  180. 

upon  a  writ  or  petition,  any  amendment,  (a)  See  Ashley  v.   Wolcott,  11  Cush. 

if  it  is  more  than  merely  formal,  may  have  (Mass.)  192. 


CHAP.    II.]  THE   SUBSTANCE   OP   THE   ISSUE.  103 

tenderness  of  judges  may  have  allowed  in  practice,  in  favor  of  life 
or  liberty,  the  better  opinion  seems  to  be  that  the  rules  of  evi- 
dence are  in  both  cases  the  same. ^  (a)  If  the  averment  is  divisi- 
ble, and  enough  is  proved  to  constitute  the  offence  charged,  it  is 
no  variance,  though  the  remaining  allegations  are  not  proved. 
Thus,  an  indictment  for  embezzling  two  bank-notes  of  equal  value 
is  supported  by  proof  of  the  embezzlement  of  one  only.^  And  in 
an  indictment  for  obtaining  money  upon  several  false  pretences, 
it  is  sufficient  to  prove  any  material  portion  of  them.'*  But  where 
a  person  or  thing,  necessary  to  be  mentioned  in  an  indictment, 
is  described  with  unnecessary  particularity,  all  the  circumstances 
of  the  description  must  be  proved;  for  they  are  all  made  essen- 
tial to  the  identity.  Thus,  in  an  indictment  for  stealing  a  black 
horse,  the  animal  is  necessarily  mentioned,  but  the  color  need 
not  be  stated;  yet  if  it  is  stated,  it  is  made  descriptive  of  the 
particular  animal  stolen,  and  a  variance  in  the  proof  of  the  color 
is  fatal.  ^  (5)  So,  in  an  indictment  for  stealing  a  bank-note,  though 
it  would  be  sufficient  to  describe  it  generally  as  a  bank-note  of 
such  a  denomination  or  value,  yet,  if  the  name  of  the  officer  who 
signed  it  be  also  stated,  it  must  be  strictly  proved.^  (c)  So,  also, 
in  an  indictment  for  murder,  malicious  shooting,  or  other  offence 
to  the  person,  or  for  an  offence  against  the  habitation,  or  goods, 
the  name  of  the  person  who  was  the  subject  of  the  crime,  and  of 

2  Roscoe's  Crim.  Evid.  73  ;  1  Deacon's  Dig.  Crim.  Law,  459,  460.  And  see  2  East, 
P.  C.  785,  1021  ;  1  Phil.  Evid.  506  ;  Rex  v.  Watson,  2  Stark.  116,  155,  per  Abbott, 
J.  ;  Lord  Melville's  Case,  29  Howell's  St.  Tr.  1376;  2  Russell  on  Crimes,  588  ;  United 
States  V.  Britten,  2  Mason,  464,  468. 

8  Carson's  Case,  Riiss.  &  Ry.  303  ;  Furneaux's  Case,  Id.  335  ;  Tyer's  Case,  Id.  402. 

4  Hill's  Case,  Russ.  &  Ry.  190. 

8  1  Stark.  Evid.  374. 

^  Craven's  Case,  Russ.  &  Ry.  14.  So,  where  the  charge  in  an  indictment  was  of 
stealing  70  pieces  of  the  current  coin  called  sovereigns,  and  140  pieces  called  half 
sovereigns,  and  500  pieces  called  crowns ;  it  was  held,  that  it  was  not  supported  by 
evidence  of  stealing  a  sum  of  money  consisting  of  some  of  the  coins  mentioned  in  the 
indictment,  without  proof  of  some  one  or  more  of  the  specific  coins  charged  to  have 
been  stolen.     Regina  v.  Bond,  1  Den.  C.  C.  517  ;  14  Jur.  390. 

{a)  Kline  f.  Baker,  106  Mass.  61;  and  offence  is  laid  between  certain  dates,  the 

see  also  post,  vol.  ii.  §  426.  dates  are  descriptive  and  the  offence  can 

(b)  State  V.  Jackson,  30  Me.  29  ;   Rex  only  be  proved  between  those  dates.    Com. 

V.  Deeley,  1  Moody,  Cr.  Ca.  303.  v.    Purdy,    146    Mass.   138.      On   trial  of 

(c)  The  value  of  several  articles,  all  of  complaint  against  a  licensed  liquor  seller 

the  same  kind,  may  be  alleged  collectively,  for  ]>lacing   a  shutter  and   curtain   in   a 

if  all  are  proved.     Com.   v.    Falvey,   108  room  where  liquor  was  being  sold  contrary 

Mass.  304.     But,  if  a  part  only  are  proved,  to  law,  the  defendant  claimed,  that  as  the 

the    collective    value    is    insufficient,    as  license  jiroved  included  two  rooms  for  the 

those   not   proved   may  have  constituted  sale  of  li(|Uor,  and  the  complaint  alleged 

the   entire  value.     Com.   i'.   Lavery,   101  a  license  to  sell  in  one  room,  there  was  a 

Mass.  207.     In  criminal  cases,  if  the  of-  variance,  but  the  Court  held  not.     Com. 

fence  is  one  which  may  cover  many  days,  v.  Keefe,  140  Mass.  301. 
such  as  keeping  liquors  for  sale,  and  the 


104  LAW    OF    EVIDENCE,  [PART    II, 

the  owner  of  the  house  or  goods,  are  material  to  be  proved  as 
alleged.'^  But  where  the  time,  place,  person,  or  other  circum- 
stances are  not  descriptive  of  the  fact  or  degree  of  the  crime, 
nor  material  to  the  jurisdiction,  a  discrepancy  between  the  alle- 
gation and  the  proof  is  not  a  variance.  Such  are  statements 
of  the  house  or  field  where  a  rol)bery  was  committed,  the  time  of 
the  day,  the  day  of  the  term  in  which  a  false  answer  in  chancery 
was  filed,  and  the  like.^  In  an  indictment  for  murder,  the  sub- 
stance of  the  charge  is  that  the  prisoner  feloniously  killed  the 
deceased  by  means  of  shouting,  poisoning,  cutting,  blows,  or 
bruises,  or  the  like ;  it  is,  therefore,  sufficient,  if  the  proof  agree 
with  the  allegation  in  its  substance  and  general  character  with- 
out precise  conformity  in  every  particular.  In  other  words,  an 
indictment  describing  a  thing  by  its  generic  term  is  supported  by 
proof  of  a  species  which  is  clearly  comprehended  within  such 
description.  Thus,  if  the  charge  be  of  poisoning  by  a  certain 
drug,  and  the  proof  be  of  poisoning  by  another  drug;  or  the 
charge  be  of  felonious  assault  with  a  staff,  and  the  proof  be  of 
such  assault  with  a  stone ;  or  the  charge  be  of  a  wound  with  a 
sword,  and  the  proof  be  of  a  wound  with  an  axe ;  yet  the  charge 
is  substantially  proved,  and  there  is  no  variance.^  (cZ)  But  where 
the  matter,  whether  introductory  or  otherwise,  is  descriptive,  it 
must  be  proved  as  laid,  or  the  variance  will  be  fatal,  (e)     As,  in 

■^  Clark's  Case,  Russ.  &  Ry.  358  ;  White's  Case,  1  Leach's  Cas.  236  ;  Jenk's  Case, 
2  East,  P,  C.  514  ;  Durore's  Case,  1  Leach's  Cas.  390.  But  a  mistake  in  spelling  the 
name  is  no  variance,  if  it  be  idem  sonans  with  the  name  proved.  AVilliams  v.  Ogle, 
2  Str.  889  ;  Foster's  Case,  Kuss.  &  Ry.  412  ;  Tannett's  Case,  Id.  351  ;  Bingham  v. 
Dickie,  5  Taunt.  814.  So^  if  one  be  indicted  for  an  as.sault  upon  A  B,  a  deputy- 
sheriff,  and  in  the  officer's  commission  he  is  styled  A  B  junior,  it  is  no  variance  if  the 
person  is  proved  to  be  the  same.     Commonwealth  v.  Becklev,  3  Metcalf,  330. 

8  Wardle's  Case,  2  East,  P.  C.  785  ;  Pj-e's  Case,  lb.  ;  Johnstone's  Case,  Id.  7SG  ; 
Minton's  Case,  Id.  1021  ;  Rex  v.  Waller,  2  Stark.  Evid.  623  ;  Rex  v.  Hucks,  1  Stark. 
521. 

9  1  East,  P,  C,  341  ;  Martin's  Case,  5  Car,  &  P,  128  ;  Culkin's  Case,  Id.  121  ; 
supra,  §  58.  An  indictment  for  stealing  "  a  sheep  "  is  supported  by  proof  of  the 
stealing  of  any  sex  or  variety  of  that  animal ;  for  the  term  is  nomen  gencralissimum. 
M'Cully's  Case,  2  Lew.  C.  C.  272  ;  Regina  v.  Spicer,  1  Den.  C.  C,  82.  So,  if  the 
charge  be  of  death  by  suffocation,  by  the  hand  over  the  mouth,  and  the  proof  be  that 
respiration  was  stopped,  though  by  some  other  violent  mode  of  strangulation,  it  is 
sufficient.     Rex  v.  Waters,  7  C,  &  JP.  250, 

(d)  Com.  V.  Webster,  5  Cush,  (Mass.)  having  in  his  possession,  with  intent  to 
321,  323,  Com.  v.  McLaughlin,  105'  sell,  "one  pint  of  adulterated  milk,  to 
Mass,  460,  which  milk  water  had  been  added,"  it 
(e)  So,  when  an  indictment  against  was  held  tliat  the  government  must  prove 
two  alleged  the  crime  of  jointly  obtaining  that  water  had  been  added  to  milk  already 
money  under  false  pretences,  evidence  adulterated,  and  that  proof  of  the  addition 
that  the  crime  was  committed  by  one  was  of  water  only  to  the  milk  would  not  sup- 
held  to  be  a  fatal  variance.  Com,  t*.  poit  the  indictment.  Com.  v.  Luscomb, 
Pierce,  130  Mass.  31.  And  where  the  in-  Id.  42.  Cf.  Com.  v.  Moore,  Id.  45, 
dictment    charged    the     defendant    with 


CHAP.    II.]  THE   SUBSTANCE   OF   THE    ISSUE.  105 

an  indictment  for  perjury  in  open  court,  the  term  of  the  court 
must  be  truly  stated  and  strictly  proved.  ^°  So,  in  an  indictment 
for  perjury  before  a  select  committee  of  the  House  of  Commons, 
in  a  contested  election,  it  was  stated  that  an  election  was  holdcn 
by  virtue  of  a  precept  duly  issued  to  the  bailiff  of  the  borough  of 
New  Malton,  and  that  A  and  B  were  returned  to  serve  as  mem- 
bers for  the  said  borough  of  New  Malton ;  but  the  writ  appeared 
to  be  directed  to  the  l)ailiff  of  Malton.  Lord  Ellenborough  held 
this  not  matter  of  description;  and  the  precept  having  been  actu- 
ally issued  to  the  bailiff  of  the  borough  of  New  Malton,  it  was 
sufficient.  But  the  return  itself  was  deemed  descriptive;  and 
the  proof  being  that  the  members  were  in  fact  returned  as  mem- 
bers of  the  borough  of  Malton,  it  was  adjudged  a  fatal  variance.  ^^ 
So,  a  written  contract,  when  set  out  in  an  indictment,  must  be 
strictly  proved.  ^^ 

§  66.  In  contracts.  Thus,  also,  in  actions  upon  contract^  if  any 
part  of  the  contract  proved  should  vary  materially  from  that 
which  is  stated  in  the  pleadings,  it  will  be  fatal;  for  a  contract 
is  an  entire  thing,  and  indivisible.  It  will  not  be  necessary  to 
state  all  the  parts  of  a  contract  which  consists  of  several  distinct 
and  collateral  provisions;  the  gravamen  is,  that  a  certain  act 
which  the  defendant  engaged  to  do  has  not  been  done ;  and  the 
legal  proposition  to  be  maintained  is,  that,  for  such  a  considera- 
tion, he  became  bound  to  do  such  an  act,  including  the  time, 
manner,  and  other  circumstances  of  its  performance.  The  entire 
consideration  must  be  stated,  and  the  entire  act  to  be  done,  in 
virtue  of  such  consideration,  together  with  the  time,  manner,  and 
circumstances ;  and  with  all  the  parts  of  the  proposition,  as  thus 
stated,  the  proof  must  agree.  ^  If  the  allegation  be  of  an  absolute 
contract,  and  the  proof  be  of  a  contract  in  the  alternative,  at 
the  option  of  the  defendant;  or  a  promise  be  stated  to  deliver 
merchantable  goods,  and  the  proof  be  of  a  promise  to  deliver 
goods  of  a  second  quality ;  or  the  contract  stated  be  to  pay  or 
perform  in  a  reasonable  time,  and  the  proof  be  to  pay  or  perform 
on  a  day  certain,  or  on  the  happening  of  a  certain  event ;  or  the 
consideration  stated  be  one  horse,  bought  by  the  plaintiff  of  the 

13  Where  the  term  is  designated  by  the  day  of  the  month,  as  in  the  Circuit  Courts 
of  the  United  States,  the  precise  day  is  material.  United  States  v,  McNeal,  1  Gall. 
387. 

11  Rex  V.  Leefe,  2  Campb.  134,  140. 

12  2  East,  P.  C.  977,  978,  981,  982;  Commonwealth  v.  Parmenter,  5  Pick.  279;  The 
People  V.  Franklin,  3  Johns.  Cas.  299. 

1  Clarke  v.  Gray,  6  East,  564,  5C7,  568  ;  Gwinnet  v.  Phillips,  3  T.  R.  643,  646  ; 
Thornton  v.  Jones,  2  Marsh.  287;  Parker  v.  Palmer,  4  B,  &  A.  387  ;  Swallow  v.  Beau- 
mont, 2  B.  &  A.  765. 


106  LAW   OF    EVIDENCE.  [PART  II. 

defendant,  and  the  proof  be  of  two  horses ;  in  these  and  the  like 
cases,  the  variance  will  be  fatal.2(a) 

§  G7.  Redundancy  of  allegation,  and  of  proof.  There  is,  however, 
a  material  distinction  to  be  observed  between  the  redundancy  in 
the  allegation,  and  redundancy  only  in  the  jyroof.  In  the  former 
case,  a  variance  between  the  allegations  and  the  proof  will  be 
fatal,  if  the  redundant  allegations  are  descriptive  of  that  which 
is  essential.  But  in  the  latter  case,  redundancy  cannot  vitiate, 
merely  because  more  is  proved  than  is  alleged ;  unless  the  matter 
superfluously  proved  goes  to  contradict  some  essential  part  of  the 
allegation.  Thus,  if  the  allegation  were  that,  in  consideration 
of  ilOO,  the  defendant  promised  to  go  to  Rome,  and  also  to 
deliver  a  certain  horse  to  the  plaintiff,  and  the  plaintiff  should 
fail  in  proving  the  latter  branch  of  the  promise,  the  variance 
would  be  fatal,  though  he  sought  to  recover  for  the  breach  of  the 
former  only,  and  the  latter  allegation  was  unnecessary.  But, 
if  he  had  alleged  only  the  former  branch  of  the  promise,  the  proof 
of  the  latter  along  with  it  would  be  immaterial.  In  the  first 
case,  he  described  an  undertaking  which  he  has  not  proved ;  but 
in  the  latter,  he  has  merely  alleged  one  promise,  and  proved  that, 
and  also  another.  ^ 

2  Penny  v.  Porter,  2  East,  2  ;  Bristow  v.  Wright,  2  Dong.  665  ;  Hilt  v.  Campbell, 
6  Greenl.  109  ;  Symonds  v.  Carr,  1  Campb.  361 ;  King  v.  Robinson,  Cro.  El.  79.  See 
post,  vol.  ii.  §  lie?.  . 

1  1  Stark.  Evid.  401.  "Where  the  agreement,  as  in  this  case,  contains  several  distinct 
promises,  and  for  the  breach  of  one  only  the  action  is  brought,  the  consequences  of  a 

(a)  Where  the  declaration  set  forth  an  Buskirk,  4  Zabr.  (N.  J.)  218.     Where  a 

executory  agreement  of  the  defendant  to  do  note  was  described  in  the  declaration  as 

certain  work  for  a  certain  sum  and  within  payable  "  on  or  before  "  a  certain  day,  and 

a  certain  time,  on  materials  to  be  furnished  the  proof  was  that  it  was  payable,   "  on 

by   the    plaintiff,    and    alleged    that    the  tlie  day  named,  it  was  held  no  variance, 

plaintiff  did  furnish  the  materials  to  the  Jlorton  v.  Teniiy,  16  111.   494.     See  also 

defendant  in  season  for  him  to  complete  Walker?;.  Welch,  14  111.  277.   The  declara- 

the  stipulated  work  within  the  stipulated  tion  was  on  the  promise  to  pay  money  on 

time,  and  the  proof  was  that  the  plaintiff  demand  ;  the  proof  was  a  jtromise  to  pay 

had  not  performed  in  full  his  agreement,  in  commodities  ;   and  it  was  held   to    be 

but  that  he  was  e.xcused  from  the  perform-  a  variance.     Titus  v.  Ash,  24  N.  H.  319. 

ancethereofby  the  waiver  of  the  defendant,  So  a   declaration    on    a  note  not  alleged 

thevariance  was  held  fatal.    Colt  v.  Miller,  to  be  upon  interest  is  not  sustained   by 

lOCush   (Mass.)  49,  51.     See  also  Metzner  proof  of  a  note  in  other  respects  similar, 

V.  Bolton,  24  Eng.  Law  &  Eq.  537;  9  Exch.  but  drawing  interest.     Grngg  v.  Frye,  32 

518.    And  where  the  declaration  alleged  an  Me.  283.     There  can  be  no  doubt  of  the 

authority  to  one  G.  W.,  trading  as  G.  W.  &  admissibility  of  a  written  contract  in  evi- 

Co    tosell  coodsasthegoodsof  G.W.,and  dence  to  prove  the  contract  declared  on, 

the  proof  wa"s  of  an  authority  to  G.  W.  to  sell  though  the  declaration  does  not  aver  that 

the  goods  as  the  goods  of  G.  W.  &  Co.,  it  was  in  writing.     It  is  generally  unneces- 

the  variance  was  held  fatal.    Addingtouy.  sary,  in  declaring  on  a  simple  contract  m 

Ma"an,  2  Eng.  Law  &  Eq.  327  ;  10  C.  B,  writing,  to  allege  it  to  be  so.     This  allega- 

576"!    A  declaration  setting  out  a  note  pay-  tion  is  not  re(iuired  even_  in  declarations 

able  "without  defalcation  or  discount  "  is  on  contracts  that  are  within  the  statute  ot 

not  supported  by  proof  of  a  note  payable  frauds.     Fiedler  v.  Smith,  6  Cush.  (Mass.) 

♦'  without    defalcation."      Addis  v.    Van  340  ;  see  Irvine  v.  Stone,  Id.  508. 


CHAP,    II.]  THE   SUBSTANCE   OF   THE   ISSUE.  107 

§  68.  Consideration.  But  wherc  thc  subject  is  entire,  as,  for 
example,  the  consideration  oi  a  contract, ^  a  variance  in  the  proof, 
as  we  have  just  seen,  shows  the  allegation  to  be  defective,  and  is, 
therefore,  material.  '  Thus,  if  it  were  alleged  that  the  defendant 
promised  to  pay  £100,  in  consideration  of  thc  plaintiff's  going 
to  Rome,  and  also  delivering  a  horse  to  the  defendant,  an  omis- 
sion to  prove  the  whole  consideration  alleged  would  be  fatal. 
And  if  the  consideration  had  been  alleged  to  consist  of  the  going 
to  Rome  only,  yet  if  the  agreement  to  deliver  the  horse  were  also 
])roved,  as  forming  part  of  the  consideration,  it  would  be  equally 
fatal;  the  entire  thing  alleged,  and  the  entire  thing  proved,  not 
being  identical. ^  Upon  the  same  principle,  if  the  consideration 
alleged  be  a  contract  of  the  plaintiff  to  build  a  ship,  and  the  proof 
be  of  one  to  finish  a  ship  partly  built  ;^  or  the  consideration 
alleged  be  the  delivery  of  pine  timber,  and  the  proof  be  of  sj^ruce 
timber;'*  or  the  consideration  alleged  be,  that  the  plaintiff  ivould 
indorse  a  note,  and  the  proof  be  of  a  promise  in  consideration 
that  he  had  indorsed  a  note ;  ^  the  variance  is  equally  fatal,  {a) 
But  though  no  part  of  a  valid  consideration  may  be  safely  omitted, 
yet  that  which  is  merely  frivolous  need  not  be  stated;^  and,  if 
stated,  need  not  be  proved ;  for  the  court  will  give  the  same  con- 
struction to  the  declaration  as  to  the  contract  itself,  rejecting 
that  which  is  nonsensical  or  repugnant.'^ 

§  69.  Deeds.  In  the  case  of  deeds,  the  same  general  princi- 
ples are  applied.  If  the  deed  is  declared  upon,  every  part  stated 
in  the  pleadings,  as  descriptive  of  the  deed,  must  be  exactly 
proved,  or  it  will  be  a  variance;  and  this  whether  the  parts  set 

variance  may  be  avoided  by  alleging  the  promise,  as  made  niter  alia.  And  no  good 
reason,  in  principle,  is  perceived,  why  the  case  mentioned  in  the  following  section 
might  not  be  treated  in  a  similar  manner  ;  but  the  authorities  are  otherwise.  In  the 
examjile  given  in  the  text,  the  allegation  is  supposed  to  import  that  the  undertaking 
consisted  of  neither  more  nor  less  than  is  alleged. 

1  Swallow  V.  Beaumont,  2  B.  &  A.  765  ;  White  v.  Wilson,  2B.  &P.  116  ;  supra,  §  58. 

2  1  Stark.  Evid.  401  ;  Lansing  v.  M'Killip,  3  Caines,  286  ;  Stone  v.  Knowlton,  3 
Wend.  374. 

3  Smith  V.  Barker,  3  Day,  312. 
*  Kobbins  v.  Otis,  1  Pick.  368. 

^  Bulkley  v.  Landon,  2  Conn.  404. 

6  Brooks  V.  Lowrie,  1  Nott  &  McCord,  342. 

'  Ferguson  v.  Harwood,  7  Cranch,  408,  414. 

(a)   So  if  the  allegation  be  of  an  agree-  consideration  that  said,  &c.,  had  accepted 

ment  to  obtain  insurance  on  property,  "  in  the  assignment  of  a  certain  policy,"  &c., 

cousitleration  of  a  reasonable  coynmission,"  and  the  j)roof  was  that  "  the  policj'  having 

and  the  proof  be  of  an  agreement  to  obtain  been    assigned    to    us,    in    consideration 

the  insurance  in  consideration  of  a  de finite  thereof,  we  promise,"  &c.,  it  was  held  that 

s»?«,  the  variance  is  fatal.     Cleaves  ?'.  Lord,  there   was   a   variance.     New  Hampshire 

3  Gray  (Mass.),  66,  71.     And  where  the  Mutual,  &c.,  Ins.  Co.  v.   Hunt,  31  N.  H. 

declaration  alleged  that  the  defendant,  "  in  219. 


108  LAW   OF   EVIDENCE.  [PART   II. 

out  at  length  wore  necessary  to  bo  stated  or  not.^  If  a  qualified 
covenant  be  set  out  in  the  declaration  as  a  general  covenant, 
omitting  the  exception  or  limitation,  the  variance  between  the 
allegation  and  the  deed  will  be  fatal.  If  the  condition,  proviso, 
or  limitation  affects  the  original  cause  of  action  itself,  it  consti- 
tutes an  essential  element  in  the  original  proposition  to  be  main- 
tained by  the  plaintiff;  and,  therefore,  must  be  stated,  and  proved 
as  laid;  but,  if  it  merely  affects  the  amount  of  damages  to  be 
recovered,  or  the  liability  of  the  defendant  as  affected  by  circum- 
stances occurring  after  the  cause  of  action,  it  need  not  be  alleged 
by  the  plaintiff,  but  properly  comes  out  in  the  defence. ^  And, 
where  the  deed  is  not  described  according  to  its  tenor,  but  ac- 
cording to  its  legal  effect,  if  the  deed  agrees  in  legal  effect  with 
the  allegation,  any  verbal  discrepancy  is  not  a  variance.  As,  in 
covenant  against  a  tenant  for  not  repairing,  the  lease  being  stated 
to  have  been  made  by  the  plaintiff,  and  the  proof  being  of  a  lease 
by  the  plaintiff  and  his  wife,  she  having  but  a  chattel  interest; 
or,  if  debt  be  brought  by  the  husband  alone,  on  a  bond  as 
given  to  himself,  the  bond  appearing  to  have  been  given  to  the 
husband  and  wife;  yet,  the  evidence  is  sufficient  proof  of  the 
allegation. 3     But,  where  the  deed  is  set  out,  on  oyer,  the  rule  is 

1  Bowditch  r.  Mawley,  1  Canipb.  195  ;  Dundass  v.  Ld.  Weymouth,  Cowp.  665  ;  supm, 
§  55  ;  Fer^'usoii  v.  Harwood,  7  Cranch,  408,  413  ;  Slieehy  v.  Mandeville,  Id.  208,  217. 

2  1  Chitty,  PI.  268.  269  (5th  Am.  ed.)  ;  Howell  v.  Richards,  11  East,  633  ;  Clarke 
V.  Gray,  6  East,  564,  570. 

3  Bba,ver  v.  Lane,  2  Mod.  217  ;  Arnold  r.  Revoult,  1  Brod.  &  Biiig.  443  ;  Wlutlock 
V.  Kamsey,  2  Muiif.  510  ;  Aiikerstein  v.  Clarke,  4  T.  R.  616.  It  is  said  that  an  alle- 
ijation  that  J.  S.,  otherwise  R.  S.,  niad^  a  deed,  is  not  supjiorted  by  evidence,  that  J. 
S.  made  a  deed  by  the  name  of  K.  S.  1  Stark.  Evid.  513,  citing  Hyckman  v.  Shotbolt, 
Dyer,  279,  pi.  9. '  The  doctrine  of  that  case  is  very  clearly  expounded  liy  Parke,  B.,  lu 
Williams  v.  Bryant,  5  M.  &  W.  447.  In  regard  to  a  discrepancy  between  the  name  of 
the  obligor  in  the  body  of  a  deed,  and  in  the  signature,  a  distinction  is  to  be  observed 
between  transactions  which  del'ive  their  efficacy  wholly  from  the  deed,  and  those  which 
do  not.  Thus,  in  a  feoffment  at  the  common  law,  or  a  sale  of  personal  property  by 
deed,  or  the  like,  livery  being  made  in  the  one  case,  and  possession  delivered  in  the 
other,  the  transfer  of  title  is  perfect,  notwithstanding  any  mistake  in  the  name  of  the 
grantor  ;  for  it  takes  effect  by  delivery,  and  not  ]>y  the  deed.  Perk.  §§  38-42.  But 
where  the  efficacy  of  the  transaction  depends  on  the  instrument  itself,  as  in  the  case  of 
a  bond  for  the  payment  of  money,  or  any  other  executory  contract  by  deed,  if  the  name 
of  the  obligor  in  the  bond  is  different  from  the  signature,  as  if  it  were  written  John  and 
signed  Wifliam,  it  is  said  to  be  void  at  law  for  uncertainty,  unless  helped  by  proper 
averments  on  the  record.  A  mistake  in  this  matter,  as  in  any  other,  in  drawing  up 
the  contract,  may  be  reformed  by  bill  in  equity.  At  law,  where  the  obligor  has  been 
sued  by  his  true  name,  signed  to  the  bond,  and  not  by  that  written  in  the  body  of  it, 
and  the  naked  fact  of  the  discrepancy,  unexplained,  is  all  which  is  i)resented  by  the 
record,  it  has  always  been  held  bad.  This  rule  was  originally  founded  in  this,  that  a 
man  cannot  have  'two  names  of  baptism  at  the  same  time  ;  for  whatever  name  was 
imposed  at  his  baptism,  whether  single  or  compounded  of  several  names,  he  being  bap- 
tized but  once,  that  and  that  alone  was  his  baptismal  name  ;  and  by  that  name  he  de- 
clared himself  bound.     So  it  was  held  in  Serchor  v.  Talbot,  3  Hen.  VI.  25,  pi.  6,  and 

■    36  ;  Field  v.  Winlow,  Cro. 
lerd,  Cro.  Jac.  640  ;  Evans 


subsequently  in  Thornton  v.  Wikes,  34  Hen.  VI.   19.  pi.  i 
Eh  897  ;  Oliver  v.  Watkins,  Cro.  Jac.  558 ;  Maby  v.  Shepli 


CHAP.    II.]  THE   SUBSTANCE   OP   THE    ISSUE,  109 

otherwise ;  for  to  have  oyer  is,  in  modern  practice,  to  be  fur- 
nished with  an  exact  and  literal  copy  of  the  deed  declared  on, 
every  word  and  part  of  which  is  thereby  made  descriptive  of  the 
deed  to  be  offered  in  evidence.  In  such  case,  if  the  plaintiff  does 
not  produce  in  evidence  a  deed  literally  corresponding  with  the 
copy,  the  defendant  may  well  say  it  is  not  the  deed  in  issue,  and 
it  will  be  rejected.^ 

y.  King,  Willes,  554  ;  Gierke  v.  Isted,  Nelson's  Lutw.  275  ;  Gould  v.  Barnes,  3  Taniit. 
504.  "  It  appears  from  these  cases  to  be  a  settled  i)oint,"  said  Parke,  B.,  in  Williams 
V.  Brj'ant,  "  that  if  a  declaration  against  a  defendant  by  one  Christian  name,  as,  for 
instance,  Joseph,  state  that  he  executed  a  bond  by  the  name  of  Thomas,  and  there  he 
no  averment  to  explain  the  difference,  such  as  that  he  was  known  by  the  latter  name  at 
the  time  of  the  execution,  suchi  a  declaration  would  be  bad  on  demurrer,  or  in  arrest  of 
judgment,  even  after  issue  joined  on  a  plea  of  non  est  factum.  And  the  reason  a])pears 
to  be,  that  in  bonds  and  deeds,  the  efficacy  of  which  depends  on  the  instrument  itself, 
and  not  on  matter  in  pais,  there  must  be  a  certain  dcsignatio  personoi  of  the  party, 
which  regularly  ought  to  be  by  the  true  first  name  or  name  of  baptism,  and  surname  ; 
of  which  the  first  is  the  most  important."  "  Bat,  on  the  other  hand,"  he  adds,  "it 
is  certain,  that  a  person  may  at  tJiis  time  sue  or  be  sued,  not  merely  by  his  true  name 
of  baptism,  but  by  any  first  name  which  he  has  ac(juired  by  usage  or  reputation."  "  If 
a  party  is  called  and  known  by  any  ])roper  name,  by  that  name  he  may  be  sued,  and 
the  misnomer  could  not  be  pleaded  in  abatement  ;  and  not  only  is  this  the  established 
practice,  but  tlie  doctrine  is  promulgated  in  very  ancient  times.  In  Bracton,  188,  b,  it 
is  said,  '  Item  si  (juis  binominis  fuerit,  sive  in  nomine  proprio  sive  in  eorjnomine,  illud 
nomen  tenendum  erit,  quo  solet  frequentius  appellari,  quia  adeo  imi)Osita  sunt,  ut 
demonstrent  voluntatem  dicentis,  et  utimur  notis  in  vocis  ministerio.'  And  if  a  party 
may  sue  or  be  sued  by  the  proper  name  by  which  he  is  known,  it  must  be  a  sufficient 
designation  of  him,  if  he  enter  into  a  bond  by  that  name.  It  by  no  means  follows, 
therefore,  that  the  decision  in  the  case  of  Gould  v.  Barnes,  and  others  before  referred 
to,  in  which  the  (juestion  arose  on  the  record,  would  have  been  the  same,  if  there  had 
been  an  averment  on  the  face  of  the  declaration  that  the  party  was  knoivn  by  the  proper 
name  in  lohich  the  bond  was  made  at  the  time  of  making  it.  We  find  no  authorities 
for  saying,  that  the  declaration  would  have  been  bad  with  such  an  averment,  even  if 
there  had  been  a  total  variance  of  the  first  names  ;  still  less,  where  a  man,  having  two 
proper  names,  or  names  of  baptism,  has  bound  himself  by  the  name  of  one.  And  on  the 
plea  of  'non  est  factum,'  where  the  difference  of  name  does  not  appear  on  the  record, 
and  there  is  evidence  of  the  party  having  been  known,  at  the  time  of  the  execution,  liy 
the  name  on  the  instrument,  there  is  no  case,  that  we  are  aware  of,  which  decides  that 
the  instrument  is  void."  The  name  written  in  the  body  of  the  instrument  is  that 
which  the  party,  by  the  act  of  execution  and  delivery,  declares  to  be  his  own,  and  b}' 
which  he  acknowledges  himself  bound.  By  this  name,  therefore,  he  should  regularly 
be  sued  ;  and  if  sued  with  an  alias  dictus  of  his  true  name,  by  which  the  instrument 
was  signed,  and  an  averment  in  the  declaration  that  at  the  time  of  executing  the  instru- 
ment he  was  known  as  well  by  the  one  name  as  the  other,  it  is  conceived  that  he  can 
take  no  advantage  of  the  discrepancy  ;  being  estopped  by  the  deed  to  deny  this  allega- 
tion. Evans  v.  King,  Willes,  555,  n.  (li)  ;  Reeves  v.  Slater,  7  B.  &  C.  486,  490  ;  Cio. 
El.  897,  n,  (a).  See  also  Regina  v.  Wooldale,  6  Q.  B.  549  ;  AVooster  v.  Lyons,  5 
Blackf.  60.  If  sued  by  the  name  written  in  the  body  of  the  deed,  without  any  explan- 
atory averment,  and  he  pleads  a  misnomer  in  abatement,  the  jilnintitf,  in  his  replica- 
tion, may  estop  him  by  the  deed.  Dyer,  279  b,  jd.  9,  n.  ;  Story's  Pleadings,  43  ; 
Willes,  555,  n.  And  if  he  should  be  sued  by  his  true  name,  and  plead  no7i  est  factum, 
wherever  this  plea,  as  is  now  the  case  in  England,  since  the  rule  of  Hilary  Term,  4  W^m. 
IV.  R.  21,  "operates  as  a  denial  of  the  deed  in  point  of  fact  only,"  all  other  defences 
against  it  being  required  to  be  specially  pleaded,  the  difficulty  occasioned  by  the  old 
decisions  may  now  be  avoided  by  proof  that  the  party,  at  the  time  of  the  execution, 
was  known  by  the  name  on  the  "face  of  the  deed.  In  those  American  States  which  have 
abolished  special  pleading,  substituting  the  general  issue  in  all  cases,  with  a  brief  state- 
ment of  the  special  matter  of  defence,  probably  the  new  course  of  practice  thus  intro- 
duced would  lead  to  a  similar  result, 

4  W^augh  V.  Bussell,   5  Taunt.   707,   709,  per  Gibbs,  C.   J,  ;  James  v.  Walruth,  8 


110  LAW   OF   EVIDENCE.  [PART    II. 

§  70.  Records.  Where  a  record  is  mentioned  in  the  pleadings, 
the  same  distinction  is  now  admitted  in  the  proof,  between  alle- 
gations of  matter  of  substance,  and  allegations  of  matter  of  de- 
scription; the  former  require  only  substantial  proof,  the  latter 
must  be  literally  proved.  Thus,  in  an  action  for  malicious  prose- 
cution, the  day  of  the  plaintiff's  acquittal  is  not  material. 
Neither  is  the  term  in  which  the  judgment  is  recovered  a  mate- 
rial allegation  in  an  action  against  the  sheriff  for  a  false  return 
on  the  writ  of  execution.  For  in  both  cases,  the  record  is  alleged 
by  way  of  inducement  only,  and  not  as  the  foundation  of  the 
action;  and  therefore  literal  proof  is  not  required. ^  So,  in  an 
indictment  for  perjury  in  a  case  in  chancery,  where  the  allega- 
tion was,  that  the  bill  was  addressed  to  Robert,  Lord  Henly,  and 
the  proof  was  of  a  bill  addressed  to  Sir  Robert  Henly,  Kt,  it 
was  held  no  variance ;  the  substance  being,  that  it  was  addressed 
to  the  person  holding  the  great  seal.^  But  where  the  record  is 
the  foundation  of  the  action,  the  term  in  which  the  judgment  was 
rendered,  and  the  number  and  names  of  the  parties,  are  descrip- 
tive, and  must  be  strictly  proved.^  (a) 

§  71.  Prescriptions.  In  regard  to  prescriptions,  it  has  been 
already  remarked  that  the  same  rules  apply  to  them  which  are 

Jolms.  410  ;  Henry  v.  Cleland,  14  Johns.  400  ;  Jansen  v.  Ostrander,  1  Cowen,  670, 
ace.  In  Henry  v.  Brown,  19  Johns.  49,  where  the  condition  of  the  bond  was  "  without 
fraud  or  o<7ier  delay,"  and  in  the  oyer  the  word  "other"  was  omitted,  the  defendant 
moved  to  set  aside  a  verdict  for  the  plaintiff,  because  the  bond  was  admitted  in  evidence 
■without  regard  to  the  variance  ;  but  the  court  refused  the  motion,  partly  on  the  ground 
that  the  variance  was  immaterial,  and  partly  that  the  oyer  was  clearly  amendable.  See 
also  Dorr  v.  Fenno,  12  Pick.  521. 

1  Purcell  V.  Macnamara,  9  East,  157  ;  Stoddart  v.  Palmer,  4  B.  &  B.  2  ;  Phillips  v. 
Shaw,  4  B.  &  A.  435  ;  5  B.  &  A.  964. 

2  Per  BuUer,  J.,  in  Eex  v.  Pippett,  1  T.  R.  240  ;  Rodman  v.  Forman,  8  Johns.  29  ; 
Brooks  V.  Bemiss,  Id.  455  ;  State  v.  C'affev,  2  Murphy,  320. 

a  Rastall  v.  Stratton,  1  H.  Bl.  49  ;  Woodford  v.  Ashley,  11  East,  508  ;  Black  v. 

Braybrook,  2  Stark.  7  ;  Baynes  v.  Forest,  2  Str.  892  ;  United  States  v.  McNeal,  1  Gall. 
387. 

[a)  And     where,   in    a  writ   of    error  material,  if  the  identity  of  the  instrument 

brought  to  reverse  the  judgment  of  ivniver,  is  evident,  and  the  purport  thereof  is  snf- 

the  judgment  was  called  a  judgment   of  ficiently  described  to  prevent  all  prejudice 

outhiwnj,  the  variance  upon  a  plea  of  nul  to  the  defendant. 
tiel   record   was   held  fatal.       Burnett   v.  Mass.  Pub.  St.  c.  214,  §  26. 

Phillips,  6  Eng.  Law  &  Eq.  467  ;  20  L.  J.  Under   this   statute   it   has  been  held 

Exch.  337.  And  though  the  variance  be  in  that,  when  one  was  indicted  for  perjury, 

regard  to  facts  and  circumstances  which  in  false  swearing  at  a  trial  before  a  trial 

need  not  have  been  stated,  it  is  still  fatal,  justice  on  a  complaint  for  larceny,  and  the 

Whitaker  v.  Bramson,  2  Paine,  C.  C.  209.  indictment  alleged  that  the  complaint  was 

In  Massachusetts,  it  is  enacted  by  statute  made  on  one  day,  and  the  record  of  the 

that   no  variance  between  any  matter  in  trial  justice  produced  in  evidence  showed 

writing  or  in  print  produced  "in  evidence  that  it  was  made  on  another,  there  is  no 

in   the   trial  of  a  criminal  case,  and  the  material   variance,   the  other   proof  suifi- 

recital  or  setting  forth  thereof  in  the  com-  ciently  identifying  the  complaint  as  the 

plaint,  indictment,  or  other  criminal  pro-  one  named  in  the  indictment, 
cess  whereon  trial  is  had,  shall  be  deemed  Com.  v.  Soper,  133  Mass.  393. 


CHAP.    II.]  THE   SUBSTANCE    OF   THE   ISSUE.  Ill 

applied  to  contracts;  a  prescription  being  founded  on  a  grant 
supposed  to  be  lost  by  lapse  of  time.  ^  (a)  If,  therefore,  a  pre- 
scriptive right  be  set  forth  as  the  foundation  of  the  action,  or 
be  pleaded  in  bar  and  put  in  issue,  it  must  be  proved  to  the  full 
extent  to  which  it  is  claimed;  for  every  fact  alleged  is  descrijj- 
tive  of  the  supposed  grant.  Thus,  if  in  trespass,  for  breaking 
and  entering  a  several  fishery,  the  plaintiff,  in  his  replication, 
'prescribes  for  a  sole  and  exclusive  right  of  fishing  in  four  places, 
upon  which  issue  is  taken,  and  the  proof  be  of  such  right  in  only 
three  of  the  places,  it  is  a  fatal  variance.  Or,  if  in  trespass  the 
defendant  justify  under  a  prescriptive  right  of  common  on  five 
hundred  acres,  and  the  proof  be  that  his  ancestor  had  released 
five  of  them,  it  is  fatal.  Or  if,  in  replevin  of  cattle,  the  defend- 
ant avow  the  taking  damage  feasant,  and  the  plaintiff  plead  in 
bar  a  prescriptive  right  of  common  for  all  the  cattle,  on  which 
issue  is  taken,  and  the  proof  be  of  such  right  for  only  a  part  of 
the  cattle,  it  is  fatal.  ^ 

§  72.  Prescriptions.  But  a  distinction  is  to  be  observed  between 
cases  where  the  prescription  is  the  foundation  of  the  claim,  and 
is  put  in  issue,  and  cases  where  the  action  is  founded  in  tort, 
for  a  disturbance  of  the  plaintiff  in  his  enjoyment  of  a  prescrip- 
tive right.  For  in  the  latter  cases  it  is  sufficient  for  the  plaintiff 
to  prove  a  right  of  the  same  nature  with  that  alleged,  though  not 
to  the  same  extent;  the  gist  of  the  action  being  the  wrongful  act 
of  the  defendant,  in  disturbing  the  plaintiff  in  his  right,  and  not 
the  extent  of  that  right.  Therefore,  where  the  action  was  for  the 
disturbance  of  the  plaintiff  in  his  right  of  common,  by  opening 
stone  quarries  there,  the  allegation  being  of  common,  by  reason 
both  of  a  messuage  and  of  land,  whereof  the  plaintiff  was  pos- 
sessed, and  the  proof,  in  a  trial  upon  a  general  issue,  being  of 
common  by  reason  of  the  land  only,  it  was  held  no  variance ;  the 
court  observing,  that  the  proof  was  not  of  a  different  allegation, 
but  of  the  same  allegation  in  part,  which  was  sufficient,  and  that 
the  damages  might  be  given  accordingly.^  Yet  in  the  former 
class  of  cases,  where  the  prescription  is  expressly  in  issue,  proof 
of  a  more  ample  right  than  is  claimed  will  not  be  a  variance;  as, 
if  the  allegation  be  of  a  right  of  common  for  sheep,  and  the  proof 
be  of  such  right,  and  also  of  common  for  cows.'^^ 

1  Supra,  §  58. 

2  Rogers  !'.  Allen,  2  Campb.  313,  315  ;  Rotherham  v.  Green,  Noy,  67  ;  Con)'ers  v. 
Jackson,  Clayt.  19  ;  Bull.  N.  P.  539. 

1  Rickets  v.  Sahvey,  2  B.  &  A.  360  ;  Eardley  v.  Turnock,  Cro.  Jac.  629  ;  Manifold 
V.  Pennington,  4  B.  &  C.  161. 

2  Bushwood  V.  Pond,  Cro.  El.  722  ;  Tewke-sbury  v.  Bricknell,  1  Taunt.  142  ;  supra, 
§§  58,  67,  68. 

[a)  See  also  2^ost,  vol.  ii.  §§  537-546,  tit.  Prescription. 


112  LAW    OP   EVIDENCE.  [PART    IT. 

§  73.  Amendments  to  remedy  variance.  But  the  party  may 
now,  in  almost  every  case,  avoid  the  consequences  of  a  variance 
between  the  allegation  in  the  pleadings  and  the  state  of  facts 
proved,  hy  amendmeyit  of  the  record.  This  power  was  given  to 
the  courts  in  England  by  Lord  Tenterden's  Act  ^  in  regard  to 
variances  between  matters  in  writing  or  in  print,  produced  in 
evidence,  and  the  recital  thereof  upon  the  record :  and  it  was 
afterwards  extended  ^  to  all  other  matters,  in  the  judgment  of  the 
court  or  judge  not  material  to  the  merits  of  the  case,  upon  such 
terms  as  to  costs  and  postponement  as  the  court  or  judge  may 
deem  reasonable.  The  same  power,  so  essential  to  the  admin- 
istration of  sul)stantial  justice,  has  been  given  by  statutes  to  the 
courts  of  most  of  the  several  States,  as  well  as  of  the  United 
States;  and  in  both  England  and  America  these  statutes  have, 
with  great  propriety,  been  liberally  expounded,  in  furtherance  of 
their  beneficial  design.3(a)  The  judge's  discretion,  in  allowing 
or  refusing  amendments,  like  the  exercise  of  judicial  discretion 
in  other  cases,  cannot,  in  general,  lie  reviewed  by  any  other 
tribunal.*  It  is  only  in  the  cases  and  in  the  manner  mentioned 
in  the  statutes,  that  the  propriety  of  its  exercise  can  be  called  in 
question. 

1  9  Geo.  lY.  c.  15. 

2  Bv  Stat.  3  &  4  Wm.  IV.  c.  42,  §  23. 

3  See  Hanbury  v.  Ella,  1  Ad.  &  El.  til  ;  Parry  v.  Fairhitrst,  2  Cr.  M.  &  R.  190,  196; 
Doe  V.  Edwards, 'l  M.  &  Rob.  319  ;  s.  c.  6  C.  &  P.  208  ;  Hemming  v.  Parrv,  6  C.  & 
P.  580;  Mash  v.  Densham,  1  M.  &  Rob.  442;  Ivey  v.  Youug,  Id.  545;  Howell  v.' 
Tliomas,  7  C.  &  P.  342  ;  Mayor,  &c.  of  Carmarthen  v.  Lewis,  6  C.  &  P.  608  ;  Hill  v. 
Salt,  2  C.  &  M.  420  J  Cox  v.  Painter,  1  Nev.  &  P.  581  ;  Doe  v.  Long,  9  C.  &  P.  777  ; 
Ernest  v.  Brown,  2  M.  &  Rob.  13  ;  Storr  v.  Watson,  2  Scott,  842  ;  Smith  v.  Brandrara, 
9  Dowl.  430  ;  "Whitwell  v.  Scheer,  8  Ad.  &  El.  301  ;  Read  v.  Dunsmore,  9  C.  &  P. 
588  ;  Smith  v.  Knowelden,  8  Dowl.  40  ;  Norcutt  v.  Mottram,  7  Scott,  176  ;  Legge 
V.  Boyd,  5  Bing.  N.  C.  240.  Amendments  were  refused  in  Doe  v.  Errington,  1  Ad.  & 
El.  750  ;  Cooper  v.  Whitehouse,  6  C.  «&,  P.  545  ;  John  v.  Currie,  Id.  618  ;  Watkins  v. 
Morgan,  Id.  661  ;  Adams  v.  Power,  7  C.  &  P.  76  ;  Brashier  i-.  Jackson,  6  M.  &  W. 
549  ;  Doe  v.  Rowe,  8  Dowl.  444;  Emp.son  v.  Griffin,  3  P.  &  D.  160,  The  following 
are  cases  of  variance,  arising  under  Lord  Tenterden's  Act.  Bentzing  v.  Scott,  4  C.  cV 
P.  24  ;  Moilliet  v.  Powell,  6  C.  &  P.  233  ;  Lamey  v.  Bishop,  4  B.  &  Ad.  479  ;  Briant 
V.  Eicke,  Mood.  &  .Malk.  359;  Parks  v.  Edge,  1  "C.  &  M.  429  ;  Ma.sterman  v.  Judson, 
8  Bing.  224  ;  Brooks  v.  Blanshard,  1  C.  &  M.  779  ;  Jelf  v.  Oriel,  4  C.  &  R  22._  The 
American  cases,  which  are  veiy  numerous,  are  stated  in  1  Metcalf  &  Perkins's  Digests, 
p.  145-162,  and  in  Putnam's  Supplement,  vol.  ii.  p.  727-730. 

4  Doe  V.  Errington,  1  M.  &  Rob.  344,  n.  ;  Mellish  v.  Richardson,  9  Bing.  125  ; 
Parks  V.  Edge,  1  C.  &  :\I.  429  ;  Jenkins  v.  Phillips,  9  C.  &  P.  766  ;  Merriam  v.  Lang- 
don,  10  Conn.  460,  473  ;  Cla])p  v.  Balch,  3  Greenl.  216,  219  ;  Mandeville  v.  Wilson, 
5  Cranch,  15  ;  Marine  Ins.  Co.  v.  Hodgson,  6  Cranch,  206  ;  Walden  v.  Craig,  9 
AVheat.  576  ;  Chiracs.  Reinicker,  11  Wheat.  302  ;  United  States  v.  Buford,  3  Peters, 
12,  32  ;  Benner  v.  Frey,  1  Binn.  366  ;  Bailey  v.  Musgrave,  2  S.  &  R.  219  ;  Bright  v. 
Sugg,  4  Dever.  492.  But  if  the  judge  exercises  his  discretion  in  a  manner  clearly  and 
manifestly  wrong,  it  is  said  that  the  court  will  interfere  and  set  it  right.  Hackman  v. 
Fernie.  3M.  &  W.  505  ;  Geach  v.  Ingall,  9  Jur.  691  ;  14  M.  &  W,  95. 

(a)  See  also;Josi,  vol.  ii.  §  11  a-11  c. 


CHAP.    III.] 


THE   BURDEN   OF    PROOF. 


113 


CHAPTER   m. 


OP   THE   BURDEN    OF    PROOF. 


§  74.  Upon  which  party  It  lies.  A  third  rule  which  governs  in 
the  production  of  evidence  is,  that  the  obligation  of  proving  any 
fact  lies  upon  the  party  ivho  substantially  asserts  the  affirmative  of 
the  issue,  (a)     This  is  a  rule  of  convenience,  adopted  not  because 

derance  of  evidence.  It  iiiaj'^  be  sufficient 
for  hiin  to  produce  just  enough  evidence 
to  counterbalance  the  evidence  adduced 
against  iuni.  This  is  illustrated  by  a  very 
common  case.  Suppose  that  upon  an  issue 
as  to  the  performance  of  a  contract  sued 
upon,  the  plaintiff  should  testify  to  facts 
showing  non-performance.  In  such  case  if 
the  defendant  produced  no  evidence,  the 
plaintiff  must  prevail.  This  is  often  ex- 
pressed l)y  saying  that  the  burden  has 
shifted  to  the  defendant.  And  so  it  has 
in  one  sense.  But  suppose  the  defendant 
should  take  the  stand  and  deny  the  truth 
of  the  facts  testified  to  by  the  plaintiff, 
oath  being  ojiposed  against  oath,  would 
it  be  correct  to  say  that  the  defendant 
must  have  a  preponderance  of  evidence  ? 
It  most  certainly  would  not  ;  and  this 
though  the  burden  of  proof  had  been 
transferred  to  him.  Nor  would  it  be  cor- 
rect to  say  that  the  burden  had  'shifted 
back'  to  the  plaintiff  if  the  burden  of 
producing  the  preponderance  of  evidence 
was  meant.  For  that  never  was  on  the 
defendant.  The  two  burdens  are  distinct 
things.  One  may  shift  back  and  forth  with 
the  ebb  and  flow  of  the  re:-timony.  The 
other  remains  upon  the  party  upon  whom 
it  is  cast  by  the  pleadings,  that  is  to  say, 
with  the  party  who  has  the  affirmative  of 
the  issue."  Scott  v.  Wood,  81  Cal.  400. 
And  to  the  same  effect  are  Burnhani  v. 
Allen,  1  Gray  (Mass.),  500:  Blanchard  v. 
Young,  11  Cush.  (Mass.)  345  ;  Spaulding 
V.  Hood,  8  Id.  605  ;  Eaton  v.  Alger,  47 
N.  Y.  351  ;  Caldwell  v.  New  Jersey  Steam 
Navigation  Co.,  lb.  290  ;  Kitner  v.  Whit- 
lock,  88  111.  513.  And  an  instance  of  this 
distinction  between  the  burden  of  proof 
and  the  weight  of  evidence  is  found  in 
Willett  V.  Rich,  142  Mass.  356,  where  the 
Court  ovenuh'd  the  case  of  Cass  v.  Boston 
&  Lowell  R.  R.  Co.,  14  Allen,  448.  These 
cases  furnish  a  good  example  of  the  dis- 


(a)  Stevenson  v.  Marony,  29  111.  532  ; 
McClure  v.  Pursell,  6  Ind.  330.  The 
burden  of  proof  is  therefore  fixed  at  the 
beginning  of  the  trial  by  the  nature  of 
the  allegations  in  the  pleadings,  and  it  is 
settled  as  a  (piestion  of  law  and  does  not 
change  during  the  course  of  the  trial 
Pickup  V.  Thames  Ins.  Co.,  L.  R.  3  Q 
B.  Div.  594  ;  Willett  v.  Rich,  142  Mass 
356  ;  Nichols  v.  Munsell,  115  Mass.  567 
Simpson  v.  Davis,  119  Id.  269  ;  Crownin 
shifld  V.  Crowninshield,  2  Grav  (Mass.), 
524  ;  Heinemann  v.  Heard,  62  N.  Y.  448. 

In  civil  cases  when  the  plaintiff  has  in- 
troduced sufficient  evidence  to  make  out 
a  prima  facie  case,  he  may  rest  on  this 
proof,  and  it  becomes  the  duty  of  the  de- 
fendant to  introduce  evidence  to  rebut 
the  case  made  by  the  plaintiff.  This 
burden,  which  thus  is  shifted,  has  been 
called  the  weight  of  evidence.  Tims,  in 
Central  Bridge  Corporation  v.  Butler,  2 
Gray  (Mass.),  132,  the  Court  says  :  "  The 
burden  of  proof  and  the  weight  of  evi- 
dence are  two  very  different  things.  The 
former  remains  on  the  party  affirming  a 
fact  in  support  of  his  case,  and  does  not 
cliange  in  any  aspect  of  the  cause  ;  the 
latter  shifts  from  side  to  side  in  the  pro- 
gress of  a  trial,  according  to  the  nature 
and  strength  of  the  proof's  offered  in  sup- 
port or  denial  of  the  main  fact  to  be 
established."  And  in  a  more  recent 
case,  in  California,  the  Court  says,  "the 
term  '  burden  of  proof  is  used  under 
different  senses.  Sometimes  it  is  used  to 
signify  the  burden  of  making  or  meeting 
thepr  moi,  fack  case,  and  sometimes  the 
burden  of  producing  the  preponderance  of 
evidence.  These  burdens  are  often  on  the 
same  party.  But  this  is  not  necessarily 
always  the  case,  and  it  is  by  no  means 
safe  to  infer  that  because  the  party  has 
the  burden  of  meeting  the  2^ri'na  facie 
case,  therefore  he  must  have  the  prepon- 

VOL.  I.  —  8 


114 


LAW    OP   EVIDENCE. 


[part    II. 


it  is  impossible  to  prove  a  negative,  but  because  the  negative  does 
not  admit  of  the  direct  and  simple  proof  of  which  the  afhrmative 


tinctiou  between  the  burden  of  proof  and 
the  burden  of  evidence.     In  the  later  case 
the  action  being  against  a  warehouse-man 
for  negligence,  it  was  held  that  after  the 
plaintitl"  has  proved  delivery  of  the  goods 
to  the  warehouse-men,  and  a  failure  to  re-de- 
liver the  goods  on  demand  or  a  delivery  in 
an  injured  condition,  he  has  established  a 
prima  facie  case,  and  the  burden  of  meet- 
ing this  shifts  on  the  defendant.     If,  how- 
ever, the  defendant  introduce  evidence  that 
the  goods  were  destroyed  or  injured  with- 
out his  negligence,  and  that  he  used  .due 
care  in  protecting  them,  the  burden  shifts 
again  on  the  plaintiff  to  show  that  the  de- 
fendant did  not  use  due  care.     If  he  puts 
in  evidence  to  this  effect,  then  when  the 
evidence  is  all  in,  the  question  as  to  the 
burden  of  proof  arises  again,  and  the  pre- 
ponderance of  evidence  must  be  in  favor 
of  the  plaintiff,  on  the  issues  of  the  case, 
in  order  to  justify  a  verdict  in  his  favor. 
Willett  V.  iiiuh,  supra.     So,  in  the  case 
of  an  action  on  a  promissory  note,  the  bur- 
den of  proof  is  on  the  party  suing,  but  he 
meets  this  burden  by  producing  the  note 
and  proving  the  signature,  if  that  is  ne- 
cessary,  because   there  is  a   presumption 
that  in  case  of  a  promissory  note,  there 
was  a  consideration;  but  if  the  evidence 
of  the   defendant   shows   a  want  of  con- 
sideration, then   the  burden  of  proof  on 
the  whole   case  is  upon  the  plaintiff   in 
the   matter   of    consideration   as   well   as 
upon  the  other  points,  and  if  there  is  not 
a  preponderance  in  his  favor,  he  must  fail. 
Parley  v.  Perley,   144  Mass.  104  ;  Burn- 
ham  'v.   Allen,  1   Graj',  496  ;  Simpson  v. 
Davis,  119  Mass.  269;  Delano  v.  Bartlett, 
6  Cush.  364.     On  the  question  of  the  de- 
fence of  payment,  or  failure  of  considera- 
tion,  the  burden  of  proof  is  on  the  de- 
fendant.  Perlev  v.  Perlej-,  su-irra  ;  Jennison 
V.  Stafford,  1  Cush.  168  ;  Delano  v.  Bart- 
lett, 6  Cush.  364.     The  burden  of  proof 
of  either  party,  however,  extends  only  to 
the  allegations  upon  which  he  bases  his 
case.     Thus  if  the   defendant   jdeads   in 
confession   and  avoidance,  his  burden  in- 
cludes   none    of    the    allegations   of   the 
plaintiff.    Powers  v.  Silberstein,  108  N.  Y. 
171.      Thus,    in   Wilder   v.    Cowles,    100 
Mass.  487,  it  is  said  that  the  burden  upon 
the  plaintiff  is  coextensive  only  with  the 
legal   proposition    upon    which    his   case 
rests.     It  applies  to  every  fact  which  is 
essential  or   necessarily  involved  in  that 
proposition.     It   does   not  apply  to  facts 
relied  on  in  defence  to  establish  an  inde- 
pendent proposition,  however  inconsistent 


it  may  be  with  that  ujion  which  the 
plaintiffs  case  depends.  It  is  for  the  de- 
fendant to  furnish  proof  of  such  facts  ; 
and  when  he  has  done  so,  the  burden  is 
upon  the  plaintiff,  not  to  disprove  these 
paiticular  facts,  nor  the  proposition  which 
they  tend  to  establish,  but  to  maintain 
the  proposition  upon  which  his  own  case 
rests,  notwithstanding  such  controlling 
testimony  and  upon  the  whole  evidence 
in  the  case.  And  see  post,  §§  80  n., 
81  a,  81  b,  81  c.  But  there  are  cases 
wdiere  allegations  affirmative  in  form  are 
really  only  indirect  negatives  of  plain- 
titl's  allegations,  and  in  such  cases  the 
burden  of  proof  is  on  the  party  holding 
the  real  affirmative.  Thus,  where  one 
sued  on  a  common  count  on  an  account 
annexed,  and  the  defendant  justified  on 
the  ground  of  an  existing  special  contract, 
the  Court  held  that  the  burden  of  proof 
was  on  the  plaintiff  throughout,  and  that 
if  the  evidence  as  to  the  existence  of  the 
special  contract  was  evenly  balanced,  the 
plaintiff  could  not  recover,  and  also,  that 
the  burden  of  proof  being  on  the  iilaintitf 
at  the  outset  of  the  trial  be  made  a  prima 
facie  case  by  the  introduction  of  evidence 
showing  that  he  performed  certain  work 
for  the  defendants  or  its  value,  and  that 
when  this  proof  was  in,  the  burden  of 
evidence  shifted  upon  the  defendants ; 
that  the  defendants  met  this  burden,  by 
evidence  of  the  special  contract,  and  the 
question  then  was  whether  the  whole  evi- 
dence ])reponderated  in  favor  of  the  plain- 
till'.  Phipps  V.  Mahon,  141  Mass.  471. 
When  the  plaintiff  and  defendant  have 
both  put  in  evidence,  the  burden  of  jjrov- 
ing  his  whole  case  by  a  preponderance  of 
evidence  in  civil  cases  is  on  the  party  who 
had  the  burden  of  proof  in  the  beginning 
of  the  trial.  Powers  v.  Piussell,  13  Pick. 
(Mass.)  76. 

In  criminal  cases,  the  weight  of  evi- 
dence or  burden  of  proof  never  shifts  upon 
the  defendant,  but  is  u])on  the  govern- 
ment throughout.  If  the  government, 
after  making  a  prima  facie  case,  rests, 
and  the  defendant  does  not  put  in  any 
evidence,  it  is  still  necessary  that  the  jury 
should  be  convinced  beyond  a  leasonable 
doubt  by  the  proof  given  by  the  govern- 
ment. It  would  naturally  happen  in 
•  most  cases,  that  a  prima  facie  case,  unre- 
butted,  would  thus  satisfy  the  jury,  but 
the  question  ought  to  be  left  to  them,  and 
not  settled  by  the  judge,  and  in  all  cases, 
before  a  conviction  can  be  had,  the  jury 
must  be  satisfied,  upon  all  the  evidence,  be- 


CHAP.    III.]  THE    BURDEN   OF   PROOF.  115 

is  capable.^  (h)  It  is,  therefore,  generally  deemed  sufficient,  where 
the  allegation  is  affirmative,  to  oppose  it  with  a  bare  denial,  until 
it  is  established  by  evidence.  yuch  is  the  rule  of  the"  Roman 
law.  "Ei  incumbit  probatio  qui  dicit,  non  qui  ncgat.  "^  As  a 
consequence  of  this  rule,  the  party  who  asserts  the  affirmative  of 
the  issue  is  entitled  to  begin  and  to  reply;  and  having  begun,  he 
is  not  permitted  to  go  into  half  of  his  case,  and  reserve  the  re- 
mainder; but  is  generally  obliged  to  develop  the  whole. ^  Regard 
is  had,  in  this  matter,  to  the  substance  and  effect  of  the  issue, 
rather  than  to  the  form  of  it ;  for  in  many  cases  the  party,  by 
making  a  slight  change  in  his  pleading,  may  give  the  issue  a 
negative  or  an  affirmative  form,  at  his  pleasure.  Therefore  in 
an  action  of  covenant  for  not  repairing,  where  the  breach  as- 
signed was  that  the  defendant  did  not  repair,  but  suffered  the 
premises  to  be  ruinous,  and  the  defendant  pleaded  that  he  did 
repair,  and  did  not  suffer  the  premises  to  be  ruinous,  it  was 
held  that  on  this  issue  the  plaintiff  should  begin. ^  If  the  record 
contains  several  issues,  and  the  plaintiff  hold  the  affirmative  in 
any  one  of  them,  he  is  entitled  to  begin ;  as,  if  in  an  action  of 
slander  for  charging  the  plaintiff  with  a  crime,  the  defendant 
should  plead  not  guilty,  and  a  justification.  For  wherever  the 
plaintiff  is  obliged  to  produce  any  proof  in  order  to  establish  his 

1  Dranguet  v.  Pnulhomme,  3  La.  83,  8G  ;  Costigan  v.  Mohawk  &  Hudson  Pi.  Pi.  Co., 
3  Denio,  609. 

2  Dig.  lib.  22,  tit.  3,  1.  2  ;  Mascard.  de  Prob.  Coucl.  70,  tot.  ;  Cunel.  1123,  ii.  10. 
See  also  Tait  on  Evid.  p.  1. 

3  Rees  V.  Smith,  2  Stark.  31  ;  3  Chitty,  Gen.  Pract.  872-877  ;  Swift's  Law  of  F.vid. 
p.  152 ;  Bull.  N.  P.  298  ;  Browne  v.  Murray,  Ky.  &  M.  254  ;  Jones  v.  Kennedy,  11 
Pick.  125,  132.  The  true  test  to  determine  which  party  has  the  right  to  begin,  and 
of  course  to  determine  where  is  the  burden  of  proof,  is  to  consider  which  party  would 
be  entitled  to  the  verdict,  if  no  evidence  were  oti'ered  on  either  side  ;  for  the  burden  of 
proof  lies  on  the  party  against  whom,  in  such  case,  the  verdict  ought  to  be  given,  (c) 
Leete  v.  Gresham  Life  Ins.  Co.,  7  Eng.  Law  &  Eq.  578;  15  Jur.  1161.  And  see 
Huckman  v.  Fernie,  3  M.  &  W.  510. 

*  Soward  V.  Leggatt,  7  C.  &  P.  613. 

yond  a  reasonable  doubt,  of  the  affirmative  (c)  Veiths  v.  Hagge,  8  Clarke  (Iowa), 
of  the  issue  presented  by  the  government;  163;  Kent  i?.  White,  27  Ind.  390.  Mr. 
to  wit,  that  the  defendant  is  guilty  in  Taylor  suggests  anotlier  test,  i.  c.  to  ex- 
manner  and  form  as  charged  in  the  in-  amine  what  would  be  tlie  effect  of  strik- 
dictment.  State  v.  Wingo,  66  Mo.  181  ;  ing  out  of  the  recoid  the  allegations 
Black  V.  Stat-e,  1  Tex.  Ai)]).  368  ;  State  to  be  proved,  for  the  burden  of  proof 
V.  Patterson,  45  Vt.  308.  The  opinion  of  rests  upon  the  party  whose  case  would  bo 
the  court,  by  Bigelow,  J.  in  the  case  of  thereby  destroyed.  1  Taylor,  Ev.  §  338  ; 
Commonwealth  v.  McKie,  1  Gray,  61-65,  citing  Amos  v.  Hughes,  1  M.  &  Rob. 
contains  an  acceptaljle  and  very  able  ex-  -464,  ]ier  Alderson,  B.  ;  Doe  v.  Rowlands, 
jiosition  of  the  genei'al  rule  of' law  as  to  9  C.  &  P.  735,  and  Osborn  v.  Thompson, 
the  burden  of  proof  in  criminal  cases.  2  JI.  &  Rob.  256,  as  to  the  first,  and 
(/>)  Com.  V.  Tuey,  8  Cush.  (Mass.)  1;  Mills  v.  Barber,  1  M.  &  W.  427,  as  to 
Buniham  v.  Allen,  1  Gray  (Mass.),  496  ;  the  second. 
Crowuinshield  v.  Crowninshield,  2  Id.  524. 


116  LAW   OF   EVIDENCE.  [PART   II. 

right  to  recover,  he  is  generally  required  to  go  into  his  whole 
case,  according  to  the  rule  above  stated,  and  therefore  is  entitled 
to  reply.  How  far  he  shall  proceed  in  his  proof,  in  anticipation 
of  the  defence  on  that  or  the  other  issues,  is  regulated  l3y  the 
discretion  of  the  judge,  according  to  the  circumstances  of  the  case ; 
regard  being  generally  had  to  the  question,  whether  the  whole 
defence  is  indicated  by  the  plea,  with  sufficient  particularity  to 
render  the  plaintiff's  evidence  intelligible.^  (c?) 

§  75.  Damages.  Whether  the  necessity  of  proving  damages, 
on  the  part  of  the  plaintiff,  is  such  an  affirmative  as  entitles  him 
to  begin  and  reply,  is  not  perfectly  clear  by  the  authorities. 
Where  such  evidence  forms  part  of  the  proof  necessary  to  sustain 
the  action,  it  may  well  be  supposed  to  fall  within  the  general 
rule;  as,  in  an  action  of  slander,  for  words  actionable  only  in 
respect  of  the  special  damage  thereby  occasioned ;  or,  in  an  action 
on  the  case,  by  a  master  for  the  beating  of  his  servant  per  quod 
servitium  amisit.  It  would  seem,  however,  that  where  it  appears 
by  the  record,  or  by  the  admission  of  counsel,  that  the  damages 
to  be  recovered  are  only  nominal,  or  are  mere  matter  of  computa- 
tion, and  there  is  no  dispute  about  them,  the  formal  proof  of  them 
will  not  take  away  the  defendant's  right  to  begin  and  reply, 
whatever  be  the  form  of  the  pleadings,  provided  the  residue  of 
the  case  is  affirmatively  justified  by  the  defendant.^  And  if  the 
general  issue  alone  is  pleaded,  and  the  defendant  will  at  the 
trial  admit  the  whole  of  the  plaintiff's  case,  he  may  still  have 
the  advantage  of  the  beginning  and'reply.^     So  also  in  trespass 

5  Rees  V.  Smith,  2  Stark.  31  ;  Jackson  v.  Hesketh,  Id.  518  ;  James  v.  Salter,  1  M. 
&  Rob.  501  ;  Rawlins  v.  Desborough,  2  M.  &  Hob.  328  ;  Comstock  v.  Hadlyme,  8 
Conn.  261  ;  Curtis  v.  Wheeler,  4  C.  &  P.  196  ;  s.  c.  1  M.  &  U.  493  ;  Williams  v. 
Tliomas,  4  C.  &  P.  234  ;  7  Pick.  100,  per  Parker,  C.  J.  In  Browne  v.  Murray,  Ily.  & 
IM.  254,  Lord  C.  J.  Abbott  gave  the  plaintiff  his  election,  after  proving  the  general 
issue,  either  to  proceed  immediately  with  all  his  proof  to  rebut  the  anticipated  defence, 
or  to  reserve  such  proof  till  the  defendant  had  closed  his  own  evidence  ;  only  refusing 
him  the  privilege  of  dividing  his  case  into  halves,  giving  part  in  the  first  instance,  and 
the  residue  after  the  defendant's  case  was  proved. 

1  Fowler  v.  Coster,  1  Moo.  &  M.  243,  per  Lord  Tenterden.  And  see  the  reporter's 
note  on  that  case,  in  1  Moo.  &  M.  278-281.  The  dictum  of  the  learned  judge,  in 
Brooks  •;;.  Barrett,  7  Pick.  100,  is  not  supposed  to  militate  with  this  rule  ;  but  is  con- 
ceived to  apply  to  cases  wliere  proof  of  the  note  is  required  of  the  plaintiff.  Sanford  v. 
Hunt,  1  C.  &  P.  118  ;  Goodtitle  v.  Braham,  4  T.  R.  497. 

2  Tucker  v.  Tucker,  1  Moo.  &  M.  536  ;  Fowler  v.  Coster,  Id.  241  ;  Doe  v.  Barnes, 
1  M.  &  Rob.  386  ;  Doe  v.  Smart,  Id.  476  ;  Fish  v.  Travers,  3  C.  &  P.  578  ;  Comstock 
'•.  Hadlyme,  8  Conn.  261  ;  Lacon  v.  Higgins,  3  Stark.  178  ;  Corbett  v.  Corbett, 
3  Campb.  368  ;  Iloman  v.  Thompson,  6  C.  &  P.  717  ;  Smart  v.  Rayner,  Id.  721  ; 
Mills  V.  Oddy,  Id.  728  ;  Scott  v.  Hull,  8  Conn.  296.     But  see  infra,  §  76,  n.  4. 

(d)  York  V.  Pease,  2  Gray  (Mass.),  Evidence  in  rebuttal  is  not  inadmissible 
282;  Holbrook  v.  McBride,  4  Id.  218;  because  it  corroborates  the  evidence  in 
Cushing  V.  Billings,  2  Gush.  (Mass.)  158.     chief.     Wright  v.  Foster,  109  ilass.  57. 


CHAP.    III.]  THE    BURDEN    OF    PROOF.  117 

quare  clausum  f regit,  where  the  defendant  pleads  not  guilty  as  to 
the  force  and  arms  and  whatever  is  against  the  peace,  and  justi 
fies  as  to  the  residue,  and  the  damages  are  laid  only  in  the  usual 
formula  of  treading  down  the  grass,  and  subverting  the  soil,  the 
defendant  is  permitted  to  begin  and  reply ;  there  being  no  neces- 
sity for  any  proof  on  the  part  of  the  plaintiff.^  (a) 

§  76.  Unliquidated  damages.  The  difficulty  in  determining 
this  point  exists  chiefly  in  those  cases,  where  the  action  is  for 
unliquidated  damages,  and  the  defendant  has  met  the  whole  case 
with  an  affirmative  plea.  In  these  actions  the  practice  has  been 
various  in  England ;  but  it  has  at  length  been  settled  by  a  rule, 
by  the  fifteen  judges,  that  the  plaintiff  shall  begin  in  all  actions 
for  personal  injuries,  libel,  and  slander,  though  the  general  issue 
may  not  be  pleaded,  and  the  affirmative  be  on  the  defendant,  i 
In  actions  upon  contract,  it  was,  until  recently,  an  open  question 
of  practice ;  having  been  sometimes  treated  as  a  matter  of  right 
in  the  party,  and  at  other  times  regarded  as  resting  in  the  dis- 
cretion of  the  judge,  under  all  the  circumstances  of  the  case.^ 
But  it  is  now  settled,  in  accordance  with  the  rule  adopted  in 
other  actions. 3  In  this  country  it  is  generally  deemed  a  matter 
of  discretion,  to  be  ordered  by  the  judge  at  the  trial,  as  he  may 
think  most  conducive  to  the  administration  of  justice ;  but  the 

4  Hodges  V.  Holder,  3  Campb.  366  ;  Jackson  v.  Hesketh,  2  Staik.  518  ;  Pearson  v. 
Coles,  1  M.  &  Rob.  206  ;  Davis  v.  Mason,  4  Pick.  156  ;  Leech  v.  Armitage,  2 
Dall.  125. 

1  Carter  v.  Jones,  6  C.  &  P.  61. 

2  Bedell  v.  Russell,  Ry.  &  M.  293  ;  Fowler  v.  Coster,  1  M.  &  M.  241  ;  Revett  v. 
Braham,  4  T.  R.  497  ;  Haie  v.  Munn,  1  M.  &,  M.  241,  n. ;  Scott  v.  Hull,  8  Conn.  296; 
Burrell  v.  Nicholson,  6  C.  &  P.  202  ;  1  Moo.  &  R.  304,  306;  Hoggett  v.  Exley,  9  C. 
&  P.  324.     See  also  3  Chitty,  Gen.  Practice,  872-877. 

3  Mercer  v.  Whall,  9  Jur.  576 ;  5  Q.  B.  447. 

(a)  Where  a  defendant  under  a  rule  of  Hurley  u.  O'Sullivan,  137  Mass.  86;  Dorr  u. 
court  filed  an  admission  of  the  plaintiff's  Treniont  Nat.  Bank,  128  Mass.  358  ;  Page 
prima  facie  case,  in  order  to  obtain  the  v.  Osgood,  2  Gray,  260.  In  probate  trials, 
right  to  open  and  close,  he  was  held  not  to  the  executor  pro^jounding  the  will  begins 
be  thereby  esto])ped  from  setting  u])  in  and  closes  without  regard  to  the  burden 
.defence  the  statute  of  limitations  (Emmons  of  proof.  Dorr  v.  Tremont  Bank,  supra; 
V.  Hayward,  11  Cush.  Mass.  48)  ;  nor  from  Crowninshield  v.  Crowninsliield,  2  Gray, 
showing  that  the  plaintiff  had  no  title  to  524.  In  equity,  the  same  rule  that  the 
the  note  sued  on.  Spaulding  v.  Hood,  8  plaintiff  is  in  all  cases  entitled  to  open 
Id.  602.  An  auditor's  report  in  favor  of  and  close  prevails.  Dorr  y.  Tremont  Bank, 
the  plaintiff  will  not  give  the  defendant  the  supra.  In  cases  of  land  damages,  the 
right  to  open  and  close.  Snow  v.  Hatch-  owner  of  the  land  lias  the  right  to  begin 
elder.  Id.  513.  Cf.  Washington  Ice  Co.  v.  and  reply,  even  though  the  proceeding's 
Webster,  68  Me.  449.  The  rule,  how-  are  formally  begun  by  the  other  party, 
ever,  in  Massachusetts,  is  to  allow  the  Parks  i;.  Boston,  15  Pick.  198,  208;  Conn, 
plaintiff  to  open  and  close  in  every  case.  River  R.  R.  v.  Clajip,  1  Cush.  559  ;  Win- 
even  when  the  defendant  admits  the  nisimmett  Co.  v.  Grueby,  111  Mass.  543  ; 
plaintiff  s  cause  of  action  and  fdes  a  dec-  Burt?'.  Wigglesworth,  117  Mass.  302; 
laration  in  set-off,  or  matter  in  avoidance.  Dorr  v.  Tremont  Bank,  supra. 


118  LAW   OF   EVIDENCE.  [PART   II. 

weight  of  authority,  as  well  as  the  analogies  of  the  law,  seem  to 
be  in  favor  of  giving  the  opening  and  closing  of  the  cause  to  the 
plaintiff,  wherever  the  damages  are  in  dispute,  unliquidated,  and 
to  be  settled  by  the  jury  upon  such  evidence  as  may  be  adduced, 
and  not  by  computation  alone.*  (a) 

§  77,   In  proceedings  not  at  common  law.     "Where  the  proceed- 
ings are  not  according  to  the  course  of  the  common  law,  and 

*  Such  was  the  course  in  Young  v.  Bairner,  1  Esp.  103,  which  was  assumpsit  for 
work,  and  a  plea  in  abatement  for  the  non-joinder  of  other  defendants,  s.  p.,  llohey  v. 
Howard,  2  Stark.  555;  s.  p.,  Stansfekl  v.  Levy,  3  Stark.  8  ;  Laeon  v.  Higgins,  3  Stark. 
178,  where,  in  assumpsit  for  goods,  coverture  of  the  defendant  was  the  sole  plea  ;  Hare 
V.  Munn,  1  M.  &  M.  241,  n.,  which  was  assumpsit  for  money  lent,  with  a  plea  in  abate- 
ment for  the  non-joinder  of  other  defendants;  s.  P.,  Morris  r.  Lotan,  1  Moo.  &  K.  233; 
"Wood  V.  Pringle,  Id.  217,  which  was  an  action  for  a  libel,  with  several  special  ])leas  of 
justification  as  to  part,  but  no  general  issue  ;  and,  as  to  the  parts  not  justified,  judg- 
ment was  suffered  by  default.  See  ace.  Comstock  v.  Hadlyme,  8  Conn.  261  ;  Aver  v. 
Austin,  6  Pick.  225";  Hoggett  v.  Exley,  9  C.  &  P.  324  ;  s.  c.  2  Moo.  &  R.  251.  On  the 
other  hand  are  Cooper  r.  Wakley;  3  C.  &  P.  474 ;  s.  c.  1  M.  ^  M.  248,  which  was  a  case 
for  a  libel,  with  pleas  in  justification,  and  no  general  issue  ;  but  this  is  plainly  contra- 
dicted by  the  subsequent  case  of  Wood  v.  Pringle,  and  has  since  been  overruled  in 
Mercer  v.  Whall  ;  Cotton  v.  James,  1  M.  &  U.  273 ;  s.  c.  3  C.  &  P.  505,  which  was 
tres^jass  for  entering  the  plaintiffs  house,  ajid  taking  his  goods  with  a  plea  of  justifica- 
tion under  a  commission  of  bankruptcy ;  but  this  also  is  expressly  conti'adicted  in 
ilorris  v.  Lotan  ;  Bedell  v.  Kussell,  Ky.  &  JI.  293,  which  was  trespass  of  assault  and 
battery,  and  battery,  and  for  sliooting  the  plaintiff,  to  which  a  justification  was 
pleaded  ;  where  Best,  J.,  reluctantly  yielded  to  the  su]iposed  authority  of  Hodges  v. 
Holder,  3  Cam])b.  36(5,  and  Jackson  v.  Hesketh,  2  Stark.  518;  in  neither  of  which, 
however,  were  the  damages  controverted  ;  Fish  v.  Tr.ivers,  3  C.  &  P.  578,  decided  by 
Best,  J.,  on  the  authority  of  Cooper  v.  Wakley,  and  Cotton  v.  James;  Burrell  v.  Nich- 
olson, 6  Car.  k,  P.  202,  which  was  tresjiass  for  taking  the  plaintifi's  goods  in  his  house, 
and  detaining  them  one  hour,  which  the  defendant  justified  as  a  distress  for  parish  rates; 
and  the  only  issue  was,  whether  the  house  was  within  the  parish  or  not.  But  here, 
also,  the  damages  were  not  in  dispute,  and  seem  to  have  been  regarded  as  merely  nom- 
inal. See  also  Scott  v.  Hull,  8  Conn.  296.  In  Norris  v.  Ins.  Co.  of  North  America,  3 
Yeates,  84,  which  was  covenant  on  a  policy  of  insurance,  to  which  performance  was 
pleaded,  the  damages  were  not  then  in  dispute,  the  parties  having  provisionally  agreed 

(a)  In  Page  v.  Osgood,  2  Gray  (Mass.),  or   even  in  mitigation  of  damages,  he  is 

260,  the  question  arose,  who  should  have  entitled  to  open  the  case.     Gaul  v.  Flem- 

the   opening   and   close  to  the  jury,  the  ing,  10  Ind.  253.     But  that  proposition  is 

defendant  admitting  the  plaintiff's  cause  certainly  not  maintainable,  since  the  plain- 

of  action,  and  the  only  issue  being  on  the  tiff  is   still  entitled   to   give   evidence  of 

defendant's  declaration  in  set-off ;   which  facts  showing  special  malice,  in  aggrava- 

demand   in    set-off    the    statute    provides  tion    of  damages,  and  to  open   the   case 

"shall  be  tried  in  like  manner  as  if  it  had  generally  upon  the  question  of  damages, 

been  set   forth  in  an  action  brought  by  The  English  form  of  expression  upon  this 

him,"  and  there  being  a  uniform  rale  of  point  will  go  far  to  indicate  the   precise 

court  giving   tlie   right   of  opening    and  inquiry  upon  which  the  right  should  turn, 

closing  in  all  cases  to  the  plaintiff.     The  The  inquiry  there  is,  which  party  has  the 

court  lield  that  there  was   no  reason    for  right  "  to  begin  "  ?     And  that  will  deter- 

depn-ting  from  the  rule,  which  had  been  mine  where  the  right  to  close  rests.     The 

luund  to  be  of  great  practical  convenience,  party  first  required  to  give  proof  has  the 

and  overruled   the  exceptions,   thus   sus-  opening  and  the  general  close ;  the  other 

tainiug  the  plaintiff's  right  in  such  a  case  party  being  reixuired  to  give  all  his  evi- 

to  open  and  close.     It  seems  to  have  been  dence,   both   in   reply   to   plaintiff^s    case 

considered    in    some     of    the .  American  and   support   of  his    own,    at   one   time, 

.States,  that  in  actions  like  slander,  where  leaving  the   general   reply  to    the    other 

the  defendant  admits  the  speaking  of  the  party, 
words,  and  offers  evidence  in  justification, 


CHAP.    III.]  THE   BURDExX    OF    PROOF.  119 

where,  consequently,  the  onus  prohandi  is  not  technically  pre- 
sented, the  courts  adopt  the  same  principles  which  govern  in 
proceedings  at  common  law.  Thus,  in  the  probate  of  a  will,  as 
the  real  question  is,  whether  there  is  a  valid  will  or  not,  the  ex- 
ecutor is  considered  as  holding  the  affirmative;  and  therefore  he 
opens  and  closes  the  case,  in  whatever  state  or  condition  it  may 
be,  and  whether  the  question  of  sanity  is  or  is  not  raised.  ^ 

upon  a  mode  of  liquidation.  But  in  England  the  entire  subject  has  recently  undergone 
a  review,  and  the  rule  has  been  established,  as  applicable  to  all  personal  actions,  that 
the  piaintitf  .shall  begin,  wherever  he  goes  for  substantial  damages  not  already  ascer- 
taineil.  Mercer  v.  Whall,  9  Jur.  576  ;  .5  Q.  B.  447.  In  this  case  Lord  Denmau,  C.J., 
in  delivering  the  judgment  of  the  court,  expressed  his  opinion  as  follows:  '"The 
natural  course  vvoidd  seem  to  be,  that  the  piaintitf  should  bring  his  own  cause  of 
complaint  before  the  court  and  jury,  in  every  case  where  he  has  anything  to  prove 
either  as  to  the  facts  necessary  for  his  obtaining  a  verdict,  or  as  to  the  amount  of 
damage  to  which  he  conceives  the  proof  of  such  facts  may  entitle  him.  The  law, 
however,  has  by  some  been  supposed  to  differ  from  this  course,  and  to  reijuire  that  the 
defendant,  by  admitting  the  cause  of  action  stated  on  the  record,  and  pleading  only 
some  affirmative  fact,  which,  if  proved,  will  defeat  the  plaintiffs  action,  may  entitle 
himself  to  o])en  the  proceeding  at  the  trial,  anticipating  the  plaintiff's  statement  of  his 
injury,  disparaging  him  and  his  ground  of  complaint,  ol^fering  or  not  offering,  at  his  own 
option,  any  proof  of  his  defensive  allegation,  and,  if  he  offers  that  proof,  adapting  it  not 
to  the  ])laintifrs  case  as  established,  but  to  that  which  he  chooses  to  represent  that  the 
plaintiff's  case  will  be.  It  appears  expedient  that  the  plaintiff  should  begin,  in  order 
that  the  judge,  the  jury,  and  the  defendant  himself  should  know  precisely  how  the 
claim  is  shaped.  This  tlisclosure  may  convince  the  defendant  that  the  defence  which 
he  has  pleaded  cannot  be  established.  On  hearing  the  extent  of  the  demand,  the 
defendant  may  be  induced  at  once  to  submit  to  it  rather  than  persevere.  Thus  the 
affair  reaches  its  natural  and  best  conclusion.  If  this  does  not  occur,  the  plaintiff,  by 
bringing  forward  his  case,  points  his  attention  to  the  proper  object  of  the  trial,  and 
enables  the  defendant  to  meet  it  with  a  full  understanding  of  its  nature  and  character. 
If  it  were  a  presumption  of  law,  or  if  experience  prove  that  the  plaintiffs  evidence 
must  always  occupy  many  hours,  and  that  the  defendant's  could  nof;  last  more  than  as 
many  minutes,  some  advantage  would  be  secured  by  postponing  the  plaintiff's  case  to 
that  of  the  defendant.  But,  first,  the  direct  contrary  in  both  instances  may  be  true  ; 
and,  secondly,  the  time  would  only  be  saved  by  stopping  the  cause  for  the  purpose  of 
taking  the  verdict  at  the  close  of  the  defendant's  proofs,  if  that  verdict  were  in  favor  of 
the  defendant.  This  has  never  been  done  or  proposed  ;  if  it  were  suggested,  the  jury 
would  be  likely  to  say,  on  most  occasions,  that  they  could  not  form  a  satisfactory 
opinion  on  the  effect  of  the  defendant's  proofs  till  they  had  heard  the  giievance  on 
which  the  plaintiff  founds  his  action.  In  no  other  case  can  any  practical  advantage  be 
suggested  as  arising  from  this  method  of  proceeding.  Of  the  disadvantages  that  may 
result  from  it,  one  is  the  strong  temptation  to  a  defendant  to  abuse  the  privilege.  If  he 
well  knows  that  the  case  can  be  proved  against  him,  there  may  be  skilful  management 
in  confessing  it  by  his  plea,  and  affirming  something  by  way  of  defence  which  he  knows 
to  be  untrue,  for  the  mere  purpose  of  beginning."  See  9  Jur.  578;  5  Q.  B.  458.  Ordina- 
rily speaking,  the  ilecision  of  the  judge,  at  Alsi  Prius,  on  a  nratter  resting  in  his  discre- 
tion, is  not  subject  to  revision  in  any  other  court.  But  in  Huckman  v.  Fernie,  5  M.  &  W. 
505,  the  court  observed  that,  though  they  might  not  interfere  in  a  very  doubtful  case, 
yet  if  the  decision  of  the  judge  "  were  clearly  and  manifestly  wrong,"  they  would  inter- 
fere to  set  it  right.  In  a  subserpient  case,  however,  it  is  said  that,  instead  of  "  were 
clearly  and  manifestly  wrong,"  the  language  actually  used  by  the  court  was,  "did  clear 
and  manifest  wrong  ;  "  meaning  that  it  was  not  sufficient  to  show  merely  that  the  wrong 
party  had  begun,  but  that  some  injustice  had  been  done  in  consequence.  See  Edwards 
V.  Matthews,"ll  Jur.  398.     See  also  Geach  v.  Ingall,  9  Jur.  691  ;  14  M.  &  W.  95. 

^  Buckminster  v.  Perry,  4  Mass.  593;  Brooks  v.  Barrett,  7  Pick.  94;  Comstock  v, 
Hadlyme,  8  Conn.  254;  Ware  v.  Ware,  8  Greenl.  42  ;  Hubbard  v.  Hubbard,  6  Mass. 
397. 


120  LAW   OF   EVIDENCE.  [PART   II. 

§  78.  Negative  allegations.  To  this  general  rule,  that  the  bur- 
den of  proof  is  on  the  party  holding  the  affirmative,  there  are 
some  exceptions^  in  which  the  proposition,  though  negative  in  its 
terms,  must  be  proved  by  the  party  who  states  it.  One  class  of 
these  exceptions  will  be  found  to  include  those  cases  in  which 
the  plaintiff  c/rounds  his  right  of  actiori  upon  a  negative  allegation, 
and  where,  of  course,  the  establishment  of  this  negative  is  an 
essential  element  in  his  case  ;^  (a)  as,  for  example,  in  an  action 
for  having  prosecuted  the  plaintiff  maliciously  and  without  prob- 
able cause.  Here,  the  want  of  probable  cause  must  be  made 
out  by  the  plaintiff,  by  some  affirmative  proof,  though  the  propo- 
sition be  negative  in  its  terms. ^  So,  in  an  action  by  husband 
and  wife,  on  a  promissory  note  made  to  the  wife  after  marriage,  if 
the  defendant  denies  that  she  is  the  meritorious  cause  of  action, 
the  burden  of  proving  this  negative  is  on  him.*^  So,  in  a  prosecu- 
tion for  a  penalty  given  by  statute,  if  the  statute,  in  describing  the 
offence,  contains  negative  matter,  the  count  must  contain  such 
negative  allegation,  and  it  must  be  supported  by  prima  facie 
proof.  Such  is  the  case  in  prosecutions  for  penalties  given  by 
statutes,  for  coursing  deer  in  enclosed  grounds,  not  having  the 
consent  of  the  owner ;  *  or  for  cutting  trees  on  lands  not  the  party's 
own,  or  taking  other  jDroperty,  not  having  the  consent  of  the 
owner  ;^  or  for  selling,  as  a  peddler,  goods  not  of  the  produce  or 
manufacture  of  the  country;^  or  for  neglecting  to  prove  a  will, 
without  just  excuse  made  and  accepted  by  the  Judge  of  Probate 
therefor.'^  In  these,  and  the  like  cases,  it  is  obvious,  that  plenary 
proof  on  the  part  of  the  affirmant  can  hardly  be  expected ;  and, 
therefore,  it  is  considered  sufficient  if  he  offer  such  evidence  as, 

1  1  Chitty  on  PI.  206  ;  Spieres  v.  Parker,  1  T.  K.  141  ;  Kex  r.  Pratten,  6  T.  K.  559  ; 
Holmes  v.  Love,  3  B.  &  C.  242;  Lane  v.  Crombie,  12  Pick.  177  ;  Harvey  v.  Towers,  15 
Jur.  544 ;  4  Eng.  Law  &  Eq.  Rep.  531. 

2  Purcell  V.  Macnaniara,  1  Campb.  199  ;  s.  n.  9  East,  361  ;  Ulmer  v.  Leland,  1 
Greenl.  135 ;  Gibson  v.  Waterhouse,  4  Greenl.  226. 

3  Philliskirk  v.  Phinkwell,  2  M.  &  S.  395;  i.er  Bayley,  J. 

*  Rex  V.  Rogers,  2  Cainpb.  654 ;  Rex  v.  Jarvis,  1  East,  643,  n. 

5  Little  V.  Thompson,  2  Greenl.  22S;  Rex  i-.  Hazy  et  al.,  2  C.  &  P.  458. 

^  Commonwealth  v.  Samuel,  2  Pick.  103. 

^  Smith  V.  !\Ioore,  6  Greenl.  274.  See  other  examples  in  Commonwealth  v.  Max- 
well, 2  Pick.  139;  1  East.  P.  C.  166,  §  15;  Williams  v.  Hiugham  and  Quiney  Turnpike 
Co.,  4  Pick.  341  ;  Rex  v.  Stone,  1  liast,  639  ;  Rex  v.  Burdett,  4  B.  &  Aid.  95,  140  ; 
Rex  V.  Turner,  5  M.  &  S.  206;  Woodbury  v.  Frink,  14  111.  279. 

(fi)  Nash  V.  Hall,  4  Ind.  444.  Mr.  dia  Co.,  3  East,  192.  and  also,  as  another 
Taylor,  Ev.  §  339,  states  as  an  exception,  exception  (§  347),  that  where  the  subject- 
that  where  the  affirmative  is  supported  matter  of  the  allegation  was  peculiarly 
by  a  disputable  presumption  of  law,  the  within  the  knowledge  of  one  of  the  parties, 
party  supporting  the  negative  must  call  that  jiarty  must  ])rove  its  entry.  Dick- 
witnesses,  in  the  first  instance,  to  over-  son  v.  Evans,  6  T.  R.  57.  But  see  Elkin 
come  this  presumption.  "Williams  j;.  E.  In-  v.  Janson,  13  M.  &  W.  662. 


CHAP.    III.]  THE   BURDEN    OP   PROOF,  121 

ill  the  absence  of  counter  testimony,  would  afford  ground  for  pre- 
suming that  the  allegation  is  true.  Thus,  in  an  action  on  an 
agreement  to  pay  £100,  if  the  plaintiff  would  not  send  herrings 
for  one  year  to  the  London  market,  and,  in  particular,  to  the 
house  of  J.  &  A.  Millar,  proof  that  he  sent  none  to  that  houso 
was  held  sufficient  to  entitle  him  to  recover,  in  the  absence  of  op^ 
posing  testimony. s  [b)  And  generally,  where  a  party  seeks,  from 
extrinsic  circumstances,  to  give  eifect  to  an  instrument  which, 
on  its  face,  it  would  not  have,  it  is  incumbent  on  him  to  prove 
those  circumstances,  though  involving  the  proof  of  a  negative ;  for, 
in  the  absence  of  extrinsic  proof,  the  instrument  must  have  its 
natural  operation,  and  no  other.  Therefore,  where  real  estate 
was  devised  for  life  with  power  of  appointment  by  will,  and  the 
devisee  made  his  will,  devising  all  his  lands,  but  without  mention 
of  or  reference  to  the  power,  it  was  held  no  execution  of  the 
power,  unless  it  should  appear  that  he  had  no  other  lands ;  and 
that  the  burden  of  showing  this  negative  was  upon  the  party 
claiming  under  the  will  as  an  appointment.^ 

§  79.  Negative  allegations.  But  where  the  subject-matter  of  a 
negative  avermant  lies  peculiarly  within  the  knowledge  of  the 
other  party,  the  averment  is  taken  as  true,  unless  disproved  by 
that  party.  Such  is  the  case  in  civil  or  criminal  prosecutions 
for  a  penalty  for  doing  an  act  which  the  statutes  do  not  permit 
to  be  done  by  any  persons,  except  those  who  are  duly  licensed 
therefor;  as,  for  selling  liquors,  exercising  a  trade  or  profession, 
and  the  like.  Here  the  party,  if  licensed,  can  immediately  show 
it,  without  the  least  inconvenience ;  whereas,  if  proof  of  the  nega- 
tive were  required,  the  inconvenience  would  be  very  great.  ^  {a) 

8  Calder  v.  Rutherford,  3  Brod.  &  Bing.  302;  s.  c.  7  Moore,  158. 

9  Doe  V.  Johnson,  7  Man.  &  Gr.  1047. 

1  Rex  V.  Turner,  5  M.  &  S.  206;  Smyth  v.  Jefferies,  9  Price,  257;  Sheldon  v.  Clark, 
1  Johns.  513;  United  States  v.  Hayward,  2  Gall.  485;  Geuing  v.  State,  1  McCord,  573; 
Commonwealth  v.  Kimball,  7  Met.  304  ;  Harrison's  Case,  Paley  on  Conv.  45,  n.  ; 
Apothecaries'  Co.  v.  Bentley,  Ry.  &  M.  159  ;  Haskill  v.  Commonwealth,  3  B.  Monr. 
342;  State  v.  Morrison,  3  Dev.  299;  State  v.  Crowell,  11  Shepl.  171  ;  Shearer  v.  State, 
7  Blackf.  99.  By  a  Statute  of  Massachusetts,  1844,  c.  102,  the  burden  of  proving  a 
license  for  the  sale  of  liquors  is  expressly  devolved  on  the  person  selling,  in  all  prose- 
cutions for  selling  liquors  without  a  license. 

(b)  Vigus  V.   O'Bmnon,  118  111.  348  ;  any  license,  appointment,  or  authority,  he 

Beardstown  v.  Virginia  et  al.,  76  111.  34.  shall  i)rove  the  same,  and  nntil  sucli  ))roof 

(a)  Lovell  v.  Payne,  30  La.  An.  Pt.  I.  the  ^iresumption  shall  be  that  he  is  not  so 

511  ;    Great  Western  R.  R.  Co.  v.  Bacon,  autliorized.     Pub.  Stat.  c.  214,  §  12., 

30  111.  347;  Wheat  v.  State,  6  Wis.   455.  Upon  a   complaint,   however,    for   car- 

Contra,  State  v.  Evans,  5  Jones  (N.  C),  rying  into.xicating   liquor    into    a    town, 

L.  250.  having  reason  to  believe  that  it  was  to  be 

By    statute    in    Massachusetts,    in   all  sold  there  in  violation  of  law  (which  is  a 

criminal   ])rosecutions   in   wdiich    the   de-  statutory    crime   in    Massachusetts),    the 

feudant  relies   for  his  justilication   upon  defendant  need  not  prove  that  the  town 


122 


LAW   OF   EVIDENCE. 


[part  II. 


§  80.  Negative  allegations.  So,  where  the  negative  allegation 
involves  a  charge  of  criminal  neglect  of  duty,  whether  official  or 
otherwise ;  or  fraud ;  or  the  wrongful  violation  of  actual  lawful 
possession  of  property;  the  party  making  the  allegation  must 
prove  it;  for  in  these  cases  the  presumption  of  law,  which  is 
always  in  favor  of  innocence  and  quiet  possession,  is  in  favor  of 
the  party  charged,  (a)     Thus,  in  an   information  against   Lord 


into  which  the  liquor  was  carried  had 
authorized  the  sale  of  liquors.  But  tlie 
government  must  ]»rove  that  a  sale  in  that 
town  woukl  be  illegal,  as  part  of  its  case. 
Com.  I'.  Babcock,  110  Mass.  107.  But  if 
the  iiKlictment  is  for  keeping  liquors  for 
sale,  the  defendant  must  prove  that  the 
town  has  authorized  the  sale.  Com.  v. 
Curran,  119  Mass.  206;  Com.  v.  Dean, 
110  Mass.  357  ;  Com.  v.  Leo,  Id.  414. 
The  government  may,  however,  prove  that 
the  sale  is  without  license  by  indirect 
evidence,  e.  g.,  the  admissions  of  the  de- 
fendant, the  situation  of  the  liquors,  any 
circumstances  of  concealment.  Com.  v. 
Locke,  114  Mass.  288;  or  may  show  that 
the  license  is  void.  Com.  v.  Welch,  144 
Mass.  356.  See  also  Com.  v.  Thurlow',  24 
Pick.  (Mass.)  374,  381,  which  was  an 
indictment  against  the  defendant  for  pre- 
sumiiig  to  be  a  retailer  of  spirituous  liq- 
uors without  a  license  theretbr.  In  this 
case  the  court  did  not  decide  the  general 
question,  saying  that  "oases  may  be  af- 
fected by  special  circumstances,  giving 
rise  to  distinctions  applicable  to  them  to 
be  considered  as  they  arise,"  but  held 
under  that  indictment  that  the  govern- 
ment must  produce  prima  facie  evidence 
that  the  defendant  was  not  licensed.  See 
post,  vol.  iii.  §  24  and  n.  In  Com.  v. 
Kimball,  7  Met.  (Mass.)  304,  the  court 
held,  in  a  similar  indictment,  that  the 
docket  and  minutes  of  the  county  com- 
missioners, before  their  records  are  made 
up,  are  competent  evidence,  and  if  no 
license  to  the  defendant  appears  on  such 
docket  or  minutes  (the  county  commis- 
sioners being  the  sole  authority  to  grant 
licenses),  it  is  prima  facie  evidence  that 
the  defendant  was  not  licensed.  Where 
one  being  indicted  for  illegally  selling  liq- 
uors on  tlie  Lord's  Day,  justified  under  a 
license  to  sell  liquor  to  guests  of  his  hotel, 
it  was  held  that  the  burden  of  proof  was 
on  him  to  show  that  the  persons  to  whom 
he  sold  were  guests  of  his  hotel,  and  that, 
there  being  no  evidence  on  that  point,  he 
was  projierly  convicted.  Com.  v.  Towle, 
138  Mass.  490. 

It  has  been  decided  that  the  provisions 
of  the  Massachusetts  act  of  1844,  c.  102, 


do  not  apj'ly  to  indictments  under  the 
law  of  1855,  c.  405,  which  enacts  that  all 
buildings,  &c.,  used  for  the  illegal  sale  or 
keejiing  of  intoxicating  liquors,  shall  be 
deemed  common  nuisances;  an  act  of  the 
same  year  (Acts  1855,  c.  215),  making 
any  sale  or  keeping  for  sale,  within  the 
State,  of  intoxicating  liquors,  unless  in  the 
original  packages,  &c.,  without  authority, 
an  unlawi'ul  and  criminal  act.  This  was 
decided  in  Com.  v.  Lahy,  8  Gray  (Mass.), 
459. 

In  civil  cases  it  has  been  held  that,  to 
recover  the  ])rice  of  liquor  sold,  the  plain- 
tifl'  must  show  that  he  was  licensed  to  sell. 
Bliss  V.  Brainard,  41  N.  H.  256  ;  Solo- 
mon V.  Dreschler,  4  Minn.  278;  Kane  v. 
John.ston,  9  Bosw.  (N.  Y.)  154. 

But,  in  other  States,  that  the  burden 
of  proving  the  sale  to  be  illegal  is  on  the 
defendant.  W^ilson  v.  Melvin,  13  Gray 
(Mass.),  73  ;  Craig  r.  Proctor,  6  R.  I.  547. 

(a)  Kline  v.  Baker,  106  Mass.  61 ; 
Phelps  V.  Cutler,  4  Gray  (Mass.),  139. 
This  rule  ajiplies  in  insurance  cases,  where 
the  insurance  company  claims  to  be  ex- 
empt from  paying  the  sum  insured  be- 
cause there  lias  been  a  breach  of  some 
condition  contained  in  the  policy,  or  the 
violation  of  some  obligation  or  duty  im- 
posed upon  the  insured  by  the  law  or 
contract;  the  burden  then  rests  upon  the 
comjiany  to  establish  the  facts  which  it  thus 
relies  upon  as  a  defence  to  the  claim  under 
the  policy,  for  every  presumption  of  law  is 
against  the  commission  of  a  crime,  and  in 
all  forms  of  action,  civil  and  criminal, 
every  person  is  presumed  to  be  innocent 
until  his  guilt  has  been  established  by  at 
least  a  preponderance  of  evidence  ;  and 
this  presumjition  would  be  violated  if  the 
jierson  suing  upon  a  policy  insuring  his 
jiroperty  against  fire  was  bound  to  assume 
the  burden  of  showing  that  he  was  not 
guilty  of  the  crime  of  burning  his  own 
])roperty.  The  defendant  making  that  al- 
legation against  him  must  bear  the  burden 
of  establishing  it.  Tidmarsh  v.  Wash.  F. 
&  M.  Ins.  Co..  4  Mason,  439;  Fiske  t;. 
N.  E.  Mar.  Ins.  Co.,  15  Pick.  310;  Mur- 
ray V.  N.  Y.  L.  Ins.  Co.,  85  N.  Y.  236  ; 
Heilman  v.  Lazarus,  90  Id.  672. 


CHAP.   III.]  THE   BURDEN    OF   PROOF.  123 

Halifax,  for  refusing  to  deliver  up  the  rolls  of  the  Auditor  of 
the  Exchequer,  in  violation  of  his  duty,  the  prosecutor  was  re- 
quired to  prove  the  negative.  So,  where  one  in  office  was  charged 
with  not  having  taken  the  sacrament  within  a  year;  and  where 
a  seaman  was  charged  with  having  quitted  the  ship,  without  the 
leave  in  writing  required  by  statute ;  and  where  a  shipper  was 
charged  with  having  shipped  goods  dangerously  combustible  on 
board  the  plaintiff's  ship,  without  giving  notice  of  their  nature 
to  any  officer  on  board,  whereby  the  ship  was  burned  and  lost ;  in 
each  of  these  cases,  the  party  alleging  the  negative  was  required 
to  prove  it.i  So,  where  the  defence  to  an  action  on  a  policy  of 
insurance  was,  that  the  plaintiff  improperly  concealed  from  the 
underwriter  certain  facts  and  information  which  he  then  already 
knew  and  had  received,  it  was  held  that  the  defendant  was  bound 
to  give  soj7ie  evidence  of  the  non-communication.  ^  So,  where 
the  goods  of  the  plaintiff  are  seized  and  taken  out  of  his  posses- 
sion, though  for  an  alleged  forfeiture  under  the  revenue  laws, 
the  seizure  is  presumed  unlawful  until  proved  otherwise.^ 

§  81.  Infancy,  insanity,  death,  negligence,  failure  of  consideration. 
So,  where  infancy  is  alleged;  ^  or,  where  one  born  in  lawful  wed- 
lock is  alleged  to  be  illegitimate^  the  parents  not  being  separated 
by  a  sentence  of  divorce ;  ^  or,  where  insanity  is  alleged ;  ^  or,  a 
person  once  living  is  alleged  to  be  dead,  the  presumption  of  life 
not  being  yet  worn  out  by  lapse  of  time;-^  or,  where  nonfeasance 
or  negligence  is  alleged,  in  an  action  on  contract ;  ^  or,  where  the 

1  Uniteil  States  v.  Hiiywavd,  2  Gall.  498  ;  Hartwell  v.  Root,  19  Johns.  345  ;  Bull. 
N.  P  [298] ;  Rex  v.  Hawkins,  10  East,  211  ;  Frontine  v.  Frost,  3  B.  &  P.  302  ;  Wil- 
liams V.  E.  India  Co.,  3  East,  192.  See  also  Commonwealth  v.  Stow,  1  Mass.  54 ; 
Evaus  V.  Birch,  3  Campb.  10. 

■^  Elkin  V.  Janson,  13  M.  &  W.  655. 

3  Aitcheson  v.  Madock,  Peake's  Cas.  162.  An  exception  to  this  rule  is  admitted  in 
Chancery  in  the  case  of  attorney  and  client  ;  it  being  a  rule  there,  that  if  the  attoi'ney, 
retaining  the  connection,  contracts  with  his  client,  he  is  subject  to  the  burden  of  prov- 
ino-  that  no  advantage  has  been  taken  of  the  situation  of  the  hatter.  1  Story,  Eij.  Jur. 
§  311  ;  Gibson  v.  Jeyes,  6  Ves.  278;  Cane  v.  Ld.  Allen,  2  Dow,  289,  294,  299. 

1  Borthwick  v.  Carruthers,  1  T.  R.  648. 

2  Case  of  the  Banbury  Peerage,  2  Selw.  N.  P.  (by  Wheaton)  558  ;  Morris  v.  Davies, 
3C.  &  P.  215,  427. 

3  Attorney-General  x\  Parnther,  3  Bro.  C.  C.  441,  443,  per  T.ord  Thurlow  ;  cited 
with  approbation  in  White  v.  Wilson,  13  Ves.  87,  88  ;  Hoge  v.  Fisher,  1  Pet.  C.  C.  163. 

*  Throgmorton  I'.  Walton,  2  Roll.  461  ;  Wilson  v.  Hodges,  2  East,  313  ;  svpra,  §  41. 

5  Crowley  v.  Page,  7  C.  &  P.  790  ;  Smith  v.  Davies,  Id.  307  ;  Claike  v.  Spence,  10 
Watts,  335  ;  Story' on  Bailm,  §§  454,  457,  n.  (3d  ed.)  ;  Brind  v.  Dale,  8  C.  &  P.  207. 
See  further,  as  to  the  right  to  begin,  and,  of  course,  the  burden  of  proof,  Pontifex  v. 
Jolly,  9  C.  &  P.  202  ;  Harnett  v.  Johnson,  Id.  206 ;  Aston  v.  Perkes,  Id.  231 ;  Osborn 
I'.  Thompson,  Id.  337  ;  Bingham  v.  Stanley,  Id.  374  ;  Lambert  v.  Hale,  Id.  506  ;  Lees 
V.  Hoffstadt,  Id.  599  ;  Chapman  v.  Emden,  Id.  712 ;  Doe  v.  Rowlands,  Id.  734  ;  Ridg- 
way  I'.  Ewbank,  2  Moo.  &  R.  217  ;  Hudson  v.  Brown,  8  C.  &  P.  774;  Soward  v.  Leg- 
gett,  7  C.  &  P.  613  ;  Bowles  v.  Neale,  Id.  262  ;  Richardson  v.  Fell,  4  Dowl.  10  ;  Silk 
V.  Humphery,  7  0.  &  P.  14. 


124 


LAW   OP   EVIDENCE. 


[part  II. 


want  of  a  due  stamp  is  alleged,  there  being  faint  traces  of  a  stamp 
of  some  kind;*^  or,  where  a  failure  of  consideration  is  set  up  hy 
the  plaintiff,  in  an  action  to  recover  the  money  paid;"  or,  where 
the  action  is  founded  on  a  deficiency  in  the  quantity  of  land  sold, 
and  the-  defendant  alleges,  in  a  special  plea,  that  there  was  no 
deficiency;^  the  burden  of  proof  is  on  the  party  making  the  alle- 
gation, notwithstanding  its  negative  character,  (a) 

6  Doe  V.  Coombs,  3  Q.  B.  687. 

7  Treat  v.  Orono,  13  Slieiil.  217. 

B  McCrea  v.  Marshall,  1  La.  An.  29. 


(a)  The  rule  as  to  the  burden  of  proof 
where  insanity  is  alleged  has  undergone 
much  discussion  in  the  more  recent  cases, 
and  the  cases  again  have  been  collated  and 
analjved  in  numerous  text-books  and  law 
magazines.  There  is  an  acknowledged  con- 
flict in  the  decisions  on  this  subject,  and 
authorities  may  be  found  for  both  sides  of 
the  various  rules  that  have  been  laid  down 
by  various  courts.  The  question  arises 
most  frequently  in  one  of  three  forms, 
1.  In  a  criminal  trial,  where  the  defence 
is  insanity.  2.  On  the  probate  of  a  will. 
3.  When  the  defence  of  insanity  is  inter- 
posed in  an  action  on  a  contract. 

Closely  connected  with  this  question  is 
the  question,  what  is  the  true  meaning  of 
the  maxim,  every  man  is  presumed  to  be 
sane  ? 

1.  In  criminal  cases  there  are  two 
widely  adopted  views  :  — 

(a)  In  ]\lassachusetts,  it  is  held  that  the 
burden  of  proof  of  the  prisoner's  sanity  is 
upon  the  government,  and  that  this  fact 
must  be  made  out  to  the  satisfaction  of  the 
jury  beyond  a  reasonable  doubt  before  they 
can  convict  the  prisoner  of  the  crime  with 
which  he  is  charged.  Thus,  in  Com.  v. 
Eddy,  7  Gray  (Mass.),  583,  which  was  an 
indictment  against  the  defendant  for  the 
murder  of  his  wife,  and  in  which  the  in- 
sanity of  the  defendant  was  pressed  to 
the  jury  as  a  defence,  the  court  instructed 
the  jury  in  substance  that  the  burden 
of  proof  was  on  the  government  through- 
out, and  did  not  shift  ;  although,  so  far 
as  the  sanity  of  the  defendant  was  con- 
cerned, the  burden  was  sustained  by  the 
legal  presumption  that  all  men  are  sane, 
which  presumption  must  stand  until  re- 
butted by  proof  to  the  contrary,  satisfactory 
to  the  jury.  Subsequently  in  Pomeroy's 
Case  (117  i^Iass.  143),  although  it  was  in- 
timated that  Cora.  v.  Eddy  was  not  a  bind- 
ing authority,  but  only  the  opinion  of  three 
judges,  the  court  lield  the  following  lan- 
guage :  "The  burden  is  upon  the  govern- 
ment to  prove  everything  essential  beyond 


reasonable  doubt ;  and  that  burden,  so  far 
as  the  matter  of  insanit}'  is  concerned,  is 
ordinarily  satisfactorily  sustained  by  the 
presumption  that  every  ])erson  of  sufficient 
age  is  of  sound  mind,  and  understands  the 
nature  of  his  acts.  But  when  the  circum- 
stances are  all  in,  on  the  one  side  going  to 
show  a  want  of  adequate  capacity,  on  the 
other  side  going  to  show  usual  intelligence, 
the  burden  rests,  where  it  was  in  the  begin- 
ning, upon  the  government  to  prove  the 
case  beyond  reasonable  doubt."  See  also 
Com.  V.  Heath,  11  Gray  C^ass.),  303; 
State  V.  Wilner,  40  Wis.  304  ;  State  v. 
Pike,  49  N.  H.  399  ;  State  v.  Jones,  50 
N.  H.  370.  And  this  perhaps  is  the  pre- 
vailing opinion.  People  v.  Garbutt,  17 
Mich.  9  ;  State  v.  Crawford,  11  Kan.  32. 
But  it  does  not  seem  to  be  accefited  in  New 
York  (Flanagan  v.  People,  52  X.  Y.  467), 
where  it  is  said  to  be  still  an  open  question 
what  amount  of  proof  is  requisite  to  prove 
insanity.  Cf.  People  v.  Brotherton,  75  N. 
Y.  160. 

(b)  In  Pennsylvania  and  other  States, 
it  is  held  that  insanity  must  be  proved  by 
the  prisoner  by  a  preponderance  of  evi- 
dence, and  it  is  not  sufficient  for  him  to 
raise  a  doubt.  Lynch  v.  Com.,  77  Pa.  St. 
205  ;  Ortwein  v.  Com.,  76  Pa.  St.  414. 
The  cases  on  this  subject  are  very  fully 
collected  and  stated  in  a  note  to  State  v. 
Crawford,  Sup.  Ct.  Kansas,  23  Am.  L.  Reg. 
N.  s.  21.  And  see  also  AVharton,  Horn. 
666  ;  and  for  a  full  citation  of  the  cases 
and  discussion,  see  post,  vol.  iii.  §  5,  notes. 

2.  When  a  question  arises,  on  the  jjro- 
bate  of  a  will,  whether  the  testator  was  of 
sound  mind,  the  burden  of  proving  that 
fact  is,  by  the  better  cases,  held  to  rest 
upon  the  party  propounding  the  will. 
Crowninshield  v.  Crowninshield,  2  Gray 
(Mass.),  524;  Mayo  v.  Jones,  78  N.  V. 
402.  But  in  some  States  it  is  held  that 
the  presumption  of  the  law  is  in  favor  of 
testamentary  capacity  and  those  who  insist 
on  the  contrary  have  the  burden  of  evi- 
dence, i.  c,  must  introduce  the  first  actual 


CHAP.    Ill,] 


THE   BURDEN    OF   PROOF. 


125 


evitleiice  to  sLow  insanity.  This  they  may 
do  by  showinj^  that  insanity  existed  piior 
to  the  making  of  the  disimted  paper.  Af- 
ter such  j)ioof,  the  proponents  must  show 
that  the  execution  of  tlie  will  was  during 
a  lucid  interval.  Elkinton  v.  Brick,  44 
N.   J.  Eq.   158. 

3.  Where  insanity  is  relied  on  as  a  de- 
fence to  an  action  on  a  contract,  it  is  treated 
as  a  plea  in  confession  and  avoidance,  and 
the  burden  of  proof  is  said  to  be  on  the 
{larty  who  alleges  the  insanity.  Brown  v. 
Brown,  39  Mich.  792.  But  cf.  Myatt  v. 
Walker,  44  111.  485  ;  Weed  v.  Mutual  Life 
Ins.  Co.,  70  N.  Y.  561  ;  Anderson  v. 
Cramer,  11  W.  Va.  562  ;  Jarrett  v.  .larrett, 
Id.  584  ;  Titlow  v.  Titlow,  54  Pa.  St.  216  ; 
Kipley  V.  Babcock,  13  Wis.  425  ;  Walcott 
V.  Alleyn,  Milw.  Ec.  R.  (Ir.)  69;  White 
V.  Wilson,  13  Ves.  87  ;  Perkins  v.  Perkins, 
39  N.  H.  163.  When  the  question  of  san- 
ity comes  up  in  a  civil  case,  it  arises  gen- 
erally as  an  affirmative  allegation  of  tlie 
insanity  of  some  person,  and  the  burden  of 
proof  of  such  insanity  is  upon  the  party  to 
whose  case  the  allegation  is  material  and 
necessary.  Thus,  if  the  guardian  of  an  in- 
.sane  person  brings  an  action  to  recover  the 
proceeds  of  a  mortgage  and  note,  whic'h 
■was  assigned  by  the  insane  person  while  he 
was  insane,  the  guardian  must  allege  such 
insanity,  and  the  burden  of  proof  is  on  him. 
Wright  V.  Wright,  139  ilass.  177. 

The  burden  of  proof  in  such  cases,  re- 
mains throughout  the  trial  u])on  the  party 
making  the  allegation  of  insanity.  If, 
however,  he  proves  insanity  existing  at  a 
time  prior  to  the  time  of  the  act  in  issue, 
and  not  arising  from  the  violence  of  short- 
lived disease,  this  proof,  aided  by  the  pre- 
sum]ition  of  continuance  of  a  state  of  things 
once  proved  to  exist,  shifts  the  burden  of 
evidence  upon  the  party  opposing  the  alle- 
gation of  insanity,  and  he  must  meet  this 
either  with  proof  of  a  lucid  interval  at  the 
time  of  the  act  in  issue,  or  by  evidence  re- 
butting that  of  the  party  alleging  insanity. 
In  either  case,  after  all  the  evidence  is  in, 
the  jury  must  be  satisfied  that  a  prepon- 
derance of  the  evidence  favors  the  allega- 
tion of  insanity,  or  the  party  alleging 
such  insanity  fails.  Wright  v.  Wright, 
supra. 

As  to  the  burden  of  proof  when  an  nlibi 
is  set  up,  in  Com.  v.  Choate,  105  Mass. 
452,  it  was  held  that  a  charge  to  the  jury 
—  tliat  when  the  defendant  wished  them 
to  take  as  an  affirmative  matter  of  fact 
proved,  that  he  was  at  a  certain  place  at  a 
certain  time,  the  burden  of  proof  was  upon 
him,  and,  if  he  failed  to  sustain  the  bur- 
den, they  could  not  consider  it  as  a  fact 
proved  ;  but  that  the  burden  was  upon  the 


government  to  show  tiic  defendant's  pres- 
ence at  the  commission  of  the  crime,  and 
on  that  question  they  were  to  consider  all 
his  evidence  tending  to  prove  an  alibi,  and 
if  on  all  the  evidence  they  entertained  a 
reasonable  doubt  as  to  his  presence  they 
should  ac(iuit  —  was  unobjectiomiblc.  The 
tendency  in  the  later  cases  is  to  treat  an 
alibi  as  not  demanding  specific  instructions 
or  at  most,  that  the  juiy  should  be  charged 
that  if  the  evidence  of  the  defendant  raises 
a  reasonable  doubt  wiiether  he  was  jiresent 
at  the  commission  of  the  crime,  he  should 
be  acquitted.  State  v.  Sutton,  70  Iowa, 
268  ;  State  v.  Ward,  61  Vt.  192  ;  State  v. 
Cameron,  40  Vt.  555  ;  State  v.  Kline,  54 
Iowa,  183  ;  State  v.  lieitz,  83  N.  C.  634  ; 
People  V.  Fong  Ah  Sing,  64  Cal.  253  ;  State 
I'.  Reed,  62  Iowa,  40.  But  contra,  Walters 
V.  State,  39  Ohio  St.  215.  As  to  the 
burden  of  proof  in  other  defences  which 
arise  out  of  facts  wholly  unconnected  with 
the  facts  alleged  by  the  prosecution,  see 
2)ost.,  vol.  iii.  §§  29,  30.  it  is  generally 
said  that  the  burden  of  proof  of  any  such 
extrinsic  fact  is  on  the  prisoner.  People 
V.  Schryver,  42  N.  Y.  1. 

In  actions  upon  promissory  notes  or 
bills  of  exchange,  if  it  be  shown  that  they 
were  stolen,  or  otherwise  fraudulently  put 
in  circulation,  the  burden  of  proof  is  on  the 
holder  to  show  that  he  took  them  in  good 
faith.  Monroe -y.  Cooper,  5  Pick.  (Mass.) 
412  ;  Worcester  Co.  Bank  v.  Dorchester, 
&c.  Bank,  10  Gush.  (Mass.)  488,  491  ; 
Wyer  v,  Dorchester,  &c.  Bank,  11  Id. 
52  ;  Bissell  v.  Morgan,  Id.  198  ;  Fabens 
V.  Tin-ill,  15  Law  Rep.  (May,  1852)  44  ; 
Perrin  v.  Noyes,  39  Me.  384  ;  Goodman 
V.  Harvey,  4  Ad.  &  El.  870  ;  Aibouin  v. 
Anderson,  1  Q.  B.  504.  According  to 
recent  decisions,  that  burden  is  very  light. 
Worcester  Co.  Bank  v.  Dorchester,  &c. 
Bank  ;  Wyer  ?'.  Dorchester,  &c.  Bank, 
iibi  supra.  But  where  the  action  is  by  the 
holder  of  a  bank-bill,  and  the  defendant 
proves  it  to  have  been  stolen,  the  plaintiff 
is  not  bound  to  show  how  he  came  by  the 
bill,  to  enable  him  to  recover  upon  it,  but 
the  defendant,  to  defeat  the  plaintifi's 
right  to  recover  upon  it,  must  show  that 
he  received  it  under  such  circumstances  as 
to  prevent  the  maintenance  of  this  action. 
Wyer  v.  Dorchester,  &c.  Bank,  ubi  supra  ; 
Solomons  v.  Bank  of  England,  13  East, 
135,  n.  ;  De  la  Chaumette  v.  Bank  of 
England,  2  B.  &  Ad.  385.  And  see 
post,  vol.  ii.  §  172.  When  goods  are  ob- 
tained from  their  owner  by  fraud,  the 
burden  of  proof  is  upon  one  who  claims 
under  the  fraudulent  purchaser  to  show 
that  he  is  a  bona  fide  purcliaser  for  value. 
Haskins  v.  Warren,  115  Mass.  514. 


126  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER  IV. 

OF   THE   BEST   EVIDENCE. 

§  82.  Best  evidence  required.  A  fourth  rule,  which  governs 
in  the  production  of  evidence  is  that  which  requires  the  best  evi- 
dence of  which  the  case  in  its  nature  is  susceptible.  This  rule  does 
not  demand  the  greatest  amount  of  evidence  which  can  possibly 
be  given  of  any  fact ;  but  its  design  is  to  prevent  the  introduction 
of  any  which,  from  the  nature  of  the  case,  supposes  that  better 
evidence  is  in  the  possession  of  the  party.  It  is  adopted  for  the 
prevention  of  fraud ;  for  when  it  is  apparent  that  better  evidence 
is  withheld,  it  is  fair  to  presume  that  the  party  had  some  sin- 
ister motive  for  not  producing  it,  and  that,  if  offered,  his  design 
would  be  frustrated.  1  The  rule  thus  becomes  essential  to  the 
pure  administration  of  justice.  In  requiring  the  production  of 
the  best  evidence  applicable  to  each  particular  fact,  it  is  meant 
that  no  evidence  shall  be  received  which  is  merely  substitutionary 
in  its  nature,  so  long  as  the  original  evidence  can  be  had.  The 
rule  excludes  only  that  evidence  which  itself  indicates  the  exist- 
ence of  more  original  sources  of  information,  (a)    But  where  there 

1  "  Falsi  presumptio  est  contra  eum,  qui  testibus  probare  conatur  id  quod  instru- 
meutis  probare  potest."     Menoch.  Coiisil.  422,  n.  125. 

{a)  Putnam    v.    Goodall,     11    Foster  It  is  now  established  law  that  when 

(N.  H.),  419  ;  Shoenberger  v.  Hackman,  the  accuracy  of  a  photograph  as  a  faithful 

37  Pa.  St.  87.  representation  of  the  actual  scene  which 

On  this  principle  press  copies  of  letters  it  is  introduced  in  evidence  to  prove,  is 
or  other  documents  are  not  primary  evi-  settled  by  competent  testimony,  the  photo- 
dence  of  the  contents  of  the  letters,  graph  is  admissible  evidence  as  an  ap- 
Marsh  v.  Hand,  35  Md.  123  ;  King  v.  propriate  aid  to  the  jury  in  applynig  the 
Worthington,  73  111.  161 ;  Watkins  v.  evidence  in  the  same  manner  as  drawings, 
Paine,  57  Ga.  50,  but  are  secondary  evi-  diagrams,  maps,  and  other  methods  of 
dence,  admissible  on  proof  of  the  loss  or  bringing  before  the  eye  of  the  jury  a  rep- 
destruction  of  the  original.  Goodrich  v.  resentation  of  the  scenes  in  which  the 
Weston,  102  Mass.  362  ;  Smith  v.  Brown,  facts  they  are  called  to  pass  upon  took 
151  Mass.  339.  A  duplicate  notarial  place.  The  value  of  the  representation 
instrument,  made  from  the  copy  in  the  given  by  the  photograph  depends  upon 
records  of  the  notarv,  is  primary  evidence,  its  accuracy  as  testified  to  by  witnesses. 
Geralopulo  v.  Wieler,  10  C.  B.  712.  The  party  introducing  the  photograph  must 
When  a  broker  makes  a  sale,  it  seems  that  adduce  evidence  of  the  person  who  took 
either  the  entry  in  his  books  or  the  bought  the  jihotograph,  or  some  other  person  who 
and  sold  notes  which  he  issues  are  primary  has  knowledge  of  the  facts,  to  the  effect 
evidence  of  the  sale.  Sievewright  v.  Ar-  that  the  photograph  does  represent  the 
chibald,  17  Q.  B.  115  ;  Durrell  v.  Evans,  objects  which  it  i)uri)orts  to  represent. 
1  H.  &C.  175.  This  testimony  of  these  witnesses  may,  of 


CHAP.    IV.]  THE    BEST    EVIDENX'E.  127 

is  110  substitution  of  evidence,  but  only  a  selection  of  weaker,  in- 
stead of  stronger  proofs,  or  an  omission  to  supply  all  the  proofs 
capable  of  being-  produced,  the  rule  is  not  infringed. 2(6)  Thus, 
a  title  by  deed  must  be  proved  by  the  production  of  the  deed  it- 
self, if  it  is  within  the  power  of  the  party;  for  this  is  the  best 
evidence  of  which  the  case  is  susceptible;  and  its  non-production 
would  raise  a  presumption  that  it  contained  some  matter  of  ap- 
parent defeasance.  But,  being  produced,  the  execution  of  the 
deed  itself  may  be  proved  by  only  one  of  the  subscribing  wit- 
nesses, though  the  other  also  is  at  hand.  And  even  the  previous 
examination  of  a  deceased  subscribing  witness,  if  admissible  on 
other  grounds,  may  supersede  the  necessity  of  calling  the  sur- 
vivor.^ So,  in  proof  or  disproof  of  handwriting,  it  is  not  neces- 
sary to  call  the  supposed  writer  himself.*  (c)  And  even  where  it 
is  necessary  to  prove  negatively  that  an  act  was  done  without  the 
consent,  or  against  the  will  of  another,  it  is  not,  in  general, 
necessary  to  call  the  person  whose  will  or  consent  is  denied.^ 
§  83.  Exceptions.     All  rules  of  evidence,  however,  are  adopted 

2  Phil.  &  Am.  on  Evid.  43S  ;  1  Phil.  Evid.  418  ;  1  Stark.  Evid.  437  ;  Glassford  on 
Evid.  266-278;  Tayloe  v.  Ri<,'gs,  1  Peters,  591,  596;  United  States  v.  Reyburn,  6 
Peters,  352,  367  ;  Minor  v.  Tillotson,  7  Peters,  100,  101. 

3  Wriglit  V.  Tathara,  1  Ad.  &  El.  3. 

«  Hughes  Case,  2  East,  P.  C.  1002  ;  MeGuire's  Case,  lb.  ;  Rex  v.  Benson,  2 
Campb.  508. 

6  Supra,  §  77  ;  Rex  v.  Hazy  &  Collins,  2  C.  &  P.  458. 

course,  be  attacked  by  the  testimony  intro-  {h)  Richardson  v.  Milburn,  17  Md.  67  : 

duced  by  the  opposite  side,  to  the  eti'ect  McCreary  v.   Turk,  29   Ala.  244.     Thus, 

that   the  photograph    does   not   correctly  if  the  accused   in  a  criminal  case  does  not 

represent  the  scenes,  which  it  purports  to  testify,  this  fact  does  not    exclude    other 

represent  ;     but   the   competency   of    the  evidence  as  to  the  criminal  act.     People 

photograph   as   evidence   depends   simply  v.  Anderson,  39  Cal.   703.     So   the  home 

upon  sufficient  testimony  being  given   in  port   of  a  vessel    may  be    proved    by  the 

the   opinion  of  the  court  to  show  prima  words  painted  on  her  stern,  although  the 

facie  that  the  picture  is  a  representation  enrolment  and  register  might  also  be  used 

of  the  objects   which  it  is  introduced  in  to    prove   this   fact.     Stearns   v.   Doe,    12 

evidence  as  representing.      Archer  v.    N.  Gray  (Mass.),  482.    So  it  has  been  several 

Y.    N.     H.    &   Hartford  R.  R.    Co.,   106  times   held   in    cases   where    intoxicating 

N.  Y.    603  ;   Verran  v.   B.iird,   150  Mass.  liquor  has  been  seized   in  the  act  of  sale, 

142  ;    People  v.    Buddensieck,  103   N.  Y.  in  tumblers  or  glasses  or  bottles,  it  is  not 

500;  Cowley  v.    People,  83   N.  Y.    464;  necessary  to  produce  the  liquor  in  court, 

Cozzens  v.  Higgins,    1    Abb.  Ct.   of  App.  but  the  person  who  seized  it  may  testify 

(X.  Y. )  Dec.  451  ;  Durst  v.   Masters,    L.  as  to  its  character.     The  rule  does  not  re- 

R.  10  Prob.  Div.  373,  378.     On  the  other  quire  the  presence  in  court  of  every  mov- 

hand  the  photograph,  though  an  accurate  able  article  which  is  relevant  to  the  issue 

representation  of  the  scene,  may  not  be  ad-  of  the  case,  but  allows  witness  to  testify 

missible   because    the  scene   itself  is  not  thereto  except  when  the  evidence  offered 

sliown  to  be  relevant.     This  must  be  de-  necessaiily  shows  that  other  evidence  of  a 

termined  by  the  presiding  judge  upon  all  higher  nature  exists,  ?'.  e.  in  the  case  of 

the  circumstances,  just  as  when  sales  of  written  instruments.     Com.  f.  Welch,  142 

neighboring  land  are  offered  as  evidence  of  Mass.  473  ;  Com.   v.  Blood,  11  Gray,  74  ; 

value,  and  in  many  other  instances.     Ver-  Com.  v.  Pope,  103  Mass.  440. 
ran  v.  Baird,  supra.  (c)  See  infra,  §§  569,  575. 


128  LAW    OF    EVIDENCE.  [PART   TI. 

for  practical  purposes  in  the  administration  of  justice ;  and  must 
be  so  applied  as  to  promote  the  ends  for  which  they  were  de- 
signed, (d)  Thus,  the  rule  under  consideration  is  subject  to 
exceptions,  where  the  general  convenience  requires  it.  Proof,  for 
example,  that  an  individual  has  acted  notoriously  as  a  public 
officer,  is  prima  facie  evidence  of  his  official  character,  without 
producing  his  commission  or  appointment.^ 

§  84.    Primary    and    secondary    evidence.        This    rule    naturally 

leads  to  the  division  of  evidence  into  Primary  and  Secondary. 
Primary  evidence  is  that  which  we  have  just  mentioned  as  the 
best  evidence,  or  that  kind  of  proof  which,  under  any  possible 
circumstances,  affords  the  greatest  certainty  of  the  fact  in  ques- 
tion: and  it  is  illustrated  by  the  case  of  a  written  document;  the 
instrument  itself  being  always  regarded  as  the  primary  or  best 
possible  evidence  of  its  existence  and  contents,  {a)  If  the  execu- 
tion of  an  instrument  is  to  be  proved,  the  primary  evidence  is  the 
testimony  of  the  sul)scribing  witness,  if  there  be  one.  Until  it 
is  shown  that  the  production  of  the  primary  evidence  is  out  of  the 
party's  power,  {h)  no  other  proof  of  the  fact  is  in  general  ad- 

'-  United  States  v.  Reyburn,  6  Peters,  352,  367  ;  Rex  v.  Gordon,  2  Leach,  Cr.  C. 
581,  585,  586  ;  Kex  v.  Shelley,  1  Id.  381,  n.  ;  Jacob  v.  United  States,  1  Brockenb. 
520  ;  Milnor  v.  Tillotson,  7  Peters,  100,  101  ;  Berrynian  v.  AVise,  4  T.  R.  366  ;  Bank 
of  United  States  v.  Dandrid^e,  12  Wheat.  70;  Doe  v.  P.rawii,  5  B.  &  A.  243  ;  Cannell 
V.  Curtis,  2  Bing.  N.  C.  228,  234  ;  Rex  v.  Veielst,  3  Campb.  432  ;  Rex  v.  Howard,  1 
M.  &  Rob.  187  i  McGahey  v.  Alston,  2  M.  &  W.  206,  211  ;  Regina  v.  Vickery,  12 
Q.  B.  478  ;  infra,  §  92.  But  there  must  be  some  color  of  right  to  the  ofhce,  or  an 
acquiescence  on  the  part  of  the  public  for  such  length  of  time  as  will  authorize  the 
presumption  of  at  least  a  colorable  election  or  ai)])ointment.  "Wilcox  v.  Smith,  5  Wend. 
231,  234.  This  rule  is  applied  only  to  public  offices.  Where  the  office  is  private, 
some  proof  must  be  offered  of  its  existence,  and  of  the  appointment  of  the  agent  or  in- 
cumbent.    Short  V.  Lee,  2  Jac.  &  W.  464,  468. 

(d)  See  infra,  §  343.  its  contents,  just  as  in  all  cases  under  this 

(«)  Cf.    Stejihen,    Dig.   Evid.   art.    64.  rule,  and  secondaiy  evidence  will   not  be 

When  a  document  is  executed  in  several  admitted  till  a  foundation  is  laid  for  it. 

parts,  each  part  is  primary  evidence  of  the  McReynolds    v.     Lougenberger,     57     Pa. 

document.     Gardner  v.  Eberhart,  82   111.  St.   13. 

316  ;  Brown  v.  Woodman,  6  C  &  P.  206  ;  (h)  The  judge  is  to  decide  as  to  the  suf- 

Colling  V.  Tremeck,  6  B.  &  C.  398  ;  Cleve-  ficiency  of  the  proof  that  the  original  docu- 

land,  &c.   R.  R.  Co.  v.   Perkins,  17  Mich,  ment  is  lost,  or  otherwise  out  of  the  power 

296;  Hubbard  r.  Russell,  24  Barb.  (N.  Y.)  of  the  party  offering  the  secondary  evi- 

404  ;  State  v.  Gurnee,  14  Kan.  Ill;  Dyer  dence.     Smith  v.    Brown,  151   Mass.  339  ; 

V.  Fredericks,  63  Me.  173,  592.     Where  a  Walker  v.  Curtis,  116  Mass.  98  ;    Lindauer 

document  is  executed  in  counterpart,  each  v.  Meyberg,   27^  Mo.   App.  185  ;  Stratton 

counterpart  is  primary  evidence  as  against  r.  Hawks,  43  Kans.  541. 
the    party   executing"  it.     Stephen,    Dig.  This  rule  of  evidence  does  not  require 

Evid.  art.  64  ;  Roe  v.  Davis,  7  East,  362  ;  proof  of  the  loss  of  the  pjrimary  evidence 

Houghton  V.  Koenig,  18  C.  B.  235  ;  Mann  beyond  possibility  of  mistake,  but  only  to 

V.  Godbold,  3  Bing.  292.     See  post,  §  91.  a  moral  certainty.     Mr.  Justice  Campbell 

When  a  writing  is  thirty  years  old,  its  in  United  States  v.  Sutter,  21  How.  (U.S.) 

Piilhenticitii  is  proved  by  the  production  170,  175.     If  by    "moral    certainty"    is 

from  the  pVoper  custody  (see  post,  §  142),  meant,  as  in  criminal  cases,  "  beyond  rea- 

but  the  paper  itself  is  the  jtroper  jiroof  of  sonable   doubt,"  this  case  is   more  strict 


CHAP.   IV.]  THE  BEST  EVIDENCE.  129 

mitted.^  All  evidence  falling  short  of  this  in  its  degree  is  termed 
secondary.  The  question,  whether  evidence  is  primary  or  sec- 
ondary, has  reference  to  the  nature  of  the  case  in  the  abstract, 
and  not  to  the  peculiar  circumstances  under  which  the  party  in 
the  particular  cause  on  trial  may  be  placed.  It  is  a  distinction 
of  law,  and  not  of  fact:  referring  only  to  the  quality,  and  not  to 
the  strength  of  the  proof.  Evidence  which  carries  on  its  face  no 
indication  that  better  remains  behind  is  not  secondary,  but  pri- 
mary. And  though  all  information  must  be  traced  to  its  source, 
if  possible,  yet  if  there  are  several  distinct  sources  of  information 
of  the  same  fact,  it  is  not  ordinarily  necessary  to  show  that  they 
have  all  been  exhausted,  before  secondary  evidence  can  be  re- 
sorted to.  2(6') 

1  Sebree  v.  Dorr,  9  Wheat.  553,  563  ;  Hart  v.  Yunt,  1  Watts,   253  ;  Nichols  v. 
Howe,  43  Minn.  181. 

2  Cutbuah  y.  Gilbert,  4  S.  &  R.  555  ;  United  States  i'.  Gibert,  2  Sumn.  19,  80,  81; 
Phil.  &  Am.  on  Evid.  440,  441  ;  1  Phil.  Evid.  421.  Whether  the  law  recognizes  any 
degrees  in  tlie  various  kinds  of  secondary  evidence,  and  requires  the  i)arty  offeiing  that 
which  is  deemed  less  certain  and  satisfactory  lirst  to  show  that  nothing  better  is  in  his 
power,  is  a  question  which  is  not  yet  perfectly  settled.  On  the  one  hand,  the  affirma- 
tive is  urged  as  an  equitable  extension  of  the  principle  which  postpones  all  secondary 
evidence,  until  the  absence  of  the  primary  is  accounted  for  ;  and  it  is  said  that  the  same 
reason  wliich  re(iuires  the  production  of  a  writing,  if  within  the  power  of  a  party,  also 
requires  that,  if  the  wiiting  is  lost,  its  contents  shall  be  proved  by  a  copy,  if  in  exis- 
tence, rather  than  by  the  memory  of  a  witness  who  has  read  it  ;  and  that  the  secondary 
proof  of  a  lost  deed  ought  to  be  marshalled  into,  first,  the.  counterpart  ;  secondly,  a 
copy  ;  thirdly,  the  abstract,  &c.  ;  and,  last  of  all,  tlie  memory  of  a  witness.  Ludlam, 
ex  (km.  Hun't,  Lotft,  362.  On  the  other  hand,  it  is  said  that  this  argument  for  the 
extension  of  tlie  rule  confounds  all  distinction  between  the  weight  of  evidence  and  its 
legal  admissibility;  that  the  rule  is  founded  upon  the  nature  of  the  evidence  offered, 
and  not  u[)on  its  strength  or  weakness  ;  and  that  to  carry  it  to  the  length  of  establishing 
degrees  in  secondary  evidence,  as  fixed  rules  of  law,  would  often  tend  to  the  subversion 
of  justice,  and  always  be  productive  of  inconvenience.  If,  for  example,  proof  of  the 
existence  of  an  abstract  of  a  deed  will  exclude  oral  evidence  of  its  contents,  this  proof 
may  be  withheld  by  the  adverse  party  until  the  moment  of  trial,  and  the  other  side  be 
defeated,  or  the  cause  be  greatly  delayed  ;  and  the  same  mischief  may  be  repeated, 
through  all  the  dilferent  degrees  of  the  evidence.  It  is  therefore  insisted,  that  the  rule 
of  exclusion  ought  to  be  restricted  to  such  evidence  only,  as,  upon  its  face,  discloses  the 
existence  of  better  proof ;  and  tliat,  where  the  evidence  is  not  of  this  nature,  it  is  to  be 
received,  notwithstanding  it  may  be  shown  from  other  sources  that  the  party  might 
have  offered  that  which  was  more  satisfactory  ;  leaving  the  weight  of  the  evidence  to  be 
judged  of  by  the  jury,  under  all  the  circumstances  of  the  case.  See  4  Monthly  Law 
Mag.  265-279.  Among  the  cases  cited  in  support  of  the  affirmative  side  of  the  ques- 
tion, there  is  no  one  in  which  this  particular  point  appears  to  have  been  ex])ressly 
adjudged,  though  in  several  of  them  —  as  in  Sir  E.  Seymour's  Case,  10  Mod.  8  ;  Villiers 
V.  Villiers,  2  Atk.  71  ;  Rowlandson  v.  Wainwright,  1  Nev.  &  Per.  8  ;  and  others  —  it 
has  been  passingly  adverted  to  as  a  familiar  doctrine  of  the  law.  On  the  other  hand, 
the  existence  of  any  degrees  in  secondary  evidence  was  doubted  by  Patterson,  J.,  in 

than  the  general  current  of  the  authorities.  326  ;  Carr  v.  Miner,  42  111.  179.     See  also 

Reasonable  proof,  stronger  or  weaker,  ac-  'post,  §  558. 

cording  to  the  circumstances,  seems  to  be  (c)  For  cases  where  secondary  evidence 

all  that  is  required.      Bouldin  v.  Massie,  7  of  the  contents  of  documents  is  admissi- 

Wheat.  (U.  S.)  122;  Minor  v.  Tillotson,  ble,  see  post,   §§   91-93,   558  558  u.   {a), 

7   Pet.    (U.  S.)   99  ;  Wing  v.   Abbott,  28  560-562. 
Me.  367  ;  Waller  v.  School  Dist.,  22  Conn. 
VOL.    I.  —  9 


130 


LAW   OP   EVIDENCE. 


[part   II. 


§  85.    Substitution  of  oral  for  written  evidence.      The  cases  which 
most  frequently  call  fur  the  application  of  the  rule  now  under 

Rowlandson  v.  Waiiiwiij^ht ;  tacitly  denied  by  the  same  judge,  iu  Coyle  i'.  Cole,  6  C. 
&  P.  359,  and  l>y  Parke,  J.,  in  Rex  v.  Fursey,  Id.  81  ;  and  by  the  court,  in  Ilex  v. 
Hunt,  3  B.  &  Aid.  416  ;  and  expressly  denied  by  Parke,  J.,  in  Brown  v.  Woodman,  6 
C.  &  P.  206.  See  also  Hall  v.  Ball,  3  Scott,  N.  R.  577.  And  in  the  more  recent  ca.se 
of  Doe  d.  Gilbert  v.  Ko.ss,  in  the  Exchequer,  where  proper  notice  to  ])roduce  an  original 
document  had  been  given  without  success,  it  was  held  that  the  party  giving  the  notice 
was  not  afterwards  restricted  as  to  the  nature  of  the  secondary  evidence  he  would  pro- 
duce of  the  contents  of  tiie  document ;  and,  therefore,  having  offered  an  attested  copy 
of  the  deed  in  that  case,  which  was  inadmissible  in  itself  for  want  of  a  stamp,  it  was  held 
that  it  was  competent  for  him  to  abandon  that  mode  of  proof,  and  to  resort  to  parol  tes- 
timony, there  being  no  degrees  in  secondary  evidence  ;  for  when  once  the  original  is 
accounted  for,  any  secondary  evidence  whatever  may  be  resorted  to  by  the  jorty  seeking 
to  use  the  same.  See  Doe  v.  Ross,  8  Dowl.  389  ;  s.  c.  7  M.  &  W.  102  ;  Doe  v.  Jack, 
1  Allen,  476,  483.  The  American  doctrine,  as  deduced  from  various  authorities,  seems 
to  be  this,  —  that  if,  from  the  nature  of  the  case  itself,  it  is  manifest  that  a  more  satis- 
factory kind  of  secondary  evidence  exists,  the  party  will  be  required  to  produce  it  ;  but 
that,  wkere  the  nature  of  the  case  does  not  of  itself  disclose  the  existence  of  such  better 
evidence,  the  objector  must  not  only  prove  its  existence,  but  also  must  ]irove  that  it 
was  known  to  the  other  party  in  season  to  have  been  produced  at  the  trial,  (c/)  Thus, 
where  the  record  of  a  conviction  was  destroyed,  oral  proof  of  its  existence  was  rejected, 
because  the  law  required  a  transcript  to  be  sent  to  the  Court  of  E.xchequer,  which  was 
better  evidence.  Hilts  i;.  Colvin,  14  Johns.  182.  So,  a  grant  of  letters  of  administra- 
tion was  presumed  after  proof,  from  the  records  of  various  courts,  of  the  administrator's 
recognition  there,  and  his  acts  in  that  capacity.  Battles  v.  Holley,  6  Greenl.  145.  And 
where  the  record  books  were  burnt  and  mutilated,  or  lost,  the  clerk's  docket  and  the 
journals  of  the  judges  have  been  deemed  the  next  best  evidence  of  the  contents  of  the 


(d)  The  rule  is  different  in  different 
States.  The  Ma.ssachusetts  rule  is  stated 
by  Wells,  J.  in  Goodrich  v.  Weston,  102 
Mass.  362,  as  follows  :  "  When  the  source 
of  original  evidence  is  exhausted,  and  re- 
sort is  properly  had  to  secondary  proof, 
the  contents  of  private  writings  may  be 
proved  like  any  other  fact  by  indirect  evi- 
dence. The  admissibility  of  evidence  of- 
fered for  this  purpose  must  dejiend  upon 
its  legitimate  tendency  to  prove  the  facts 
sought  to  be  proved,  and  not  upon  the 
comparative  weight  or  value  of  one  or  an- 
other form  of  proof.  The  jury  will  judge 
of  its  weight  and  may  give  due  considera- 
tion to  the  fact  that  a  more  satisfactory  one 
exists  and  is  withheld,  or  not  produced, 
when  it  might  readily  have  been  obtained. 
But  there  are  no  degrees  of  legal  distinc- 
tion in  this  class  of  evidence.  Although 
there  has  been  much  diversity  of  practice 
and  the  decisions  are  far  from  uniform, 
more  frequently  turning  upon  special  cir- 
cumstances and  fa('ts  than  upon  a  general 
principle,  the  tendency  of  authority  is,  as 
we  think,  towards  the  establishment  of  the 
rule  here  stated."  The  rule  as  given  by 
the  Engli.sh  courts  is  held  the  true  one  in 
the  following  States  as  well  as  iu  Massa- 
chusetts, —  Indiana  :  Carpenter  v.  Dame, 
10  Ind.  129  ;  New  York:  Robertson  v. 
Lynch,  18  Johns.  451 ;  New  Jersey : 
Ketcbam  v.   Brooks,   27  N.   J.  Eq.   347. 


And  in  the  following,  the  rule  given  by 
Mr.  Greenleaf,  called  the  Ameiican  rule, 
is  adopted,  —  Alabama  :  Harvey  v.  Thorpe, 
28  Ala.  250  ;  Georgia  :  Graham  v.  Camp- 
bell, 56  Ga.  258  ;  Williams  v.  Waters,  36 
Id.  454  ;  Illinois  :  Illinois,  &c.  Company 
V.  Bonner,  75  111.  315  ;  Maine  :  Nason  v. 
Jordon,  62  Me.  480  ;  Pennsylvania :  Ste- 
venson V.  Hoy,  43  Pa.  St.  191  ;  and  in 
the  United  States  Supreme  Court  :  Comet 
V.  "Williams,  20  Wall.  (U.  S. )  226.  Cf. 
Winn  V.  Patterson,  9  Peters,  663. 

As  to  what  is  secondary  evidence,  it 
has  been  held  that  the  previous  talk  of  the 
parties  as  to  what  they  pioposed  to  agi-e« 
to  in  the  writing  to  be  drawn  uj*  is  not 
even  secondary  evidence  of  the  contents  of 
the  paper.  Richardson  v.  Robbins,  124 
Mass.  105.  Nor  is  the  opinion  of  a  witness 
as  to  the  effect  of  the  language  of  the  paper, 
the  language  not  being  given.  Elwell  v. 
Walker,  52  Iowa,  256.  A  photograph  of 
a  written  instrument,  identified  by  the 
photographer,  is  good  secondary  evidence 
of  the  contents.  Eborn  v.  Zimpelman,  47 
Tex.  503.  The  introduction  of  weaker 
secondary  evidence  when  better  might  be 
had  may  give  a  rise  to  unfavorable  infer- 
ences in  the  minds  of  the  jury.  Goodrich 
V.  Weston,  102  Mass.  362  ;  Bailey  v.  Mc- 
Meckle,  9  Cal.  430  ;  Schoenberger  v. 
Hackman,  37  Pa.  St.  887. 


CHAP.    IV.]  THE    BEST   EVIDENCE.  131 

consideration,  arc  those  which  relate  to  the  substitution  of  oral 
for  written  evidence;  and  they  may  be  arranged  into  three  chisses  : 
including  in  the  first  class  those  instruments  which  the  law  re- 
quires should  be  in  writing;  in  the  second,  those  contracts  which 
the  parties  have  put  in  writing;  and  in  the  third,  all  other  writ- 
ings, the  existence  of  which  is  disputed,  and  which  are  material 
to  the  issue. 

§  86.  Where  the  law  requires  written  evidence.  In  the  first 
place,  oral  evidence  cannot  be  substituted  for  any  instrument 
ivhich  the  law  requires  to  be  in  writing;  such  as  records,  public 
documents,  official  examinations,  deeds  of  conveyance  of  lands, 
wills  other  than  nuncupative,  promises  to  pay  the  debt  of  an- 
other, and  other  writings  mentioned  in  the  Statute  of  Frauds. 
In  all  these  cases,  the  law  having  required  that  the  evidence  of 
the  transaction  should  be  in  writing,  no  other  proof  can  be  sub- 
stituted for  that,  as  long  as  the  writing  exists,  and  is  in  the  power 

record.  Cook  v.  Wood,  1  MeCord,  139  ;  Lyons  v.  Gregory,  3  Hen.  &  Muiif.  237  ; 
Lowry  v.  Cady,  4  Vermont,  504  ;  Doe  o.  Greenlee,  3  Hawks,  281.  In  all  these  and 
the  like  cases,  the  nature  of  the  fact  to  be  proved  plainly  discloses  the  existence  of  some 
evidence  in  writing,  of  an  official  character,  more  satisfactory  than  mere  oral  proof;  and 
therefore  the  production  of  such  evidence  is  demanded.  Such  also  is  the  view  taken  by 
Ch.  B.  Gilbert.  See  Gilb.  Evid.  by  Lofft,  p.  5.  See  also  Collins  v.  Maule,  8  C.  &  P. 
502;  Everinghaui  v.  l\oundell,  2  M.  &  Rob.  138;  Harvey  v.  Thomas,  10  Watts,  63. 
But  where  there  is  no  ground  for  legal  presumption  that  better  secondary  evidence  ex- 
ists, any  proof  is  received  which  is  not  inadmissible  by  other  rules  of  law  ;  unless  the 
objecting  party  can  show  that  better  evidence  was  previously  known  to  the  other,  and 
might  have  been  jjroduced  ;  thus  subjecting  hiin,  by  ])ositive  proof,  to  the  same  imputa- 
tion of  fraud  which  the  law  itself  presumes  when  primary  evidence  is  withheld.  Thus, 
w'here  a  notarial  copy  was  called  for,  as  the  best  evidence  of  the  contents  of  a  lost 
note,  the  court  held,  that  it  was  sufficient  for  the  party  to  prove  the  note  by  the  best  evi- 
dence actually  in  his  power  ;  and  that  to  require  a  notarial  coj)y  would  be  to  demand 
that  of  the  existence  of  which  there  was  no  evidence,  and  which  the  law  would  not 
presume  was  in  the  power  of  the  party,  it  not  being  necessary  that  a  promissory  note 
should  be  protested.  Renner  v.  Bank  of  Columbia,  9  Wheat.  582,  587  ;  Den  v. 
McAllister,  2  Halst.  46,  53  ;  United  States  i'.  Britton,  2  Mason,  464,  468.  But  where 
it  was  proved  that  a  copy  existeel  of  a  note,  he  was  held  bound  to  prove  it  by  the  copy. 
2  Mason,  468.  But  if  the  party  has  voluntarily  destroyed  the  instrument,  he  is  not 
allowed  to  prove  its  contents  by  secondary  evidence,  until  he  has  repelled  every  infer- 
ence of  a  fraudulent  design  in  its  destruction.  Blade  v.  Noland,  12  Wend.  173.(e) 
Where  the  subscribing  witness  to  a  deed  is  deail,  and  his  handwriting  cannot  be  proved, 
the  next  best  evidence  is  proof  of  the  handwriting  of  the  grantor,  and  this  is  therefore 
required.  Clarke  v.  Courtney,  5  Peters,  319.  But  in  New  York,  proof  of  the  handwrit- 
ing of  the  witness  himself  is  next  demanded.  Jackson  v.  Waldron,  13  Wend.  178. 
See  infra,  §  575.  But  where  a  deed  was  lost,  the  party  claiming  under  it  was  not  held 
bound  to  call  the  subscribing  witnesses,  unless  it  could  be  shown  that  he  previously  knew 
who  they  were.  Jackson  v.  Vail,  7  Wend.  125.  So  it  was  ruled  by  Lord  Kenyon,  in 
Keeling  v.  Ball,  Peake's  Evid.  App.  Ixxviii.  In  Gillies  v.  Smithers,  2  Stark.  528,  this 
point  does  not  seem  to  have  been  considered  ;  but  the  case  turned  on  the  state  of  the 
fileadings,  and  the  want  of  any  proof  whatever  that  the  bond  in  question  was  ever 
executed  by  the  intestate. 

(e)  Count  Joannes  v.  Bennett,  5  Allen  46  ;  Blake  v.  Fash,  44  111.  302  ;  Rudoljih 
(Mass.),  169  ;  Pollock  v.  Wilcox,  68  N.  C.     v.  Lane,  57  Ind.  115.     See  also  ante,  §  37. 


132 


LAW   OF   EVIDENCE. 


[part  II. 


of  the  party,  (a)  And  where  oaths  arc  required  to  be  taken  in 
open  court,  where  a  record  of  the  oath  is  made,  or  before  a  par- 
ticular officer,  whose  duty  it  is  to  certify  it;  (6)  or  where  an  ap- 
pointment to  an  additional  office  is  required  to  be  made  and 
certilied  on  the  back  of  the  party's  former  commission,  —  the 
written  evidence  must  be  produced.^  (c)  Even  the  admission  of 
the  fact  by  a  Jjarty,  unless  solemnly  made,  as  a  substitute  for 
other  proof,^((7)  does  not  supersede  direct  proof  of  matter  of 
record  by  which  it  is  sought  to  affect  him;  for  the  record,  being 
produced,  may  be  found  irregular  and  void,  and  the  party  might 
be  mistaken.-^  Where,  however,  the  record  or  document  ap- 
pointed by  law  is  not  part  of  the  fact  to  be  proved,  but  is  merely 
a  collateral  or  subsequent  memorial  of  the  fact,  such  as  the  reg- 


1  Rex  V.  Hube,  Peake's  Cas.  132  ;  Bassett  v.  Marshall,  9  Mass.  312  ;  Tripp  v.  Garey, 
7  Greeul.  266  ;  2  Staik.  Evicl.  570,  571 ;  Dole  v.  Allen,  4  Greenl.  527. 

2  See  supra,  §  27  :  infra,  §§  169,  170,  186,  204,  205. 

3  Scott  V.  Clare,  3  Caiiipb.  236  ;  Jenner  i-.  Joliffe,  6  Johns.  9 ;  Wellaud  Canal  Co. 
V.  Hathaway,  8  Wend.  480  ;  1  Leach,  Cr.  C.  349 ;  2  Id.  625,  635. 


•(«)  People  V.  Reinhart,  39  Cal.  449  ; 
Poorman  v.  Miller,  44  Id.  269  ;  Hackett  v. 
King,  6  Allen  (Mass.),  58  ;  Fleming  v. 
Clark,  12  Id.  191  ;  Com.  i'.  Quin,  5  Gray 
(Mass.),  478  ;  Camden,  &c.  R.  R.  Co.  v. 
Stewart,  4  Green  (N.  J.),  343  ;  Rathbun  v. 
Ross,  46  Barb.  (N.  Y.)  127  ;  Mandeville 
V.  Reynolds,  68  N.  Y.  528  ;  Enders  v. 
Sternberg,  2  Abb.  (N.  Y. )  App.  Dec.  31. 
A  ruling  of  court  must  be  proved  by  the 
record.  Fleming  v.  Clark,  supra.  When 
a  statute  j»rovides  for  certain  records  of 
the  election  of  officers,  a  certified  cojiy  is 
the  proper  evidence  of  the  election.  Boree 
T.  McLean,  24  Wis.  225.  The  desertion 
of  a  soldier  must  be  proved  by  the  record 
of  the  court  martial  (Terrill  v.  Colebrook, 
35  Conn.  188)  ;  the  removal  of  an  admin-, 
istrator  by  the  record  of  the  probate  court. 
Steele  v.  Steele,  89  111.  51.  But  if  the 
proceedings  and  decree  of  the  court  have 
been  lost  or  destroyed,  the  execution  and 
loss  of  the  record  may  be  shown,  and  sec- 
ondary evidence  given  to  establish  its  con- 
tents. Even  if  statutory  provisions  exist 
whereby  a  lost  record  can  be  supplied  by 
proceedings  in  ei]uity,  although,  doubtless, 
the  better  practice  would  be  to  have  the 
record  restored  before  the  trial  where  there 
is  opportunity  to  pursue  it,  yet  this  course 
is  not  compulsory  and,  after  proof  of  the 
loss,  it-  contents  may  be  proved,  like  any 
other  document,  by  any  secondary  evi- 
dence, where  the  case  does  not  from  its  na- 
ture disclose  the  existence  of  other  and 


better  evidence.  Richard's  App.,  122  Pa. 
St.  548  ;  Miltimore  v.  Miltimore,  40  Pa. 
St.  151.  In  Miltimore  v.  Miltimore,  su/>ra, 
Mr.  Justice  Thompson,  delivering  the  opin- 
ion of  the  court,  says  :  "The  existence  of 
the  power  in  the  court  to  supply  lost  rec- 
ords does  not  interfere  with  the  rule  of 
evidence  which  admits  proof  of  contents. 
The  loss  may  not  be  discovered  until  the 
trial  is  jlrogressing.  There  would  be  no 
time  then  to  file  a  bill  on  the  chancery  side 
of  the  court,  to  perpetuate  the  proof  neces- 
sary for  the  foundation  from  which  to  sup- 
ply the  record  ;  and  it  might  be  disastrous 
to  one  or  other  of  the  parties  to  delay  the 
cause  for  such  a  purpose."  But  to  author- 
ize mcmoriter  proof  of  a  lost  document  or 
record,  the  witness  must  have  read  it,  or 
otherwise  have  actual  knowledge  of  it,  and 
be  able  to  speak  at  least  to  the  substance 
of  the  contents.  Coxe  v.  England,  65  Pa. 
St.  212.  Where  a  will  has  been  lost,  tlie 
execution  and  contents  of  it  may  be  proved 
by  one  witness,  although  the  execution  of 
it  must  be  by  three  witnesses.  Williams 
V.  Williams,  142  Mass.  ,515. 

(b)  Otherwise,  if  no  record  is  required 
by  law  or  kept.  Farnsworth  Company  v. 
Rand,  65  Me.  19. 

(c)  Poorman  v.  Miller,  44  Cal.  269; 
Bovee  v.   McLean,   24  Wis.  225. 

(d)  Fleming^;.  Clark,  12 Allen  (Mass.), 
191  ;  Mieheuer  v.  Lloyd,  16  N.  J.  Eq. 
38. 


CHAP.    IV.]  THE   BEST   EVIDENCE.  133 

istry  of  marriages  and  births,  and  tlic  like,  it  lias  not  tliis  exclu- 
sive character,  but  any  other  legal  ])roof  is  admitted.^  (g) 

§  87.  Where  parties  have  agreed  in  writing.  In  the  Second 
place,  oral  proof  cannot  be  substituted  for  the  written  evidence  of 
ani/  contract  which  the  parties  have  put  in  writing.  Here,  the 
written  instrument  may  be  regarded,  in  some  measure,  as  the 
ultimate  fact  to  be  proved,  especially  in  the  cases  of  negotiable 
securities;  and,  in  all  cases  of  written  contracts,  the  writing  is 
tacitly  agreed  upon,  by  the  parties  themselves,  as  the  only  re- 
pository and  the  appropriate  evidence  of  their  agreement.  The 
written  contract  is  not  collateral,  but  is  of  the  very  essence  of 
the  transaction.!  {a)  If,  for  example,  an  action  is  brought  for  use 
and  occupation  of  real  estate,  and  it  appears  by  the  plaintiff's 
own  showing  that  there  was  a  written  contract  of  tenancy,  he 
must  produce  it,  or  account  for  its  absence ;  though,  if  he  were 
to  make  out  a  prima  facie  case,  without  any  appearance  of  a  writ- 
ten contract,  the  burden  of  producing  it,  or  at  least  of  proving 

*  Commonwealth  v.  Xorcross,  9  Mass.  492  ;  Ellis  v.  Ellis,  11  Mass.  92  ;  Owings  v. 
Wyaiit,  3  H.  &  McH.  393  ;  2  Stark.  Evid.  571  ;  Kex  v.  Allison,  U.  &  R.  109  ;  Reed 
V.  Passer,  Peake's  Cas.  231. 

1  The  principles  on  which  a  writing  is  deemed  part  of  the  essence  of  any  transaction, 
and  consequently  the  best  or  primary  proof  of  it,  are  thus  explained  by  Domat :  "  The 
force  of  written  proof  consists  in  this,  —  men  agree  to  })reserve  by  writing  the  remem- 
brance of  past  events,  of  which  they  wish  to  create  a  memorial,  eitlier  with  a  view  of 
laying  down  a  rule  for  their  own  guidance,  or  in  order  to  have,  in  the  instru- 
ment,"a  lasting  proof  of  the  truth  of  what  is  written.  Thus  contracts  are  written,  in 
order  to  preserve  the  memorial  of  what  the  contracting  parties  have  prescribed  for  each 
other  to  do,  and  to  make  for  themselves  a  fixed  and  immutable  law,  as  to  what  has 
been  agreed  on.  So,  testaments  are  written,  in  order  to  preserve  the  remembrance  of 
what  the  party  who  has  a  riglit  to  dispose  of  his  property  has  ordained  concerning  it, 
and  thereby  lay  down  a  rule  for  the  guidance  of  his  heirs  and  legatees.  On  the  same 
principle  are  reduced  into  writing  all  sentences,  judgments,  edicts,  ordinances,  and 
other  matters  which  either  confer  title  or  have  the  force  of  law.  Tlie  writing  preserves, 
unchanged,  the  matters  entrusted  to  it,  and  expresses  the  intention  of  the  parties  by 
their  own  testimony.  The  truth  of  written  acts  is  established  by  the  acts  themselves  ; 
that  is,  by  the  inspection  of  the  originals."  See  Domat's  Civil  Law,  liv.  3,  tit.  6,  §  2, 
as  translated  in  7  Monthly  Law  Mag.  p.  73. 

(c)  Howser  v.  Com.,  51  Pa.  St.  332.  Pendery  v.  Crescent,  &o.  Tns.  Co.,  21  La. 
Qillett  V.  County  Commissioners,  18  Kan.  An.  410;  Ticknor-y.  Calhoun,  29  Id.  277  ; 
410  ;  Brown  v.  Countv  Commissioners,  63  Stratford  v.  Ames,  8  Allen  (Mass.),  577  ; 
N.  C.  514;  Wayland  I'."  Ware,  104  Mass.  46.  Steele  v.  Etheridsc,  15  Minn.  501  ;  Ikld- 
So  where  a  grantee,  at  the  time  of  receiving  win  v.  McKay,  41  Miss.  358;  Fosters. 
a  deed  of  land,  agreed  by  parol  that  tbe  Newbrough,  58  N.  Y.  481  ;  Hatch  v. 
grantor  might  continue  to  exercise  a  right  Pryor,  2  Abb.  (N.  Y.)  A])p.  Dec.  343  ; 
of  way  over  the  land,  the  evidence  was  held  Littlejohn  v.  Fowler,  5  Cold.  (Term.)  287. 
admissible,  not  because  a  right  of  way  can  If  a  map  or  plan  is  referred  to  in  a  con- 
be  created  by  a  parol  grant,  but  to  show  tract,  in  such  a  way  as  to  make  it  a  part  of 
that  the  grantor's  subse(iuent  possession  of  the  contract,  the  plan  is  the  only  jirimary 
such  easement  commenced  under  a  claim  evidenceof  its  contents.  Bryant  y.  Stilwell, 
of  right.  Ashleyv.  Ashley,  4  Gray  (Mass.),  24  Pa.  St.  314.  Tha /a?t  that  a  written 
199.  agreement  was  made  may  be  shown  by  parol. 

{a)  Lewis  v.   Hadmon,  56   Ala.   186;  Siuighart  i;.  Moore,  78  Pa.  St.  469. 


134  LAW   OF   EVIDENCE.  [PART  II. 

its  existence,  would  be  devolved  on  the  defendant.^     But  if  the 
fact  of  the  occupation  of  land  is  alone  in  issue  without  respect  to 
the  terms  of  the  tenancy,  this  fact  may  he  proved  by  any  compe- 
tent oral  testimony,  such  as  payment  of  rent,  or  declarations  of 
the  tenant,  notwitlistanding  it  appears  that  the  occupancy  was 
under  an  agreement  in  writing;  for  here  the  writing  is  only  col- 
lateral to  the  fact  in  question. 3(^)     The  same  rule  applies  to 
every  other  species  of  written  contract.     Thus,  where,  in  a  suit 
for  the  price  of  labor  performed,  it  appears  that  the  work  was 
commenced  under  an  agreement  in  writing,  the  agreement  must 
be  i)roduced ;  and  even  if  the  claim  be  for  extra  work,  the  plain- 
tiff must  still  produce  the  written  agreement;  for  it  may  furnish 
evidence,  not  only  that  the  work  was  over  and  beyond  the  original 
contract,  but  also  of  the  rate  at  which  it  was  to  be  paid  for.     So, 
in  an  indictment  for  feloniously  setting  fire  to  a  house,  to  defraud 
the  insurers,  the  policy  itself  is  the  ajjpropriate  evidence  of  the 
fact  of  insurance,  and  must  be  produced. ^  (c)     And  the  recorded 
resolution  of  a  charitable  society,  under  which  the  plaintiff  earned 
the  salary  sued  for,  was  on  the  same  principle  held  indispensably 
necessary  to  be  produced.^     The  fact  that  in  such  cases  the  writ- 
ing is  in  the  possession  of  the  adverse  party  does  not  change  its 
character :  it  is  still  the  primary  evidence  of  the  contract ;  and 
its  absence  must  be  accounted  for  by  notice  to  the  other  party  to 
produce  it,  or  in  some  other  legal  mode,  before  secondary  evi- 
dence of  its  contents  can  be  received.^  (f?) 

2  Brewer  v.  Palmer,  3  Esp.  213;  confirmed  iu  Ramsbottom  v.  Tunbriclge,  2  M.  &  S. 
434-  Piex  V.  Kawden,  8  B.  &  C.  708;  Strother  v.  Ban;  5  Bing.  136,  per  Fnvke,  J. 

3  Rex  V.  Inhabitants  of  Holy  Trinity,  7  B.  &  C.  611;  Doev.  Harvey,  8  Bing.  239, 
241;  S].iers  V.  Willison,  4  Craneh,  398;  Dennett  i;.  Crocker,  8  Greenl.  239,  244. 

*'  Rex^•.  Doran,  1  Esp.  127;  Rex  v.  Gilson,  Riiss.  &  Ry.  138. 

5  Whittbrd  v.  Tutin,  10  Bing.  395;  Molton  v.  Harris,  2  Esp.  549. 

G  See  fnrther.  Rex  v.  Rawden,  8  B.  &  C.  708;  Seliree  v.  Dorr,  9  Wheat.  558;  Bul- 
lock V.  Koon,  9  Coweii,  30;  Mather  v.  Goddard,  7  Conn.  304;  Rank  v.  Shewey,  4 
Watts,  218;  Northrup  v.  Jackson,  13  Wend.  86;  Vinal  v.  Burrill,  16  Pick.  401,  407, 
408;  Lananze  v.  Palmer,  1  M.  &  M.  31. 

(h)  RayneriJ.  Lee,  20  Mich.  384.  production  of  the  writing  or  .some  excuse 
(c)  But  in  Com.  i;.  Goodwin,  122  Mass.  for  its  non-production.  Cf.  Magnay  v. 
19,  it  was  held  that  when  an  indictment  Knight,  1  M.  &  G.  944. 
is  brought  against  one  for  threatening  to  (d)  If  a  party  to  a  suit,  being  notified 
accuse  A.  of  haviuf^  burned  a  building  be-  to  produce  papers  at  the  trial,  fails  to  do 
lontrincr  to  A.  whieli  was  insured,  in  order  so,  and  the  other  party  puts  in  secondary 
to  gain  the  insurance,  the  fact  that  the  evidence  of  their  contents,  the  party  re- 
building was  insured  need  not  be  proved  fusing  to  produce  cannot  afterwards  give 
by  the  policy.  The  judge  rests  his  de-  the  papers  in  evidence  (Doon  v.  Donaher, 
cision  in  this  case  on  the  ground  that  a  113  Mass.  151),  and  if  it  appears  that  he 
contract  of  insurance  may  be  effected  has  wilfully  kept  back  or  has  destroyed 
without  a  written  policy,  and  that  as  no  the  document,  he  will  not  be  allowed  to 
written  contract  to  insure  was  disclosed  give  evidence  of  its  contents.  Gage  v. 
in  the  evidence  admitted,  there  was  no  Campbell,  131  Mass.  566. 
violation  of  the  rule,   which  requires  the 


CHAP.    IV.]  THE    BEST   EVIDENCE.  135 

§  88.  Where  existence  of  writing  is  disputed.  Ill  the  third 
place,  oral  evidence  cannot  ])0  substituted  for  any  writing^  the 
existence  of  lohich  is  disputed,  and  which  is  material  either  to  the 
issue  between  the  parties,  or  to  the  credit  of  witnesses,  and  is  not 
merely  the  memorandum  of  some  other  fact.  For,  by  applying 
tlie  rule  to  such  cases,  the  court  acquires  a  knowledge  of  the  whole 
contents  of  the  instrument,  which  may  have  a  different  effect 
from  the  statement  of  a  part.^  (a)  "  I  have  always,"  said  Lord 
Tenterden,  "  acted  most  strictly  on  the  rule,  that  what  is  in  writ- 
ing shall  only  be  proved  by  the  writing  itself.  My  experience  has 
taught  me  the  extreme  danger  of  relying  on  the  recollection 
of  witnesses,  however  honest,  as  to  the  contents  of  written  instru- 
ments ;  they  may  l)e  so  easily  mistaken,  that  I  think  the  purposes 
of  justice  require  the  strict  enforcement  of  the  rule."  ^  Thus,  it 
is  not  allowed,  on  cross-examination,  in  the  statement  of  a  ques- 
tion to  a  witness,  to  represent  the  contents  of  a  letter,  and  to  ask 
the  witness  whether  he  wrote  a  letter  to  any  person  with  such 
contents,  or  contents  to  the  like  effect,  without  having  first  shown 
the  letter  to  the  witness,  and  having  asked  him  whether  he  wrote 
that  letter ;  because,  if  it  were  otherwise,  the  cross-examining 
counsel  might  put  the  court  in  possession  of  only  a  part  of  the 
contents  of  a  paper,  when  a  knowledge  of  the  whole  was  essential, 

1  So  held  by  all  the  judges  in  The  Queen's  Case,  2  Brod.  &  Bing.  287.     See  also 
Phil.  &  Am.  on  Evid.  441 ;  1  Phil.  Evid.  422. 
^  Vincent  v.  Cole,  1  M.  &  M.  2.58. 

(a)  So  in  an  action  for  infringing  a  transcript  delivered  to  the  person  ad- 
copyright  of  a  play,  a  witness  cannot  be  dressed  is  for  some  purposes,  as  between 
asked  whether  the  jtlot  of  the  infringing  him  and  the  sender,  deemed  the  original, 
play  is  not  in  a  certain  book,  or  to  state  it  never  can  be  so  without  competent'iiroof 
any  passages  from  the  play  which  are  in  that  the  alleged  sender  did  actually  send, 
the  book.  Boucicault  v.  Fox,  5  Blatchf.  or  authorize  to  be  sent,  the  despatches  in 
C  C.  87.  question.     The  primary  evidence  of  that 

Where  a  telegraphic  communication  is  fact  is  the  original  telegram  itself  in  the 
relied  on,  the  original,  when  the  person  to  handwriting  of  the  sender,  or  of  an  agent 
whom  it  is  sent  takes  the  risk  of  its  trans-  shown  to  have  been  duly  authorized.  But 
mission  or  is  the  employer  of  the  tele-  when  it  appears  that  the  telegram  has 
graph,  is  the  message  delivered  to  the  been  destroyed  by  the  company,  secondary 
operator,  but  when  the  person  who  sends  evidence  of  the  fact  of  sending  may  be 
the  message  takes  the  initiative  so  that  the  given.  Oregon  Steamship  Co.  v.  Otis,  100 
telegraph  is  to  be  regarded  as  his  agent,  N.  Y.  453.  A  witness  may  prove  orally 
the  original  is  the  message  delivered  at  the  the  substance  of  telegrams,  unless  there  is 
end  of  the  line.  Durkee  i\  Vermont  Cen-  some  evidence  that  the  telegrams  were 
tral  R.  R.  Co.,  29  Vt.  127  ;  Saveland  v.  in  writing,  since  some  telegrams  are  sent 
Green,  40  Wis.  431  ;  Matteson  v.  Noyes,  orally  and  delivered  orally,  but  the  course 
25  111.  591  ;  Williams  v.  Brickell,  37  Aliss.  of  business  is  so  generally  to  transmit  only 
682  ;  Morgan  v.  People,  59  111.  58  ;  West,  written  messages,  that  slight  proof  is  sutfi- 
Un.  Tel.  Co.  v.  Shotter,  71  Ga.  760  ;  Wil-  cient  to  show  that  the  message  was  writ- 
son  V.  Minn.  &  N.  W.  R.  R.  Co.,  31  Minn,  ten,  and  to  call  for  the  original  writing. 
481  ;  Anheuser-Busch  Brewing  Assoc,  v.  'J'erre  Haute  &  Ind.  R.  R.  Co.  v.  Stock- 
Hutmacher,  127  111.  657.     But  while  the  well,  118  lud.  102. 


136  LAW   OF   EVIDENCE.  [PART   II. 

to  a  right  judgment  in  the  cause.  If  the  witness  acknowledges 
the  writing  of  the  letter,  yet  he  cannot  he  questioned  as  to  its 
contents,  but  the  letter  itself  must  be  rcad.^  (i)  And  if  a  witness 
being  examined  in  a  foreign  country,  upon  interrogatories  sent 
out  with  a  commission  for  that  purpose,  should  in  one  of  his  an- 
swers state  the  contents  of  a  letter  which  is  not  produced,  that 
part  of  tlie  deposition  will  be  suppressed,  notwithstanding,  he  be- 
ing out  of  the  jurisdiction,  there  may  be  no  means  of  compelling 
him  to  produce  the  letter.*  (c) 

§  89.  Collateral  writings.  In  cases,  however,  where  the  written 
communication  or  agreement  between  the  parties  is  collateral  to 
the  question  in  issue,  it  need  not  be  produced ;  as,  where  the 
writing  is  a  mere  proposal,  which  has  not  been  acted  upon ;  ^  or, 
where  a  written  memorandum  was  made  of  the  terms  of  the  con- 
tract, which  was  read  in  the  presence  of  the  parties,  but  never 
signed,  or  proposed  to  be  signed ;  ^  or,  where,  during  an  employ- 
ment under  a  written  contract,  a  separate  verbal  order  is  given ;  ^ 
or,  where  the  action  is  not  directly  upon  the  agreement,  for  non- 
performance of  it,  but  is  in  tort,  for  the  conversion  or  detention 
of  the  document  itself ;  *  or,  where  the  action  is  for  the  plaintiff's 
share  of  money  had  and  received  by  the  defendant,  under  a  writ- 
ten security  for  a  debt  due  to  them  both.^  (a) 

8  The  Queen's  Case,  2  Brod.  &  Bing.  287  ;  infra,  §  463. 
*  Steinkeller  v.  Newton,  9  C.  &  P.  313. 

1  Ingram  v.  Lea,  2  Campb.  521  ;  Ramsbottom  v.  Tunbridge,  2  M.  &  S.  434  ;  Ste- 
vens V.  Pinney,  8  Taunt.  327  ;  Doe  v.  Caitwright,  3  B.  &  A.  326  ;  Wilson  v.  Bowie, 
1  C.  &  P.  8  ;  Hawkins  ;;.  Warre,  3  B.  &  C.  690. 

2  Trewhitt  v.  Lambert,  10  Ad.  &  EL  470. 
8  Reid  V.  Battle,  M.  &  M.  413. 

4  JoUey  V.  Taylor,  1  Campb.  143  ;  Scott  v.  Jones,  4  Taimt.  865  ;  How  v.  Hall,  14 
East,  274  ;  Bucher  v.  Jan-att,  3  B.  &  P.  143  ;  Whitehead  v.  Scott,  1  Moo.  &  R.  2  ;  Ross 
V.  Bruce,  I  Day,  100 ;  People  v.  Holbrook,  13  Johns.  90  ;  M'Lean  t;.  Hertzog,  6  S.  &  R. 
154. 

5  Bayne  v.  Stone,  4  Esp.  13.  See  Tucker  v.  "Welsh,  17  Mass.  165  ;  McFadden  v. 
Kingsbury,  11  Wend.  667  ;  Southwick  v.  Stephens,  10  Johns.  443. 

(b)  Augur  Company  v.  Whittier,  117  v.  Snively,  23  Md.  253;  Supples  v.  Lewis, 
Mass.  451  ;  Jackson  v.  Jackson,  47  Ga.  99.  37  Conn.   568  ;  "Ward  v.  Busack,  46  Wis. 

(c)  Comstock  V.  Carnley,  4  Blatch.  407.  So,  the  fact  that  a  letter  was  writ- 
C.  C.  58  ;  Beall  v.  Poole,  27  Md.  645  ;  ten  may  be  proved  by  oral  evidence,  al- 
Dwyer  v.  Dunbar,  5  Wall.  (U.  S.)  318;  though  its  contents  cannot.  Holconibe  f. 
Lowry  V.  Harris,  12  Minn.  255  ;  Leese  v.  State,  28  Ga.  66.  So,  when  a  deposit  is 
Clark,  29  Cal.  664  ;  Peck  v.  Parchen,  52  made  in  a  bank  of  a  draft,  if  only  the 
Iowa,  46.  In  Newcornb  v.  Noble,  10  amount  of  the  deposit  is  in  issue,  it  may 
Gray  (Mass.),  47,  a  deposition  in  which  be  j)roved  by  oral  evidence.  Bowen  v. 
the  subscribing  witness  stated  the  con-  National  Bank  of  Newport,  18  N.  Y. 
tents  of  the  mortgage  under  which  the  Supr.  Ct.  226.  The  rule  stated  by  Mr. 
plaintiff  claimed,  and  whicli  was  already  Greenleaf  in  §  89  has  been  disputed  by 
proved  in  the  case,  was  admitted  to  iden-  Phillips,  Evid.  (Cow  &  Hill's  ed. ),  vol.  2, 
tify  the  property  claimed.  p.   398,  and   by  the  Court   in  Gilbert  v. 

(a)  Shoenberger  v.   Hackman,   37  Pa.     Duncan,  5  Dutch.  (N.  J.)  133. 
St.  87;  Scott  V.  Baker,  lb.  330;  Cecil  Bank 


CHAP.    IV.]  THE    BEST    EVIDENCE.  137 

§  90.  In  other  cases  admissible.  But  wlierc  the  writing  does 
not  fall  within  cither  of  the  three  classes  already  described,  there 
is  no  ground  for  its  excluding  oral  evidence.  As,  for  exam|)le, 
if  a  written  communication  be  acco7npanied  by  a  verbal  one,  to 
the  same  effect,  the  latter  may  be  received  as  independent  evi- 
dence, though  not  to  prove  the  contents  of  the  writing,  nor  as  a 
substitute  for  it.  (a)  Thus,  also,  the  payment  of  money  may  be 
proved  by  oral  testimony,  though  a  receipt  be  taken ;  ^  (b)  in  trover, 
a  verbal  demand  of  the  goods  is  admissible,  though  a  demand  in 
writing  was  made  at  the  same  time;^  the  admission  of  indebt- 
ment  is  provable  by  oral  testimony,  though  a  written  promise  to 
pay  was  simultaneously  given,  if  the  paper  be  inadmissible  for 
want  of  a  stamp.  "^  Such,  also,  is  the  case  of  the  examination  and 
confession  of  a  prisoner,  taken  down  in  writing  by  the  magistrate, 
but  not  signed  and  certified  pursuant  to  the  statutes.*  And  any 
writing  inadmissible  for  the  want  of  a  stamp,  or  other  irregularity, 
may  still  be  used  by  the  witness  who  wrote  it,  or  was  present  at 
the  time,  as  a  memorandum  to  refresh  his  own  memory,  from 
which  alone  he  is  supposed  to  testify,  independently  of  the  written 
paper. ^  In  like  manner,  in  prosecutions  for  political  offences, 
such  as  treason,  conspiracy,  and  sedition,  the  inscription  on  flags 
and  banners  paraded  in  public,  (c)  and  the  contents  of  resolutioyis 
read  at  a  public  meeting,   may  be  proved  as  of  the  nature  of 

'  Rambert  v.  Cohen,  4  Esp.  213;  Jacob  v.  Lindsay,  1  East,  460;  Doe  v.  Cartwiight, 
3  B.  &  A.  b26. 

2  -Smith  V.  Young,  1  Campb.  439. 

3  Singleton  v.  Barrett,  2  (Jr.  &  Jer.  368. 

4  Lanilje's  Case,  2  Leach,  625,  Rex  y  Chappel,  1  Moo.  &  R.  39.5,  396,  n. ;  2  Pliil. 
Evid.  81,  82;  Roscoes  Crini.  Evid.  46,  47. 

^  Dalison  v.  Stark,  4  Esp.  163;  Jacob  v.  Lindsay,  1  East,  460;  Maugham  v.  Hub- 
bard, 8  B.  &  C.  14;  Rex  v.  Tarrant,  6  C  &  P.  182,  Rex  v.  Piessly,  Id.  183;  Layers 
Case,  IG  HowellsSt.  Tr.  223,  infra,  §§  22S,  436. 

(a)  Cramer  v.  Shriner,  18  Md.  140.  (c)  The  oral  evidence  in  such  ca.ses  is 
So,  altfiough  proof  of  the  legal  organiza-  adniis-^ible  on  somewhat  the  same  princijile 
tion  of  a  corporation  re(juiies  the  piodiic-  as  tiuit  stated  by  the  author  iir  §§  100- 
tion  of  the  record  which  is  lecpiiied  by  the  101,  where  the '/v?/*^u:sgiverr  at  the  dwelling- 
statutes,  or  a  certified  copy  of  it,  yet  the  liouse  of  a  bankni[)t,  denying  that  lie  r.s 
fact  that  the  corjioration  is  de  facto  a.  cor-  at  home,  are  held  original  evidence  and 
poration  and  transacts  a  certain  kind  of  not  heaisay.  In  these  ca.ses,  the  triitJt  of 
business,  may  be  proved  bv  its  officers,  or  the  inscriptions  is  not  what  the  evidence 
other  relevant  evidence.  Merchants' Bank  is  olfeied  lo  prove,  hut  the  fact  that  such 
V.  Glendon  Company,  120  Mass.  97  ;  Mil-  woids  were  inscribed  on  the  Mag,  and  this 
ler  i;.  Wild  Cat,  &c,  Co.,  52  Ind.  51.  Its  may  be  proved  by  any  per>orr  who  saw 
corporate  acts  should  be  proved  by  it.s  them.  So,  to  identify  a  valrse,  woids  on 
records.  Central  Bridge,  &c.  C'orporatioii  v.  a  tag  attached  to  it  may  be  proved  orally 
Lowell,  15  Gray  (Mass.),  106  ;  Ray  View,  without  laying  a  foundation  lor  secondary 
&c.  Association  v.  Williams,  50  Cal    353.  evidence.     Com.  v.  Moriell,  99  Mass.  542. 

(b)  Kingsbury  v.  iMuses,  45  N,  H,  222;  So,  of  the  direction  on  a  parcel.  Buriell 
Davis   V.    Haie,    32    Aik.    386  ;    Wolf  v.  v.  North,  2  Car.  la  Kir.  680, 

Foster,  13  Kan.  116. 


38 


LAW    OF    EVIDENCE. 


[part  II. 


spoechos,  by  oral  testimony ;"  and  in  the  case  of  printed  papers, 
all  the  impressions  are  regarded  as  originals,  and  are  evidence 
against  the  person  wlio  adopts  the  printing  hy  taking  away 
copies.'  {d) 

§  91.  Exceptions.  —Public  books.  The  rule  rejecting  second- 
ary evidence  is  subject  to  some  exceptions;  grounded  either  on 
public  convenience,  or  on  tlie  nature  of  the  facts  to  be  proved. 
Thus,  the  contents  of  any  record  of  a  judicial  court,  and  of 
entries  in  any  other  public  hooks  or  registers,  may  be  proved  by 
an  examined  copy.  This  exception  extends  to  all  records  and 
entries  of  a  public  nature,  in  books  required  by  law  to  be  kept; 
and  is  admitted  because  of  the  inconvenience  to  the  public  which 
the  removal  of  such  documents  might  occasion,  especially  if  they 
were  wanted  in  two  places  at  the  same  time ;  and  also,  because 
of  the  public  character  of  the  facts  they  contain,  and  the  conse- 
quent facility  of  detection  of  any  fraud  or  error  in  the  copy.i(a) 

§  92.  Written  appointments  to  offices.     For  the  same  reasons, 


6  Rex  V.  Hunt,  3  B.  &  A.  566  ;  Sheridan  &  Kiiwan's  Case,  31  Howell's  .St.  Tr. 
672. 

7  Rex  V.  Watson,  2  Stnrk.  129,  130. 

1  Bull.  N.  P.  226;  1  .Staik.  Evid.  189,  191.  But  tliis  excei)tion  does  not  extend 
to  an  answer  in  chancery,  where  tlie  paity  in  indidt'd  for  lieijiiiy  tlieiem  ;  for  there 
the  original  must  be  iiroduced,  in  oider  to  identify  tiie  party,  hy  pioof  ol  his  band- 
writing.  The  same  reason  ajiplies  to  depositions  and  affidavits.  Rex  v.  Howard,  1 
M.  &  Kob.  189. 


(d)  See  also  ;ws<,  §  97,  n. 

(«)  Berry  v.  Raddin,  11  Allen  (i\Iass  ), 
577;  Winers  u.  Laird,  27  Te.x.  bl6,  Davis 
V.  Gray,  17  Ohio  St.  330  ;  Camden,  &c., 
R.  R.  V.  Stewart,  4  Green  (N.  J.),  343  ; 
Curry  v.  Raymond,  28  Pa.  St.  144  ;  Bovee 
V.  McLean,  24  AVis.  2'lb  ;  Dunham  v. 
Chicago,  55  111.  357  ;  Coons  v.  Renick,  11 
Tex.  134.     See  aKo  post,  §§  484,  5u9. 

The  question  whcthci  a  party  who  le- 
lies  on  a  deed  must  prove  its  contents  by 
the  deed  itself,  or  may  give  in  evi(leiice  a 
co]iy  of  the  reconl  in  the  registry  of  <leeds, 
depends  on  wliether  the  oiiginal  is  pie- 
sumed  to  be  in  his  power  or  not.  If  the 
deed  was  not  mnde  to  eitiiei  of  the  ))aities 
to  tlie  suit,  nor  was  either  of  tliem  entitled 
to  the  custody  of  it,  its  contents  may  be 
jHoved  by  othce  cojiies.  Draper  v.  H.'tt- 
'held,  124  Mass.  53  ;  Stockwell  v.  Sillo- 
wny,  105  Id.  517;  Samuels  v.  Bonowscale, 
104  Id.  207  ;  Blanchard  v.  Young,  11 
(,'ush.  (Mass.)  345  ;  Palmer  v.  Stevens,  Id. 
147  ;  MeNichols  v.  Wilson,  42  Iowa,  385. 
And  such  co))ies  are  prima  fncie  evidence 
of  tiie  fact  that  the  deed  was  signed, 
sealed,  and  delivered  by  the  authuiity  of 


the  grantor,  that  it  was  duly  acknowl- 
edged, and  that  the  grantor  was  seised  of 
the  land  desciibed  in  the  deed.  Chamber- 
lain V.  Bradley,  101  Ma.ss.  188  ;  Ward  v. 
Fuller,  15  Pick.  (Mass  )  185  ;  Sudlow  v. 
Warshing,  108  N.  Y.  522.  But  as  against 
the  grantee,  such  a  cojiy  is  not  admissible 
without  notice  to  him  to  pioihice  the 
oiiginal.  Com.  i;.  Emery,  2  Gray  (Mass.}, 
80. 

In  regard  to  the  y)ioof  of  wrilten  laws, 
it  has  been  already  stated,  ante,  §  5,  that 
tlie  courts  take  judicial  notice  of  tlie  public 
statutes  of  their  own  States.  The  statutes 
of  otlier  States  are  not  so  noticed  and  must 
be  juoved.  In  Massachusetts  it  is  pro- 
vided by  statute  (Pub.  Stat,  c  169,  §  71),^ 
that  jiiinled  copies  of  the  statute  laws  of 
any  other  State  and  of  the  United  States, 
or  of  the  Teiiitories  thereof,  if  ]niri)Oiting 
lo  be  pulilished  under  the  authority  of 
their  lesjiective  governments,  or  if  com- 
moiily  admitted  and  read  as  evidence  in 
their  courts,  shall  be  adndtted  in  this 
Commonwealth  in  all  courts  of  law,  and 
on  all  other  occasions  as  prima  facie  evi- 
dence (if  such  laws.      SbOjiusf,  §  480. 


CHAP.    IV.]  THE    BEST    EVIDENCE.  139 

and  from  the  strong  presumption  arising,  from  the  undistnrlied 
exercise  of  a  public  office,  that  the  appointment  to  it  is  valid,  it  is 
not,  in  general,  necessary  to  prove  the  written  appointments  of 
public  officers.  All  who  are  proved  to  have  acted  as  such  are  pre- 
sumed to  have  been  duly  appointed  to  the  office,  until  the  con- 
trary appears ;  ^  (a)  and  it  is  not  material  how  the  question  arises, 
whether  in  a  civil  or  criminal  case,  nor  whether  the  officer  is  or 
is  not  a  party  to  the  record  ;2  (6)  unless,  being  plaintiff,  he  unne- 
cessarily avers  his  title  to  the  office,  or  the  mode  of  his  appoint- 
ment; in  which  case,  as  has  been  already  shown,  the  proof  must 
support  the  entire  allegation. ^  These  and  similar  exceptions  are 
also  admitted,  as  not  being  within  the  reason  of  the  rule,  which 
calls  for  primary  evidence;  namely,  the  presumption  of  fraud, 
arising  from  its  non-production. 

§  93.  Voluminous  facts.  A  further  relaxation  of  the  rule  has 
heen  admitted,  where  the  evidence  is  the  result  of  voluminous 
facts,  or  of  the  inspection  of  many  books  and  papers,  the  exami- 
nation of  which   could  not  conveniently  take  place  in  court.* 

1  An  officer  de  facto  is  one  who  exercises  an  office  under  color  of  right,  by  virtue  of 
some  appointment  or  election,  or  of  such  acquiescence  of  the  public  as  will  authorize  the 
presumption,  at  least  of  a  colorable  appointment  or  election  ;  being  distinguished,  on  the 
one  hand,  from  a  mere  usurper  of  office,  and  on  the  other  from  an  officer  dejure.  Wil- 
cox V.  Smith,  5  Wend.  231  ;  Plymouth  v.  Painter,  17  Conn.  585  ;  Burke  v.  Elliott,  4 
I  red.  355.     Proof  that  a  person  is  reported  to  be  and  has  acted  as  a  public  officer  is  prima 

facie  evidence,  between  third  persons,  of  his  official  character.  McCoy  v.  Curtice,  9 
Wend.  17.  And  to  this  end  evidence  is  admissible,  not  only  to  show  that  he  exer- 
cised the  office  before  or  at  the  period  in  question,  h\it  also,  limited  to  a  reasonable 
time,  that  he  exercised  it  afterwards.     Doe  v.  Young,  8  Q,  B.  63.     And  see  supra, 

2  Rex  V.  Gordon,  2  Leach's  C.  C  581  ;  Bcrryman  v.  Wise,  4  T.  TJ.  36S  ;  M'Cxahey  ^. 
Alston,  2  M.  &  W.  206,  211:  Radford  v.  Mcintosh,  3  T.  H.  632  ;  Cross  i;.  Kaye,  6  T.  \l. 
663  ;  James  v.  Brawn,  5  B.  &  Aid.  243  ;  Rex  v.  Jones,  2  Campb.  131  ;  Rex  v.  Verclst, 
3  Campb.  432.  A  commissioner  appointed  to  take  affidavits  is  a  public  officer,  within 
this  exception.  Rex  v.  Howard,  1  M.  &  Rob.  187.  See  supra,  §  83  ;  United  States  v. 
Reyburn,  6  Peters,  352.  367  ;  Regina  v.  Newton,  1  Car.  &  Kir.  469  ;  Doe  v.  Barnes,  10 
Jur.  520  ;  8  Q.  B.  1037  ;  Plumer  v.  Brisco,  12  Jur.  351  ;  11  Q.  B.  46  ;  Doe  v.  Young, 
8  Q.  B.  63. 

3  Supra,  §  56  ;  Cannell  v.  Curtis,  2  Ring.  N.  C.  228  ;  Moises  v.  Thornton,  8  T.  R. 
303;  The  People  v.  Hopson,  1  Denio,  574.  In  an  action  by  the  sheriff  for  his  poundage, 
proof  that  he  has  acted  as  sheriff  has  been  held  sufficient  prima  facie  evidence  that  he 
is  so,  without  proof  of  his  appointment.  Bunbury  v.  Matthews,  1  Car.  &  Kir.  380. 
But  in  New  Yoik  it  has  been  held  otherwise.     The  People  v.  Hopson,  sujira. 

*  Phil.  &  Am.  on  Evid.  445  ;  1  Phil.  Evid.  433,  434.  The  rules  of  pleading  have, 
for  a  similar  reason,  been  made  to  yield  to  public  convenience  in  the  administration  of 
justice  ;  and  a  general  allegation  is  ordinarily  allowed,  "  when  the  matters  to  be  pleaded 
tend  to  infiniteness  and  multiplicity,  whereby  the  rolls  shall  be  encumbered  with  the 
length  thereof."     Mints  v.   Bethilj  Cro.   Eliz.   749  ;   Stephen  on  Pleading,  359,  360. 

(a)  Webber  v.  Davis,  5  Allen  (Mass. ),  evidence  of  it.     Bovee  v.  McLean,  24  Wis. 

393  ;   Jacob  v.    United   States,    1    Brock.  225. 

520  ;    New  Portland  v.  Kingfield,  55  Me.  (b)  Com.  v.  McCue,    16  Gray  (Mass.), 

172  ;  Woolsey  v.  Rondout,  4  Abb.  (N.  Y.)  226  ;  Com.  v.  Kane.  108  Mass.  423  ;  Saw- 

App.  Dec.  639.     But  a  person's  own  state-  yer  v.  Steele,  3  Wash.  C.  C.  464. 
ments  that  he  is  such  an  officer  are  not 


140  LAW    OP    EVIDENCE.  [PART    II. 

Thus,  if  there  be  one  invariable  mode  in  which  bills  of  exchange 
have  been  drawn  between  particular  parties,  this  may  be  proved 
by  the  testimony  of  a  witness  conversant  with  their  habit  of  busi- 
ness, and  spealving  generally  of  the  fact,  without  producing  the 
bills.  But  if  the  mode  of  dealing  has  not  been  uniform,  the  case 
does  not  fall  within  this  exception,  but  is  governed  by  the  rule 
requiring  the  production  of  the  writings.^  So,  also,  a  witness 
who  has  inspected  the  accounts  of  the  parties,  though  he  may 
not  give  evidence  of  their  particular  contents,  may  be  allowed  to 
speak  to  the  general  balance,  without  producing  the  accounts.  ^  (a) 
And  where  the  question  is  upon  the  solvency  of  a  party  at  a  par- 
ticular time,  the  general  result  of  an  examination  of  his  books 
and  securities  may  be  stated  in  like  manner.^  (i) 

§  94.  Inscriptions.  Under  this  head  may  be  mentioned  the 
case  of  inscriptions  on  walls  and  fixed  tables,  mural  monuments, 
gravestones,  surveyors'  marks  on  boundary  trees,  &c.,  which,  as 
they  cannot  conveniently  be  produced  in  court,  may  be  proved  by 
secondary  evidence.^  (c) 

§  95.  Preliminary  inquiries.  Another  exception  is  made,  in  the 
examination  of  a  witness  on  the  voir  dire,  and  \n  preliminary  in- 
quiries of  the  same  nature.  If,  upon  such  examination,  the  wit- 
Courts  of  equity  admit  the  same  exception  in  regard  to  parties  to  bills,  where  they  are 
numerous  on  the  like  grounds  of  convenience.     Story  on  Eq.  PI.  94,  95,  et  seq. 

2  Spencer  v.  Billing,  3  Canijib.  310. 

3  Koberts  v.  Doxon,  Peake's  Cas.  83.  But  not  as  to  particular  facts  appearing  on 
the  books  or  deducible  from  the  entries.     Dupuy  v.  Truman,  2  Y,  &  C.  341. 

4  Meyer  v.  Sefton,  2  Stark.  274. 

1  Doe  V.  Cole,  6  C.  &  P.  360  ;  Rex  v.  Fursey,  Id.  81.  But,  if  they  can  conveniently 
be  brought  into  court,  their  actual  production  is  required.  Thus,  where  it  was  pro- 
posed to  show  the  contents  of  a  printed  notice,  hung  up  in  the  office  of  the  party,  who 
was  a  carrier,  parol  evidence  of  its  contents  was  rejected,  it  not  being  affixed  to  the 
freehold.     Jones  v.  Tarlton,  1  D.  P.  C.  N.  s.  625. 

{a)  Leeser  v.  BoekhofT,  38  Mo.  App.  an  opportunity  to  examine  them  before  the 

454.     But  when  the  question  is  about  any  case  is  submitted  to  the  jury.     Bo.ston  & 

particular   entry  or   set   of  entries,    they  '  Worcester   K.   R.    Co.    v.   Dana,    1   Gray 

should  be  proved  by  the  books  (Hunt  v.  (Mass.),    83,    p.    104.     See    Holbrook   v. 

Koylance,  11  Cush.  117;  Poor  u.  Robinson,  Jackson,  7  Cu.sh.  (Mass.)  136. 

13  Bu.sh  (Ky.),  290);  and  if  a  transciipt  (c)    So    the    home    port    of  a   vessel, 

from  the   books  is  ordered  by  the  court,  painted  on  her  stern,  may  be  proved  by 

it  must  be  an  accurate  copy.     McLear  v.  oral  evidence.     Stearns  v.  Doe,   12  Gray 

Succession  of  Hunsecker,  29  I,a.  An.  539.  (Mass.),  482.     Cf.  Mortimer  v.  M'Callan, 

(h)   So  when  books  and  documents  in-  6  M.  &  W.  68,  72  ;   Bruce  v.  Nicolopulo, 

troduced  in  evidence  at  the  trial  are  mul-  11  Ex.  129.     This  rule  may  be  extended 

tifarious  and  voluminous,  and  of  such  a  to  cases  where  the  original  is  in  a  countiy 

character  as  to  render  it  difficult  for  the  from  which  it  is  not  permitted  to  be  re- 

iury  to  comprehend  material  facts,  without  moved.     AHvon  v.   Furnival,  1   CM.   & 

schedules  containing  abstracts  thereof,  it  R.  277,  pp.  291-292  ;  Cnspin  v.  Doglioni, 

is  within  the  discretion  of  the  presiding  32  L.  J.  P.  &  M.  169  ;  Boyle  ".  Wiseman, 

judge  to  admit  such  schedules,  verified  by  10  Ex.  647  ;   Burton  v.   Driggs,  20  Wall, 

the  testimony  of  the  per-son  by  whom  they  (U.  S. )  125. 
were  prepared,  allowing  the  adverse  party 


CHAP.    IV.]  THE   BEST   EVIDENCE.  141 

ness  discloses  the  existence  of  a  written  instrument  affecting  his 
competency,  he  may  also  be  interrogated  as  to  its  contents.  Tr» 
a  case  of  this  kind,  the  general  rule  requiring  the  production  of 
the  instrument,  or  notice  to  produce  it,  docs  not  apply;  for  the 
objecting  i)arty  may  have  been  ignorant  of  its  existence,  until  it 
was  disclo.sed  by  the  witness;  nor  could  he  be  supposed  to  know 
that  such  a  witness  would  be  produced.  So,  for  the  like  reason, 
if  the  witnes.s,  on  the  voir  c?<>^,  admits  any  other  fact  going  to 
render  him  incom|)etent,  the  effect  of  which  has  been  subsc* 
quently  removed  by  a  written  document,  or  even  a  record,  he 
may  speak  to  the  contents  of  such  writing,  without  ])roducing  it; 
the  rule  being  that  where  the  objection  arises  on  the  voir  dire, 
it  may  be  removed  on  the  voir  dire.'^  If,  however,  the  witness 
produces  the  writing,  it  must  be  read,  being  the  best  evidence.* 

§  96.  Admissions.  It  may  be  proper,  in  this  place,  to  consider 
the  question,  whether  a  verbal  admission  of  the  contents  of  a  writ- 
ing, by  the  party  himself,  will  supersede  the  necessity  of  giving 
notice  to  produce  it;  or,  in  other  words,  whether  such  admis- 
sion, being  made  against  the  party's  own  interest,  can  be  used, 
as  primary  evidence  of  the  contents  of  the  writing,  against  him 
and  those  claiming  under  hira.  Upon  this  question,  there  ap- 
pears some  discrepancy  in  the  authorities  at  Ntsi  Frius.^  [a)    But 

1  Phil.  &  Am.  on  Evid.  149  ;  1  Phil.  Evid.  154,  155  ;  Butchers'  Co.  v.  Jones,  1 
Esp.  IdO  ;  Botham  v.  .Swinj^ler,  Id.  164  ;  Hex  v.  Gisbiirn,  15  East,  57  ;  Cailisle  v. 
Eadv,  1  C.  &  P.  234,  n.  ,  iMiJler  v.  Mariner's  Church,  7  Greenl.  51 ;  Sewell  v.  Stiiljl.is, 
1  V.'  &  F.  73. 

^  Butler  f.  Carver,  2  Stark.  434.  A  distinction  has  been  taken  between  cases, 
where  the  coinf)etency  appears  from  the  e.Xiimination  of  the  witness,  and  those  where  it 
is  already  appaient  liom  the  recoid,  without  his  e.xamination  ,  and  it  has  been  held, 
that  the  latter  case  lalls  within  the  rule,  and  not  within  the  excejitiori,  and  that  the 
writing  which  restores  the  competency  must  he  produced.  See  recc.  Goodhay  i.'.  Hen- 
dry, 1  M.  &  M.  319,  per  Best,  C.  J,,  and  Id.  321,  n.,  per  Tindal,  C.  J.  But  .see  Car- 
lisle V.  Eady,  1  C.  &  P.  234,  per  Parke,  J.  ;  Wandless  v.  Cawthorne,  1  M.  &  M.  321, 
n.,  per  Paike,  J.,  tvnrrit.     See  1  Phil.  Evid.  154,  155. 

3  Phil.  &  Am.  on  Evid.  3G3,  364;  1  Phil.  Evid.  346,  347.  -See  the  Monthly  Law 
Miij^azme,  vol.  v.  p.  175-187,  where  this  point  is  distinctly  treated. 

('»)   Tlie  leading  English   case  on  this  Hathaway,    8  Wendell,    480.     But  cf.   iii 

point  is  Slatteiie  i;   Pooley,  6  M.  &  W.  664,  accord  with  SUlteiie  i;.  PooU-y  ;    Murray 

where  it  was  liehl  that  the  admission  of  a  v.   Gregory,    5   Wels.  &   H.  468;   Keg.  f. 

party   is  always   leceivabie  against    him,  Basingstoiie,  14  Q.   B.  611.     Tiiis  seems 

although  ilrelateto  the  contents  of  a  deed,  to  he  the  prevalent  opinion  in  the  United 

or   otiier   written    instrument,    and    even  States.       Loorais    t.     'Wadliam,    8    Gray 

though  its  contents  be  directly  in  issue  in  (Mass  ),  557;  Smith  v    Palmer,  6  Cusli. 

the  case.     This  decision  has  not  heen  uni-  (Massj    513;    Blackington    v.   Rockland, 

versaily  accepted  as  law.    The  Irish  courts  66  Me.  332;   Wolverton  i'.  State,  16  Ohio, 

dissent  fiom  it.      Lawless  v.  QueaJe,  8  Ir.  173;    Edgar  v.    Richardson,  33  Ohio  St. 

Law,  382  ;  Lord  Gosford  v.  Robb,  Id.  217,  581  ;    Edwaids  v.  Tracy,  62  Pa.  St.  374  ; 

I'arsons  v.  Puicell,   12   Id.  90.     And  the  Widdifield  v.   'Widdifield,    2    Binn.    (Pa.) 

>>"lw  York  courts  adopt  a  diH't-reiit  view.  245  (decided  in  1810,  thirty  years  before 

Jeniier  i;.  Johffe,  6  Johns.  9  ;   Hasbronck  Slatterie  v-   Pooley);  Taylor  v.  Peck,  21 

V.  Baker,  lo  Id.  248,    Willaud  Canal   i;.  Gratt.  (Va.)  11.     And  there  is  no  restnc- 


142  LAW   OP    EVIDEiNCE.  [PART   H. 

it  is  to  be  observed,  tbat  there  is  a  material  difference  between 
proving'  the  execution  ^>i  an  attested  instrument,  when  jjroduced, 
and  proving!;  the  j)arty\s  admission  that  by  a  written  instrument, 
which  is  not  produced,  a  certain  act  was  done.  In  the  former 
case,  the  hiw  is  well  settled,  as  wc  shall  liereafter  show,  that 
when  an  attested  instrument  is  in  court,  and  its  cxecutioji  is  to 
be  proved  against  a  hostile  party,  an  admission  on  his  part,  unless 
made  with  a  view  to  the  trial  of  that  cause,  is  not  sulheient.  This 
rule  is  founded  on  reasons  peculiar  to  the  class  of  cases  to  which 
it  is  a])plied.  A  distinction  is  also  to  be  observed  between  a  con- 
fessio  juris  and  a  confessio  facti.  If  the  admission  is  of  the  for- 
mer nature,  it  falls  within  the  rule  already  considered,  and  is 
not  received; 2  for  the  ])arty  may  not  know  the  legal  effect  of  the 
instrument,  and  his  admission  of  its  nature  and  effect  may  be 
exceedingly  erroneous.  But  where  the  existence,  and  not  the 
formal  execution,  of  a  writing  is  the  subject  of  inquiry,  or  where 
the  writing  is  collateral  to  the  principal  facts,  and  it  is  on  these 
facts  that  the  claim  is  founded,  the  better  opinion  seems  to  bo 
that  the  confession  of  the  party,  precisely  identified,  is  admis- 
sible as  primary  evidence  of  the  facts  recited  in  the  writing; 
though  it  is  less  satisfactory  than  the  writing  itself.''^  Very  great 
weight  ought  not  to  be  attached  to  evidence  of  what  a  party  has 
been  supposed  to  have  said;  as  it  frequently  hajjpens,  not  only 
that  the  witness  has  misunderstood  what  the  party  said,  but  that, 
by  unintentionally  altering  a  few  of  the  expressions  really  used, 
he  gives  an  effect  to  the  statement  completely  at  variance  with 
what  the  party  actually  did  say.*  Upon  this  distinction  the  ad- 
judged cases  seem  chieHy  to  turn.  Thus,  where,  in  an  action  by 
the  assignees  of  a  bankrupt  for  infringing  a  j)atent-right  standing 
in  his  name,  the  defendant  [uoposed  to  }»rove  the  oral  declaration  or 
the  bankrupt  that  by  certain  deeds  an  interest  in  the  patent-right 
had  been  conveyed  by  him  to  a  stranger,  the  evidence  was  prop- 

2  Saina,  §  86  ;  Mooie  v.  Hitchcock,  4  Wend.  292,  298,  299  ;  Paine  v.  Tuckei,  7 
Shepl.  138. 

3  Huwanl  v  Smith,  3  Scott,  N.  R.  574  ;  Smith  v.  Palmer,  6  Cush    515. 

4  Per  Pmke,  J.,  \u  Eaiie  v.  Picken,  5  C.  &  P.  542,  n.  See  also  1  Staik.  Evid.  35, 
36  ;  2  Stark.  Evid.  17  ;  xufm,  §§  200,  203  ,  PJi.  &  Am.  on  Evid.  391,  39'2  ;  1  Phil. 
Evid.  372. 

tion  to  imiuiries,  upon  cross-exaniiiiation,  dence  befoie  the  jury  in  support  of  his 

in  rcc^ard  to  writings,  and  facts  evidenced  defence,  and  whether  a  verdict  was  not  len- 

by  writings  ;   and  the  rule  extend.s  to  the  dered  against  him,  withoiil  pioducmg  any 

party  wlio  is  a  witness  in  support  of  his  lecoid  in  the  action.     Henman  v.  Lester, 

own  case  ;  and  he  may  he  asked,  with  a  12  C.  B.  ^.  s   776,  s.  c,  9  Jiir.  M.  b.  60i. 

view  to  disfniilit  lum,  if  he  did  not  in  a  And  see  also  ;iosr,  §§  2u2,  203. 
bimilar  siiit  in  au  iuleiior  court  give  evi- 


CHAP.    IV.]  *         THE    BEST    EVIDENCE.  113 

erly  rejected;  for  it  involved  an  oi)iiiion  of  the  party  upon  the 
legal  effect  of  the  deeds. ^  On  the  other  hand,  it  has  been  licld 
that  the  fact  of  the  tenancy  of  an  estate,  or  that  one  person,  at 
a  certain  time,  occupied  it  as  the  tenant  of  a  certain  other 
person,  may  be  proved  by  oral  testimony.  But  if  the  terms  of 
the  contract  are  in  controversy,  and  they  arc  contained  in  a 
writing,   the  instrument  itself  must  be  produced.^ 

§  97.  Admissions.  There  is  a  class  of  cases,  which  seem  to  be 
exceptions  to  this  rule,  and  to  favor  the  doctrine  that  oral  declara- 
tions of  a  party  to  an  instrument,  as  to  its  contents  or  effect,  may 
be  shown  as  a  sul)stitute  for  direct  proof  by  the  writing  itself. 
But  these  cases  stand  on  a  different  principle,  namely,  that  where 
the  admission  involves  the  material  fact  in  pais,  as  ivell  as  a  matter 
of  law,  the  latter  shall  not  operate  to  exclude  evidence  of  the  fact 
from  the  jury.  It  is  merely  placed  in  the  same  predicament  with 
mixed  questions  of  law  and  fact,  which  are  always  left  to  the 
jury,  under  the  advice  and  instructions  of  the  court.  ^  Thus,  where 
the  plaintiff  in  ejectment  had  verbally  declared  that  he  had  "  sold 
the  lease,"  under  which  he  claimed  title,  to  a  stranger,  evidence 
of  this  declaration  was  admitted  against  him. 2  It  involved  the 
fact  of  the  making  of  an  instrument  called  an  assignment  of  the 
lease,  and  of  the  delivery  of  it  to  the  assignee,  as  well  as  the  legal 
effect  of  the  writing.  So,  also,  similar  proof  has  been  received, 
that  the  party  was  " possessed  of  a  leasehold ; "  ^  "held  a  note," "^ 
"had  dissolved  a  partnership,"  which  was  created  by  deed;^  and 
that  the  indorser  of  a  dishonored  bill  of  exchange  admitted,  that 
it  had  been  "  duly  protested. "  ^  What  the  party  has  stated  in  his 
answer  in  Chancery  is  admissible  on  other  grounds;  namely,  that 
it  is  a  solemn  declaration  under  oath  in  a  judicial  proceeding, 
and  that  the  legal  effect  of  the  instrument  is  stated  under  the 
advice  of  counsel  learned  in  the  law.  So,  also,  where  both  the 
existence  and  the  legal  effect  of  one  deed  are  recited  in  another, 

5  Blo.xam  v.  Elsie,  1  C.  &  P.  558  ;  s.  c.  Ry.  &  M.  187.  See  to  the  same  point,  Hex 
V.  Hube,  Peake's  Cas.  132  ;  Tlioinas  v.  Aiisley,  6  Esp.  80,  Scott  v.  Claie,  3  Cainpb. 
236  ;  Rex  v.  Careiuion,  8  East,  77  ;  Harrison  v.  More,  Phil.  &  Am.  on  Evul.  365,  Ji.  ; 
1  Phil.  Evid.  347,  n.  ;  Pvex  v.  Inhabitants  of  Castle  Morton,  3  B.  &  Aid.  583. 

6  Brewer  v.  Palmer,  3  Esp.  213  ;  Rex  v.  Inhabitants  of  Holy  Trinity,  7  B  &  C.  611  ; 
s.  c.  1  Man.  k  Ry.  444  ;  Strother  v.  Barr,  5  Bing.  136;  Ramsbottom  v.  Tun  bridge,  2 
M.  &  S.  434. 

1  United  States  v.  Battiste,  2  Sumn.  240.  And  see  Newton  v.  Belcher,  12  Q.  B. 
921. 

•■2  Doe  d.  Lowden  v.  Watson,  2  Stark.  230. 

3  Digby  V.  Steel,  3  Campb.  115.  *  Sewell  v.  Stubbs,  1  C.  &  P.  73. 

&  Doe  d.  Waithman  v.  Miles,  1  Stark.  181  ;  4  Campb,  375. 

6  Gibbons  v.  Coggon,  2  Campb.  188.  Whether  an  admission  of  the  counterfeit 
character  of  a  bank-note,  which  tlie  party  had  ]iassed,  is  sufficient  evidence  of  the  lact, 
without  producing  the  uote,  quccre  ;  and  see  Commonwealth  v.  Ijigelow,  8  Alet.  235. 


144  LAW   OF   EVIDENCE,  [PART   II. 

the  solemnity  of  the  act,  and  the  usual  aid  of  counsel,  take  the 
case  out  of  the  reason  of  the  general  rule,  and  justify  the  admis- 
sion of  such  i-ecital,  as  satisfactory  evidence  of  the  legal  effect  of 
the  instrument,  as  well  as  conclusive  proof  of  its  execution." 
There  are  other  cases  which  may  seem,  at  first  view,  to  consti- 
tute exceptions  to  the  present  rule,  but  in  which  the  declarations 
of  the  party  were  admissible,  cither  as  contemporaneous  with  the 
act  done,  and  expounding  its  character,  thus  being  part  of  the 
res  gestce;  or,  as  establishing  a  collateral  fact,  independent  of 
the  written  instrument.  Of  this  sort  was  the  declaration  of  a 
bankrupt,  upon  his  return  to  his  house,  that  he  had  been  absent 
in  order  to  avoid  a  writ  issued  against  him;^  the  oral  acknowl- 
edgment of  a  debt  for  which  an  unstamped  note  had  been  given  ;^ 
and  the  oral  admission  of  the  party,  that  he  was  in  fact  a  mem- 
ber of  a  society  created  by  deed,  and  had  done  certain  acts  in 
that  capacity.  1^ 

'  Ashmore  v.  Hardy,  7  C  &  P.  501  ;  Digbv  v.  Steel,  3  Campb.  115  ;  Burleigh  v. 
Stibbs,  5  T.  R.  465  ;  Westf.  Dam,  7  East,  363;  Paul  v.  Meek,  2  Y.  &  J.  116  ;  Bretoa 
V.  Cope,  Peake's  Cas.  30 

8  Newman  v.  Stretch,  1  M.  &  M.  338.  »  Singleton  v.  Barrett,  2  C.  &  J.  368. 

w  Aldersou  v.  Clay,  1  Stark.  405  ;  Harvey  v.  Kay,  9  B.  &  C.  356. 


CHAP,    v.]  OP    HEARSAY.  145 


CHAPTER  V. 

OP   HEARSAY. 

§  98.  Direct  and  hearsay  evidence.  The  first  degree  of  moral 
evidence,  and  that  which  is  most  satisfactory  to  the  mind,  is 
afforded  by  our  own  senses;  this  being  direct  evidence  of  the 
highest  nature.  Where  this  cannot  be  had.  as  is  generally  the 
case  in  the  proof  of  facts  by  oral  testimony,  the  law  requires 
the  next  best  evidence;  namely,  the  testimony  of  those  who  can 
speak  from  their  own  personal  knowledge.  It  is  not  requisite 
that  the  witness  should  have  personal  knowledge  of  the  main 
fact  in  controversy,  for  this  may  not  be  provable  by  direct  testi- 
mony, but  only  by  inference  from  other  facts  shown  to  exist. 
But  it  is  requisite  that,  whatever  facts  the  witness  may  speak 
to,  he  should  be  confined  to  those  lying  in  his  own  knowledge, 
whether  they  be  things  said  or  done,  and  should  not  testify  from 
information  given  by  others,  however  worthy  of  credit  they  may 
be.  For  it  is  found  indispensable,  as  a  test  of  truth  and  to  the 
proper  administration  of  justice,  that  every  living  witness  should, 
if  possible,  be  subjected  to  the  ordeal  of  a  cross-examination, 
tJiat  it  may  appear  what  were  his  powers  of  perception,  his  op- 
portunities for  observation,  his  attentiveness  in  observing,  the 
strength  of  his  recollection,  and  his  disposition  to  speak  the 
truth.  But  testimony  from  the  relation  of  third  persons,  even 
where  the  informant  is  known,  cannot  be  subjected  to  this  test; 
nor  is  it  often  possible  to  ascertain  through  whom,  or  how  many 
persons,  the  narrative  has  been  transmitted  from  the  original 
witness  of  the  fact.  It  is  this  which  constitutes  that  sort  of 
second-hand  evidence  termed  "hearsay." 

§  99.  Hearsay.  The  term  hearsay  is  used  with  reference  to 
that  which  is  written,  as  well  as  to  that  which  is  spoken;  and, 
in  its  legal  sense,  it  denotes  that  kind  of  evidence  which  does  not 
derive  its  value  solely  from  the  credit  to  be  given  to  the  witness 
himself,  but  rests  also,  in  part,  on  the  veracity  and  competency 
of  some  other  person.  ^((7)     flearsay  evidence,  as  thus  described, 

1  1  Phil.  Evid.  185. 

(a)  People  v.  Cox,  21  Hun  (N.  Y.),  Filley  t;.  Angell,  102  Ma'^s.  67  ;  Hathaway 
47  ;    Hunter   v.    Randall,    69    Me.    183 ;     v.  Tinkham,    148    Mass.    87  ;     State    v. 

VOL.  I.  —  10 


146  LAW   OF   EVIDENCE.  [PART  11. 

is  uniformly  held  incompetent  to  establish  any  specific  fact, 
which,  in  its  nature,  is  susceptible  of  being  proved  by  witnesses 
who  can  speak  from  their  own  knowledge.  That  this  species  of 
testimony  supposes  something  better,  which  might  be  adduced  in 
the  particular  case,  is  not  the  sole  ground  of  its  exclusion.  Its 
extrinsic  weakness,  its  incompetency  to  satisfy  the  mind  as  to 
the  existence  of  the  fact,  and  the  frauds  which  may  be  practised 
under  its  cover,  combine  to  support  the  rule  that  hearsay  evi- 
dence is  totally  inadmissible.^ 

§  100.  Original  and  hearsay  evidence  distinguished.  Before  we 
proceed  any  farther  in  the  discussion  of  this  branch  of  evidence, 
it  will  be  proper  to  distinguish  more  clearly  between  hearsay 
evidence  and  that  which  is  deemed  original.  For  it  does  not 
follow,  because  the  writing  or  words  in  question  are  those  of  a 
third  person,  not  under  oath,  that  therefore  they  are  to  be  con- 
sidered as  hearsay.  On  the  contrary,  it  happens,  in  many  cases, 
that  the  very  fact  in  controversy  is,  whether  such  things  were 
written  or  spoken,  and  not  whether  they  were  true ;  and,  in  other 
cases,  such  language  or  statements,  whether  written  or  spoken, 
may  be  the  natural  or  inseparable  concomitants  of  the  principal 
fact  in  controversy.^  In  such  cases,  it  is  obvious  that  the  writ- 
ings or  words  are  not  within  the  meaning  of  hearsay,  but  are 
original  and  independent  facts,  admissible  in  proof  of  the  issue. 

§  101.  Reputation,  statements  as  facts.  Thus,  where  the  ques- 
tion is,  whether  the  party  acted  prudently,  wisely,  or  in  good 
faith,  the  information  on  which  he  acted,  whether  true  or  false, 
is  original  and  material  evidence.  This  is  often  illustrated  in 
actions  for  malicious  prosecution ;  ^  and  also  in  cases  of  agency 

2  Per  Marshall,  C.J.,  in  Mima  Queen  v.  Hepburn,  7  Cranch,  290,  295,  296  ;  Davis 
V.  Wood,  1  Wheat.  6,  8  ;  Rex  v.  Kriswell,  3  T.  R.  707. 

8  Bartlet  v.  Delprat,  4  Mass.  708  ;  Du  Best  v.  Beresford,  2  Campb.  511.  Under 
this  head,  it  has  been  held  that  where  one  claimed  to  have  procured  a  pistol  to  defend 
himself  against  the  attack  of  another,  upon  the  ground  of  certain  information  received 
from  others,  such  information  becomes  an  original  fact,  proper  to  be  proved  or  disproved 
in  the  case.     People  v.  Shea,  8  Cal.  538. 

1  Taylor  v.  Willans,  2  B.  &  Ad.  845.  So,  to  reduce  the  damages,  in  an  action  for 
libel.     Colman  v.  Southvvick,  9  Johns.  45. 

Haynes,  71  IST.  C.  79  ;  Campbell  v.  State,  any  declarations   by   himself  in  his  own 

8  1'ex.  App.  84  ;  Ashcraft  v.  De  Armond,  favor  to  a  third   party,  in  absence  of  the 

44  Iowa,  229  ;  Sussex  Peerage  Case,  11  CI.  other  party  to  the  suit,  are  in  general  mere 

&  Fin.  85,  p.   113;  Schooler  v.  State,  57  hearsay  and  not  admissible.     Whitney  ;,•. 

Ind.  127  ;  Stapylton   v.   Clough,  22  Eng.  Houghton,  125    Mass.    451  ;     Nourse    v. 

L.  &  Eq.   276;  2   El.  &  Bl.   933.     As  a  Nourse,     116      Mass.     101;      Woodward 

party  to  a  suit    cannot  rely   upon  state-  v.  Leavitt,  107    Mass.   453  ;   Treadway  v. 

ments  made  by  himself  in  his  own  favor,  Ti-eadway,  5  Bradw.  478  ;  Ward  v.  Ward, 

unless  he  takes  the  stand  as    a  witness,  37    Mich.    253  ;    Stephen,    Dig.   of  Evid. 

although  his  admissions  against  his  own  art.  15. 
interest  are  always  evidence  against  him. 


CHAP,    v.]  OF    HEARSAY.  147 

and  of  trusts.  So,  also,  letters  and  conversation  addressed  to  a 
person,  whose  sanity  is  the  fact  in  question,  being  connected  in 
evidence  with  some  act  done  by  him,  arc  original  evidence  to 
show  whether  he  was  insarfc  or  not.^  Tlie  replies  given  to  in- 
quiries made  at  the  residence  of  an  absent  witness,  or  at  the 
dwelling-house  of  a  bankrupt,  denying  that  he  was  at  home, 
are  also  original  evidence. ^((«)  In  these  and  the  like  cases,  it  is 
not  necessary  to  call  the  persons  to  whom  the  inquiries  were 
addressed,  since  their  testimony  could  add  nothing  to  the  credi- 
bility of  the  fact  of  the  denial,  which  is  the  only  fact  that  is 
material.  This  doctrine  applies  to  all  other  communications, 
wherever  the  fact  that  such  communication  was  made,  and  nut 
its  truth  or  falsity,  is  the  point  in  controversy.'*  Upon  the  same 
principle,  it  is  considered  that  evidence  oi  general  reputation^  {b) 

2  Wheeler  v.  AMerson,  3  Hagg.  Eccl.  574,  608  ;  Wright  v.  Tatham,  1  Ad.  &  El.  3, 
8  ;  s.  c.  7  Ad.  &  El.  313  ;  s.  c.  4  Bing.  N.  C.  489.  Whether  letters  addressed  to  the 
person  whose  sanity  is  in  issue  aie  admissible  evidence  to  jirove  how  he  was  treated 
by  those  who  knew  him,  without  showing  any  lejiiy  on  his  part,  or  any  other  act  con- 
nected with  the  letters  or  their  contents,  was  a  (pu-stion  much  discussed  in  Wright  i-. 
Tatham.  Their  admi.ssibility  was  strongly  urged  as  evidence  of  the  manner  in  which 
the  person  was  in  fact  treated  by  tliose  who  knew  him  ;  but  it  was  replieii,  that  the 
effect  ot"  the  letters,  alone  considered,  was  only  to  show  what  weie  the  opimuus  ot  tiie 
writers ;  and  that  mere  opinions,  upon  a  distinct  fact,  were  in  general  inadmissible  ; 
but,  whenever  admissible,  they  must  be  proved,  like  other  facts,  by  the  witness  him- 
self under  oath.  The  letters  in  this  case  wt^re  admitted  by  Gurney,  B.,  who  held  the 
assizes  ;  and  u])on  error  in  the  E.^cbetpier  Chamber,  four  of  the  learned  judges  deemed 
them  rightly  admitted,  and  three  thought  otherwise  ;  but  the  point  was  not  decided,  a 
venire  de  novo  being  awarded  on  another  ground.  See  1  Ad.  &  El.  3  ;  and  7  Ad.  <S:  El. 
329.  Upon  the  new  trial  before  the  same  judge,  the  letters  were  again  received  .  and 
for  this  cause,  on  motion,  a  new  trial  was  granted  by  Lord  Dennian,  C.  J.,  and  J.it- 
tledale  and  t'oleiidge,  JJ.  The  cause  was  then  again  tried  before  Coleridge,  J.,  who 
rejected  the  letter,  and  e.xceptions  being  taken,  a  writ  of  error  was  again  brought  in 
the  E.xchequer  Chamber  ;  where  the  si.x  learned  judges  jue-sent,  being  divided  eipially 
upon  the  (piestion,  the  judgment  of  the  King's  Bench  was  affirmed  (see  7  Ad.  &  El. 
313,  408),  and  tins  judgment  was  afterwards  alhimed  in  the  House  of  Lords  (see  4 
Bing.  N.  C.  489)  ;  a  large  majority  of  the  learned  judges  concurring  in  o]>inion  that 
letters  addressed  to  the  party  were  not  admissible  in  evidence,  unless  connected,  by 
proof,  with  some  act  of  his  own  in  regard  to  the  letters  themselves,  or  their  contents. 

3  Crosby  v.  Percy,  1  'I'aunt.  364  ;  Moigan  v.  jMorgan,  9  Bing.  359  ;  Sumner  v.  Wil- 
liams, 5  Ma.ss.  444  ;  PeDetreau  v.  Jackson,  11  Wend.  110,  123,  124  ;  Key  v.  Shaw,  8 
Bing.  320  ;  Phelps  v.  Foot,  1  Conn.  387. 

4  Whitehead  v.  Scott,  1  Moo.  &  R.  2  ;  Shott  v.  Streatfield,  Id   8  ;  1  Ph.  Evid.  188. 

(a)  So  if  the  issue  is  upon  the  bankrupt  the  acts.      Such    declarations  are   a  part 

having  absconded,  his  declarations  as  to  his  of  the  tcs  tjestce.    They  accompany  tlie  act, 

intention  to  return,  made  at  his  departure  the  nature,  object,  or  motive   of  which  is 

from  his  place  of  business,  are  admissible,  a   proper   subject  of  imiuiry.      They  are 

United  States   v.   Penn,    13  Bankr.   Reg.  verbal  act.s,  and  as  such  are  legal  eviilence 

464.     So  if  the  question  is  whether  one  is  of  tlie  intention."    Etna  c.  Brewer,  78  Me. 

"avoiding  or  evading  "  civil  jirocess,  an-  379. 

swers  given   at   his  residence  to   persons  V>)  On  this  subject.  Lord  J.,  in  Walker 

calling  there  to  .serve  process  are  admissi-  v.  Moors,  122  Mass.  501,  bays:  "The  dis- 

ble.      Buswell    v.     Lincks,    8    Daly    (N.  tinction  between  rqnUatwn  and   hcarsni/ 

Y.),    518.       "When    the   intention    of  a  ct-K^c/itr  is  sometimes  difficult  as  a  jiractical 

person  is  relevant,  that  intention  may  be  question,  and  is  not  always  kept  clearly  in 

shown  by  his  declarations  at  the  time  of  mind  in  the  introduction  of  testimony  upon 


148 


LAW   OF   EVIDENCE. 


[part  II. 


reputed  otvnersJnp,  public  rumor,  general  notoriety,  and  the  like, 
though  composed  of  the  speech  of  third  persons  not  under  oath, 
is  original  evidence,  and  not  hearsay;  the  subject  of  in(juiry  be- 
ing the  concurrence  of  many  voices  to  the  same  fact.^ 

§  102.  Expressions  of  feeling.  Wherever  the  bodily  or  mental 
feelings  of  an  individual  are  material  to  be  proved,  the  usual  ex- 
pressions of  such  feelings,  made  at  the  time  in  question,  are  also 
original  evidence.  If  they  were  the  natural  language  of  the  affec- 
tion, whether  of  body  or  mind,  they  furnish  satisfactory  evidence, 
and  often  the  only  proof  of  its  existence,  {a)  And  whether  they 
were  real  or  feigned  is  for  the  jury  to  determine.  Thus,  in  ac- 
tions tor  criminal  conversation,  it  being  material  to  ascertain 
upon  what  terms  the  husband  and  wife  lived  together  before  the 

5  Foulkes  V.  Sellway,  3  Esp.  236  ;  Jones  v.  Perry,  2  Esp.  482  ;  Rex  v.  Watson,  2 
Stark.  116  ;  Bull.  N.  P.  296,  297.  And  see  Hard  v.  Brown,  18  Vt.  87.  Evidence  of 
reputed  ownership  is  sehloni  admissible,  except  in  cases  ot  bankruptcy,  by  virtue  of 
the  statute  of  21  Jac.  I.  c.  19,  §  11  ;  Gurr  v.  Rutton,  Holt's  N.  P.  Cas."327  ;  Oliver  v. 
Bartlett,  1  Brod.  &  Bing.  269.  (t)  Upon  the  question,  whether  a  libellous  painting 
was  made  to  ie])rebent  a  certain  indivi(lual,  Lord  Ellenborough  jjerniitted  the  declara- 
tions of  the  spectators,  while  looking  at  the  picture  in  the  exhibition-ioom,  to  be  given 
in  evidence.     Du  Bost  v.  Beresford,  2  Cainpb.  512. 


a  trial.  General  rejoiUalion  is  a.  fart ;  the 
mere  declaration  of  one  or  many  is  hearsay. 
It  does  not  require  a  multitude  of  witnesses 
to  prove  the  fact  that  there  is  a  general 
reputation  upon  a  particular  subject.  The 
question  is  a  simple  one  of  fact.  Is  there 
a  general  reputation  ^  Has  the  subject 
been  so  much  discussed  and  considered  that 
there  is  in  the  public  mind  a  uniform  and 
concurrent  sentiment  which  can  be  stated 
as  a  fact  ?  By  the  j)ublic  mind,  of  course, 
is  not  meant  the  mind  of  the  whole  public, 
but  of  that  ])ortion  ot  the  public  which  is 
cognizant  of  and  interested  in  the  matter 
of  in(juiry.'' 

(c)  Evidence  of  the  general  reputation 
of  a  merchant  ain(jng  his  fellow  merchants, 
as  to  the  fact  of  his  solvency  seems  to  be 
freely  admitted.  Tiius  the  fact  that  a 
debtor  was  reputed  insolvent  at  the  time 
of  an  alleged  fraudulent  preference  of  a 
creditor  is  competent  evidence  tending  to 
show  that  his  ))referred  creditor  liad  rea- 
sonable cause  to  'believe  hini  insolvent. 
Lee  0.  I^ilburn,  3  Gray  (Mass.),  594.  And 
the  fact  that  he  was  lu  good  repute  as 
to  property,  may  likewise  be  jiroved,  to 
show  tliat  such  a  creditor  had  not  reason- 
able cause  to  believe  him  insolvent.  Bart- 
lett V.  Decreet,  4  Id.  113  ;  Hey  wood  v. 
Keed,  Id.  574.  In  both  ca.ses  the  testi- 
mony is  admissible  on  the  ground  that  the 
belief  of  men  as  to  matters  of  which  they 
have  not  personal  knowledge  is  reasonably 


supposed  to  be  affected  by  the  opinions  of 
others  who  are  about  them.  See  also  Car- 
penter V.  Leonard,  3  Allen  (Mass.),  32; 
and  Whitcher  v.  Shattuck,  Id.  319. 

(«)  Exclamations  of  pain  are  admissible 
to  prove  the  existence  of  pain.  Insurance 
Co.  V.  Mosley,  8  Wall.  (U.  S.)  397  ;  Bacon 
V.  Charlton,  7  Cush.  (Mass.)  581  ;  Hatch 
i).  Fuller,  131  Mass. 574  ;  States.  Howard, 
32  Vt.  380  ;  Samlers  v.  Fteister,  1  Dak. 
Terr.  3  51  ;  Elliott  u.  Van  Buren,  33  Mich. 
49;  Towle  v.  Blake,  43  N.  H.  92  ;  Taylor 
V.  Grand  Trunk  R.  R.  Co.,  Id.  304  ;  Rog- 
ers  V.  Crain,  30  Tex.  284.  In  Grand  Rap- 
ids, &c.  R.  R.  Co.  V.  Huntley,  38  Mich. 
537,  it  wa.s  lield  that  expressions  of  pain 
uttered  during  an  examination  by  physi- 
cians, made  tor  the  express  purpose  of 
enabling  them  to  testify  in  a  suit  which 
was  already  begun  and  was  based  on  the 
injury  causing  the  pain,  were  inadmissible. 
It  seems  that  these  invalidating  facts  ap- 
plied more  properly  to  the  credibility  of 
the  evidence  after  it  was  in,  than  to  its 
wiiipdcncij.  Murjihy  v.  New  York,  &c. 
i;.  R.  Co.,  66  Barb.  (N.  Y.)  125. 

The  natural  expressions  of  disgust  at  an 
otlensive  smell  are  admissible  in  an  action 
for  a  nuisance.  Kearney  v.  Farell,  23  Conn. 
317.  Exclamations  tending  to  show  the 
existence  of  'niuHce  are  also  admi.ssible  to 
])rove  malice.  Terrell  v.  Com.,  13  Bush 
(Ky.),  246. 


CHAP,    v.]  OP   HEARSAY.  149 

seduction,  their  language  and  deportment  towards  each  other, 
their  correspondence  together,  and  their  conversations  and  cor- 
respondence with  third  jjcrsons,  arc  original  evidence.^  But,  to 
guard  against  the  abuse  of  this  rule,  it  has  been  held,  that,  be- 
fore the  letters  of  the  wife  can  be  received,  it  must  be  proved  that 
they  were  written  prior  to  any  misconduct  on  her  part,  and  when 
there  existed  no  ground  for  imputing  collusion,^  If  written  after 
an  attempt  of  the  defendant  to  accomj)lish  the  crime,  the  letters 
are  inadmissible. ^  Nor  are  the  dates  of  the  wife's  letters  to  the 
husband  received  as  sufficient  evidence  of  the  time  when  they 
were  written,  in  order  to  rebut  a  charge  of  cruelty  on  his  part; 
because  of  the  danger  of  collusion.'*  (b)  So,  also,  the  representa- 
tion by  a  sick  person  of  the  nature,  symptoms,  and  effects  of  the 
malady  under  which  he  is  laboring  at  the  time,  are  received  as 
original  evidence.  If  made  to  a  medical  attendant,  they  are  of 
greater  weight  as  evidence;  but,  if  made  to  any  other  person, 
they  are  not  on  that  account  rejected,  ^(c)     In  prosecutions  for 

J  Trelawripy  v.  Colman,  2  Stark.  191  ;  s.  c.  1  Barn.  &  Aid.  90  ;  Willis  v.  Bernard, 
8  Bing.  376  ;  Elsam  v.  Faucett,  2  Esp.  .562  ;  Winter  v.  Wroot,  1  Moo.  &  It  404  ;  GU- 
chnst^v    Bale,  8  Watts,  355  ;  Thomjisoti  v.  Trevanion,  Skin.  402. 

2  Edwards  v.  Crock,  4  Esp.  39  ,  Trelawney  v.  Coliuan,  1  Baru.  k  Aid.  90  ;  1  Phil. 
Evid.  190. 

3  Wilton  V.  Webster,  7  C.  &  P.  198. 

*  Huuhston  V.  Smvthe,  2  C.  &  P.  22  ;  Trelawney  v.  Colman,  1  Barn.  &  Aid.  90. 
5  Aveson  v.  Lord  Kinnaird,  6  East,  188  ;  1  Ph.  Evid.  191  ;  Grey  u.  Young,  Harp. 
38  i  Gilchrist  v.  Bale,  8  Watts,  355. 

{h)  And  where,  in  an  action  aj;ainst  a  statements    are   otherwise   admissible,    as 

husband  for  the  board   of  his   wife,    the  part  of  the  res  qasloe.     Roosa    v.    Boston 

plaintiff  had  introduced  testimony  tending  Loan  Co.,   132    Mas.s.    430;    Morrisey   v. 

to  show  a  certain  state  of  mind  on  the  j)ait  Ingham,  111  Id.  63  ,  Ashland  v.  Marlbor- 

of  the  wife,  her  declarations  to  third  per-  ough,  99  Id.  47  ;  Dundas  i-.    Lansing,  75 

sons   on   that   subject,   expressive   of   her  Mich.  502  ;  Mayo  v.  Wright,  63  Mich.  40  ; 

mental  feelings,  are  admissible  in  favor  of  Collins  v.   Waters,   54    111.   485;    Illinois 

the   husband.     Jacobs   «.    Whitcomb,    10  Central  R.  R  Co.  v.  Sutton,  42  Id.  438  ; 

Gush.   (Mass.)  255.  Grand  Rapids,  &c.  R.  K.   Co.  v.   Huntley, 

(c)   Fav    V    Harlan,    128    Mass.    244;  38   Mich.  537  ;  Denton   v.   State,  1    Swan 

Bacon  v.  Charlton,  7  Cush.   (Mass.)  581  ;  (Tenn.),  279  ;  Smith  v.  State,  53  Ala.  486. 

Earl  V.   Tupper,    45    Vt.    275;    State    v.  In  Barber  v.  Merriam,  11  Allen  (Mass.), 

Howard,   32  Vt.  380  ;    Matteson  v.    New  322,  the  Court  uses  language  which  would 

York,  &c.    R.    R,   Co.,  62  Barb.  (N.  Y. )  seem  to  imply  that  the  declarations  were 

364  ;  s.  c.  35  N.  Y.  487  ;  Taylor  v.  Rail-  admissible  as  io  past  events,  when  made  to 

way  Co.,  48  N.  H.  309;  Norris  v.  Haver-  a  pkijsicum,    for   medical    advice.      It   is, 

hill,  65  N    H    89  ;  Gray  v.  McLaughlin,  however,  an  o6(/:er  (/ic<w»t  in  that  case,  and 

20  Iowa,  279.     The  rule  admits,  however,  the  general  current  of  authority  is  contrary, 

only  exclamations  of  present  pain  or  state-  There  are,  however.  States  in  which  a  dif- 

ments  of   present   symptoms.     All    state-  ferent  rule  e.^i.-ts  in  regard  to  the  admissi- 

ments  made  by  the  .sick  person  relating  to  bility  of   relations  of   past  medical    facts 

past    transactions,    however   closely    they  relating  to  the  injury  and  symptoms  of  the 

may  be  connected  with  the  present  sick-  patient,  and  even  as  to  the  cause  of  the 

ness,  and  even  (it  is  held  in  most  States)  injury,  when  the  relations  are  made  to  a 

though    stating  the  cause  of  the  sickness  medical  expert  with  a  view  to  getting  treat- 

or  injury,  should  be  rejected  even  if  made  ment  for  the  injury  or  disease,  or  to  having 

to  a  physician   tor  treatment,  unless  the  the  nature  of  the  injury  or  disease  ascer- 


150 


LAW    OF    EVrOENCR. 


[part  II. 


rape^  too,  where  the  ]»arty  injured  is  a  witness,  it  is  material  to 

show  that  she  made   complaint  of  the  injury  while  it  was  yet 

tained.  Jii  those  States^  such  relatioos  of  testifying,  as  a  witness  in  his  own  behalf, 
jiast  siifl'eiinji;s,  feeliiijjs,  or  sj'mptoins,  are  would  lie  deprived  of  that  corroboration  of 
tlien  admissible.  'J'liiis  it  has  been  held  his  evidence  to  which  lie  is  justi}'' entitled, 
that  a  [ill ysician  may  tes.tiry  to  a  statement  Evidence  may  be  given  that  a  jierson  ap- 
nr  narrative  j/iven  by  a  patient  in  relation  peaied  to  be  in  great  agony  ;  was  emaci- 
to  his  condition,  symptoms,  sensations,  and  ated,  looked  haggard  and  feeble,  and  why 
leelings,  bolh  past  and  present,  and  even  not  that  he  screamed  from  jiain  ?  Whether 
the  cause  of  the  injury  or  disease,  when  such  such  exclamations  were  real  or  feigned,  is 
statements  were  received  during  treatment,  always  to  be  determined  by  the  jury  ;  and 
and  were  necessary  to  an  exaininatiou  hence,  this  is  a  very  safe  species  of  evi- 
with  a  view  to  treatment,  or  when  they  are  deuce  to  be  received.  So,  too,  the  absence 
necessary  to  enable  him  to  give  his  opinion  of  such  exclamations  with  other  appear- 
as  an  expert  witness.     Quaife  v.  Chicago,  ances,  may  be  proved  as  a  riicumstance 


&c.  R.  W.  Co.,  48  Wis.  513  ;  Cleveland, 
Col.  C.  &  Ind.  K  R.  Co.  v.  Newell.  104 
Ind.  269  ;  Louisville,  New  All..  &  Chic. 
R.  R.  Co.  V.  Faivev.  104  Ind.  416. 

The  existence  of  the  rule  admitting  any 


bearing  upon  the  question  of  suffering.'' 
Following  the  indications  of  this  case,  the 
New  York  Court  of  Ap[)eals  in  a  later 
case  has  gone  still  farther  and  excluded 
com]ilaints  of  present  pain  made  some  days 


exclamations  of  pain,  etc.,  is  based  ujion  after  the  injury.     Roche  v.  Brookivn  City 

the  necessity  of  such  evidence  from  the  la-  &  Newtown  R.  R.  Co.,  105  N.  Y.  296.     In 

tent  nature  of  the  facts  ])roved  by  it.     The  this  case  the  testimony  of  a  third  )>arty  was 

rule  allowing  parties  to  te.stify  in  their  own  introduced,  subject  to  exception,  that  the 

behalf  has  therefore  had  a  great  effect  u[)on  plaintiff,  some  days  after  the  hajijieniiig  of 


the  rule  now  under  discussion.  In  New 
York,  this  point  has  recently  been  thor- 
oughly gone  into  and  the  rule  much  lim- 
ited by  various  cases,  the  rule  as  now 
existing  m  that  State  admitting  only  such 
involuntary  expressions  of  pain  as  scream- 
ing and  the  like.  A  very  suggestive  dis- 
cussion of  this  species  of  evidence  is  given 
in  the  opinion  of  the  court  in  Hagenlocher 
V.  Coney  Isl.  k  B.  R.  R.  Co.,  99  N.  Y.  137. 
' '  Screaming  or  some  similar  exclamation 


the  accident  which  caused  her  injury,  com- 
plained that  she  was  sutfenng  pam  in 
her  injured  arm.  The  witness  did  not 
testify  that  on  these  occasions  the  plain- 
tiff screamed  or  groaned  or  gave  other 
manifestations  of  a  seemingly  involuntary 
nature  and  indicative  of  bodilv  suffering, 
but  he  jiroved  simple  statements  or  declar- 
ations made  by  ])laintiff,  that  she  was,  at 
the  time  of  making  them,  sufl'ering  pain  in 
her  arm.     The  plaintiff  was  herself  sworn. 


is  the  natural  language  of  jiain  in  all  men,     and  proved  the  injury  and  the  pain.     The 


and  m  all  animals  as  well.  It  usually,  and 
almost  invariably,  accompanies  intense 
pain  ;  and  hence,  such  exclamations  have 
always  been  received  as  competent  evi- 
dence, tending  to  show  suffering.  And  it 
is  said  to  be  original  evidence.     While  the 


condition  of  the  arm  the  night  of  the  acci- 
dent was  also  f)roved,  that  it  was  very  much 
swollen  and  black  all  around  it,  and  sub- 
sequently red  and  inflamed,  and  continued 
swollen  more  or  less  for  a  long  time.  The 
court  discussed  the   admissibility  of  the 


necessity  for  such  evidence  is  not  so  great     complaint  of  pain  as  follows  •    "  Prior  to 


faince  jiarties  have  been  permitted  to  be 
witnesses  in  their  own  behalf  as  it  was  be- 
fore, yet,  the  rule  allowing  such  evidence 
has  not  been  abrogated,  and  it  must  still 
have  operation.  The  person  injured  may- 
be dead,  or,  for  some  reason,  unable  to  tes- 
tify ;  and  in  such  cases,  certainly,  the  ne- 
cessity for  the  reception  of  such  evidence 
exists  now  as  formerly.  Although  the  in- 
jured person  is  a  witness  and  testifies  at 
the  trial,  the  exclamations  of  pain  made 


the  time  when  parties  were  allowed  to  be 
witnesses,  the  rule  in  this  class  of  cases 
permitted  evidence  of  this  nature.  Cald- 
well V  Murphy,  11  N.  Y.  416  ;  Werely  v. 
Persons,  28  N.  Y.  344.  These  cases  show 
that  the  evidence  was  not  confined  to  the 
time  of  the  injury  or  to  the  mere  exclama- 
tions of  pain.  The  admissibility  of  the 
evidence  was  put  in  an  opinion  of  Judge 
Denio,  in  11  N.  Y.  supra,  upon  the  neces- 
sity of  the  case  as  being  the  onlv  means  by 


by  such  person  may  be  proved  and  used  to  which  the  condition  of  the  sufferer,  as  to 

corroborate  other  evidence,  and  to  give  a  enduring  pain,   could  in   many  instances 

more   particular  and  vivid  description  of  be   proved.   .  .   .  After   the    adoption    of 

his  or  her  condition.     If  evidence  of  the  the  amendment  to    the  Code   permitting 

exclamations  which  are  the   natural  coa-  fiarties  to  be  witnesses,  the  question  under 

cornitants  and  signs  of  pain  and  suffering  discussion  was  somewhat  mooted  in  Reed 

were  excluded,   in   many  cases  the  party  v.  N.  Y.  C.  R.  R.  Co.  (45  N.  Y.  574),  by 


CHAP,    v.] 


OF    HEARSAY, 


151 


recent.     Proof  of  such  complaint,  therefore,  is  original  evidence; 


Allen,  J,,  in  the  course  of  his  ofiinion, 
although  the  pieciso  point  was  not  before 
the  court.  The  (juestion  there  under  dis- 
cussiou  was  .'is  to  the  correctness  of  per- 
niitting  the  plaintill  to  prove  his  declara- 
tions made  at  the  time  when  he  was  doing 
some  work,  to  a  third  person,  as  to  the 
state  of  his  health.  That  is  not  exactly 
like  the  case  of  complaints  made,  not  as  to 
a  state  of  health,  hut  as  to  a  then  present 
existing  [)ain  at  the  very  ypot  alleged  to 
have  sustained  injury,  and  juoved  so  by 
other  evidence  ;  still,  the  remarks  of 
Judge  Allen  on  this  kind  of  evidence  iu 
general,  bear  strictly  upon  the  matter 
herein  discussed.  He  reviewed  in  his  opin- 
ion some  of  the  above  cases  and  others,  and 
claimed  that  the  courts  had  admitted  the 
evidence  from  the  necessity  of  the  case  as 
being  the  only  method  iiv  which  the  con- 
dition of  the  party  could  bo  shown  fully 
and  completely,  not  only  as  to  appearances 
but  also  as  to  sufrcriiig.  Rut  there  was  no 
agreement  by  the  court  upon  that  branch 
of  the  case,  the  ludgraent  going  upon 
another  ground.  The  case  of  Hageulocher 
V.  Coney  F.  &  L5.  !?.  K.  Co.  (ii'J  N.  Y.  136), 
decides  that  even  since  the  Code,  evitlence 
of  exclamafions  indicative  of  |)ain  made  by 
the  party  inpired  is  admissible.  The  case 
does  not  confine  jiroof  of  these  exclama- 
tions to  the  time  of  the  injury.  .  .  . 
Having  thus  admitted  evidence  of  this 
kind  since  the  adoption  of  the  Code  amend- 
ment, f)ermitting  parties  to  be  witnesses, 
the  question  is,  whether  there  is  such  a 
clear  distinction  between  it  and  evidence 
of  simple  declarations  of  a  jtarty  that  he 
was  then  suffering  pain,  but  giving  no 
other  indications  thereof,  as  to  call  for  the 
adoption  of  a  dirterent  rule.  It  seems  to 
us  that  there  is.  Kvidenco  of  exclama- 
tions, groans,  and  screams,  is  now  per- 
mitted more  upon  the  ground  that  it  is  a 
better  and  clearer  and  more  vigorous  de- 
scription of  the  then  existing  pliy.sical 
condition  of  the  jiarty  by  an  eye-wii;nes.s, 
than  could  be  given  in  any  other  way  It 
characterizes  and  explains  such  condition. 
Thus  in  the  very  last  case  cited,  it  was 
shown  that  the  foot  was  very  much  swollen 
and  so  sore  that  the  sheet  couhl  not  touch 
it.  How  was  the  condition  of  soreness  to 
be  shown  better  than  by  the  statement  that 
when  so  light  an  article  as  a  sheet  touched 
the  foot  the  patient  screamed  with  jiain  ? 
It  was  an  involuntary  and  natural  exhibi- 
tion and  proof  of  the  existence  of  intense 
soreness  and  jiain  therefrom.  True,  it 
might  lie  simulated,  but  this  possibility  is 
not  strong  enough  to  outweigh  the  propri- 


ety of  permitting  such  evidence  as  fair, 
natural,  and  original,  and  coiroborative 
evidence  of  the  plaintill',  as  U>  his  then 
physical  condition.  Its  weight  and  pio- 
|)iiety  are  not  therefore  now  sustained  upon 
the  old  idea  of  the  necessity  of  (he  case. 
But  evidence  of  simple  declarations  of  a 
party  made  some  time  after  the  injury,  and 
not  to  a  ))hysiciaii  for  the  i)urpose  of  being 
attended  to  j-io(essioiially,  and  simply  mak- 
ing the  stalement  that  he  or  she  is  then 
sullering  pun,  is  evidence  of  a  totally  dif- 
ferent nature,  is ca.sily  stated,  liable  to  gross 
exaggeration,  ami  of  a  most  dangerous 
tendency,  while  the  former  necessity  for 
its  admission  has  wholly  ceased."  "  As  i.s 
said  by  Judge  Allen,  in  Keed  v.  N.  Y.  (.;. 
U.  C,  Co,  {supra),  ilie  ne.x^.ssity  forgiving 
such  declarations  in  evidence  where  the 
)iarty  is  living  and  can  be  sworn,  no  longer 
existing,  and  that  being  the  reason  for  its 
admission,  the  reason  of  the  rule  ceasing, 
the  rule  itself,  adopted  with  reluctance 
and  followed  cautiously,  shoulil  also  cease. 
With  the  rule  as  herein  announced,  there 
can  be  no  fear  of  a  dearth  of  evidence  as 
to  the  extent  of  the  injury  and  the  suffer- 
ing cau.sed  thereby.  The  party  can  hiin- 
spH'  be  a  witness  if  living  ;  and  if  ilead,  the 
sutfcriug  IS  of  no  moment  as  it  cannot  be 
compensated  for  in  an  acti(uj  by  the  per- 
.sonal  representative  under  the  statute,  and 
the  exclamations  of  pain,  the  groans,  the 
sighs,  the  screams,  can  still  be  admitted. 
But  we  are  ()uite  clear  that  the  bald  state- 
ment made  long  after  the  inpiry  by  the 
party,  that  he  suffers  from  pain,  ought 
not  to  be  admitted  as  in  any  degree  cor- 
roborative of  his  testimony  as  to  the  extent 
of  his  pain."  This  last  case  was  criticised 
in  a  recent  case  in  Indiana,  and  the  rea- 
soning and  decision  not  agreed  to.  Han- 
cock County  V.  Leggett,  115  Ind.  546. 
The  Indiana  court  says  as  follows  : 

"We  have  given  caiefiil  study  to  the 
case  of  Koclie  v.  Brooklyn,  &c.  R.  R.  Co., 
105  N.  Y.  294,  but  we  cannot  assent  either 
to  the  reasoning  or  the  conclusion  of  the 
court  in  that  ca.se.  It  is  conceded  by  the 
court  that  the  rule  was  that  such  declara- 
tions w(!ie  competent  until  the  enactment 
of  the  statute  ])erinitting  ))arties  to  be  wit- 
nesses ;  but  it  is  asserted  th.it  the  rule  was 
abrogated  by  that  statute.  It  seems  to  us 
that  if  the  law  once  was  that  such  declara- 
tions vveie  admissible,  it  was  not  in  the 
power  of  the  court  to  annul  it.  That  could 
only  be  done  by  legislation.  Where  a  stat- 
ute is  enacted  changing  the  common-law 
rule,  it  is  to  be  strictly  interpreted,  ami  is 
not  to  bo  extended  by  construction.     It  is 


152 


LAW    OF    EVIDENCF. 


[part  it. 


but  the  statement  of  details  and  circumstances  is  excluded,  it 
being  no  legal  {)roof  of  their  truth.^(<;^) 

§  103.  Relationship.  To  this  head  may  be  referred  much  of 
the  evidence  sometimes  termed  "hearsay,"  which  is  admitted  in 
cases  o'i pediyree.  Tlic  principal  question,  (a)  in  these  cases,  is 
that  of  the  parentage  or  descent  of  the  individual;  and,  in  order 
to  ascertain  this  fact,  it  is  material  to  know  how  ho  was  acknowl- 


«  1  East,  P.  C.  444.  445  ;  1  Hale,  P.  C,  633  ;  i  Russell  on  Crimes,  565  ;  Kex  »•. 
Clarke,  2  Stark.  241;  Lauf^liliii  v.  State,  18  Ohio,  99.  In  a  ]>rosecution  for  toiispirins 
to  assemble  a  lari^e  meeting;,  for  the  purjiose  of  excitiiif,'  terror  in  the  community,  the 
complaints  of  ftTror,  made  by  jiersons  professinji  to  be  alarmed,  were  )iei nutted  1o  !« 
j)roved  bv  a  witness  wiio  heard  them,  without  calling  the  persons  themselves.  Regina 
V.  Vincent,  9  C.  &  P.  275. 


an  ancient  and  well-known  rule  that  stat- 
utes in  derot;ation  of  the  common  law  must 
lie  strictly  construed.  It  would  be  a  jdain 
violation  of  this  lule  to  hold  that  a  statute 
chancrmr,'  the  one  rule  of  law  changed 
anotlier  ami  independent  one.  The  change 
in  the  rule  <loes  not  dissipate  the  leason. 
for  latent  injuries  can  only  be  known  by 
declaiations  made  at  the  time  the  injured 
person  is  sulfering.  But,  however  this 
may  be,  the  rule  is  an  established  one,  and 
as  courts  cannot  legislate,  they  have  no 
right  to  abrogate  it.  Judicial  legislation 
is  an  evil  to  be  avoided.  The  change  in 
the  law  worked  by  the  statute  does  not  de- 
prive a  party  of  any  competent  evidence. 
The  statute  adds  to  his  rights  ;  it  subtracts 
nothing  from  them.  Although  the  statute 
makes  the  jiaity  a  competent  witness,  it 
does  not  abridge  his  rights  by  taking  from 
him  evidence  competent  under  the  rules  of 
the  common  law.  We  cannot  agree,  we 
say,  in  leavincr  this  point,  that  a  party  is 
to  be  deprived  of  legitimate  evidence  be- 
cause till-  statute  ))ermits  him  to  testify." 
(d)  Reg.  V.  Megson,  9  C.  &  P.  421.  Mr. 
Ste])hen  (l)ig.  Kvid.  art.  8)  states  this 
principle  geiierallv  as  applicable  to  all 
crimes.  Rex  v.  Wink,  6  C.  &  P.  397. 
But  see  riavnes  v.  Coin.,  Sup.  VX.  Va. 
1877,  3  L.  &  Eq.  Kep.  699;  Peoj.le  v. 
JlcCiea,  32  fal.  98  ;  and  a  very  able 
discussion  of  the  subject  in  Amer.  Law 
Ileview,  vol.  14,  p.  817  ;  vol.  15,  i>p.  1,71. 
The  (fuestion  cannot  yet  be  said  to  be  set- 
tled whether  the  jmrlixiulars  of  the  coin- 
])laint  can  be  given  in  evidence.  That 
they  may  when  they  can  be  fairly  consid- 
ered part  of  the  res  qi'sUc  is  certain.  Reg. 
V.  Evre,  2  F.  &  V.  579.  Cf.  Keg.  v.  Wood, 
14  Co.K,  Cr.  Cas.  46.  When  tliey  are  not 
admissible  as  part  of  the  rea  (leaUf:,  the 
jiractice  is  usual  to  reject  them,  but  the 
opinious   of    several    learned    judges   are 


against  tlie  propriety  of  this  course.  Parke, 
B.,  in  Keg  v.  Walker,  2  Moo.  &  R.  212; 
Stephen.  Dig.  of  Evid.  note  V.  In  Con- 
necticut, the  particulars  of  the  complaint 
are  a<lmitted.  State  v.  De  Wolf,  8  Conn. 
93  ;  State  v.  Byrne,  47  Conn.  465.  :  In  New 
Yoik,  the  particulars  are  not  admitted, 
but  only  the  fact  of  conifilaint.  Bnnnio  v. 
People/41  N.  Y.  265,  Peojile  c.  O'SuUi- 
van,  104  N.  Y.  490.  As  to  how  lecent 
the  com|)laint  must  be,  theie  is  no  settli'd 
rule.  The  Court  decides  whether,  under 
the  circumstances  of  the  case,  the  com- 
]>laint  was  made  upon  the  first  oj)por- 
tunitv,  and  if  that  is  so,  the  fact  of 
complaint  is  admissible;  but  the  jury  may 
also  consider  the  time  elapsing  before  the 
complaint  is  made,  as  bearing  upon  the 
probability  of  its  truth.  Baccio  v.  People, 
supra;  People  D.  O'Sulli van,  s«/>r«;  Hig- 
gins  V.  People,  58  N.  Y.  377. 

(a)  Stephen  (Dig.  Evid.  art.  31)  says 
that  such  declaiations  are  admissible  only 
in  cases  in  whicli  the  pedigree  to  which  they 
relate  is  vi  issue,  and  not  to  those  in  whicli 
it  is  only  relevant  to  the  issue.  Whit- 
tuck  V.  Walters,  4  C.  &  P.  375.  This  is 
untloubledly  the  safer  rule,  but  is  not  uni- 
versally adopted,  e.  (j.  in  Massachusetts. 
Thu,s,  in  Noith  Brookheld  ?).  Warren.  16 
Gray,  174,  the  Court  said  :  "Some  of  the 
authorities  seem  to  limit  the  comf)eteucy 
of  this  species  of  ]iroof  to  cases  wlieie  the 
main  subject  of  iii<|uiry  relates  to  jiedigree, 
and  where  the  incidents  of  birth,  marriage, 
and  death,  and  the  times  when  these  events 
happened  are  put  directly  in  issue  ;  but 
upon  principle  we  can  sec  no  leason  for  such 
a  limitation.  If  this  evidence  is  admissi- 
ble to  jirove  such  facts  at  all,  it  is  eijually 
so  in  all  cases  whenever  they  become  le- 
gitimate subjects  of  judicial  iii([uiry  and 
investigation."'  Cf.  Hathaway  v.  Evans, 
113  Mass.  267. 


CHAP,    v.] 


OP   HEARSAY. 


153 


edged  and  treated  by  those  who  were  interested  in  him,  or  sus- 
tained towards  him  any  rchitions  of  blood  or  affinity.  It  was  hjng 
unsettled,  wliether  any  and  what  kind  of  relation  must  have  sub- 
sisted between  the  person  speakinj^  and  the  i)erson  whose  pedi- 
gree was  in  question;  and  there  are  reported  cases  in  which  the 
declarations  of  servants,  and  even  of  neighbors  and  friends,  have 
been  admitted.  But  it  is  now  settled,  that  the  law  resorts  to 
hearsay  evidence  in  cases  of  pedigree,  upon  the  ground  of  the 
interest  of  the  declarants  in  the  person  from  whom  the  descent 
is  made  out,  and  their  consequent  interest  in  knowiug  the  con- 
nections of  the  family.  The  rule  of  admission  is,  therefore,  re- 
stricted to  the  declarations  of  deceased  persons  who  were  related 
by  blood  or  marriage  to  the  person,  and,  therefore,  interested  in 
the  succession  in  question.  ^  {b)    And  (jeneral  repute  in  thefamili/, 

>  Vowles  r.  Young,  13  Ves.  140,  147  ;  Goodright  v.  Moss,  Cowp.  591,  594,  as  ex- 
pounded by  Loiil  Eldon,  in  Wlutelooke  v.  Baker,  13  Ves.  514  ;  Johnson  v.  Lawson,  2 
King.  8(3  ;  "iMonkton  v.  Attorney-General,  2  Kuss.  &  My.  147,  156  ;   Crease  v.  Barrett, 

1  Cr.  M.  &  K.  919,  928  ;  Casey  i;.  O'Shaunessy,  7  Jur.  1140  ;  Gregorys.  Baugli,  4 
Rand.  611  ;  Jewell  v.  Jewell.  1  How.  (S.  C.)  231  ;  s.  c.  17  Peters,  213  ;  Kaywood  v. 
Barnett,  3  Dev.  &  Bat.  91  ;  Jackson  v.  Browner,  18  Johns.  37  ;  Chapman  v.  Chapman, 

2  Conn.  347;  Waldron  v.  Tuttle,  4  N.  H.  371.  The  declarations  of  a  mother,  in  dis- 
paragement of  the  legitimacy  of  her  child,  have  been  received  in  a  question  of  succes- 
sion.    Hargrave  v.  Hargrave,  2  C.  &  K.  701. 


{b)  The  English  rule  is  said  to  be  that 
"the  declarations  must  be  made  by  a  de- 
clarant shown  to  be  legitimately  related  by 
hlood  to  the  person  to  whom  they  lelate,  or 
by  the  husband  or  wife  of  such  i)erson." 
Stephen,  Dig.  Evid.  art.  31  ;  Shrewsbury 
Peerage  Ca.se,  7  H.  L.  C.  26;  Breadalbane 
Case,  L.  K.  1  H.  L.  Sc.  182  ;  Hitchins 
V.  Eardley,  L.  K.  2  P.  &  M.  248  ;  Smith 
V.  Tebbitt,  L.  R.  1  P.  &  M.  354.  This 
statement  is  more  stringent  than  that 
of  Mr.  Greenleaf,  whose  rule  admits  jier- 
sons"  related  by  blood  or  marriage"  to 
the  declarant.  But  even  this  more  re- 
laxed statement  is  probably  not  the  law 
iu  some  States.  In  Carter  v.  Montgom- 
ery, 2  Tenn.  Ch.  228,  the  Court  say  this 
rule  is  not  the  law  in  Tennessee,  and  that 
while  the  English  rule  may  bo  the  most 
consonant  to  sound  princijde,  and  may 
answer  the  ends  of  justice  in  a  dense  pop- 
ulation and  settled  community,  yet  it 
scarcely  suffices  in  a  sparsely  inhabited 
community  with  a  migratory  and  rapidly 
changing  population.  Accoidmgly  evi- 
dence of  declarations  of  persons  not  so  le- 
lated  were  admitted.  To  the  same  elfect, 
are  Banert  v.  Day,  3  Wash.  C.  C.  243  ; 
Boudereau  v.  Montgomery,  4  Id.  186 ; 
Jackson  v.  Coolev,  8  Jolms.  (N.  Y.)  128  ; 
Pegraiu  v.    Isabell,    2   Hen.    &   M.    193  ; 


Walkup  V.  Pratt,  5  Harr.  &  J.  51.  '  But 
in  Blackburn  v.  Crawfords,  3  Wall.  185, 
where  C  died  leaving  land  which  was 
claimed  by  children  of  B,  who  had  been 
C's  mistress,  declarations  of  B's  sister, 
since  dead,  to  prove  B's  inairiage  with  G, 
were  rejected.  Cf.  Murray  v.  Milner,  L. 
R.  12  Ch.  Div.  845  ;  Cuddy  v.  Brown,  78 
111.  415  ;  Jones  v.  Jones,  36  Md.  447. 
A1.S0  Mooers  v.  Bunker,  29  N.  H.  42; 
Emerson  v.  White,  Id.  482,  Kelley  u. 
McGuire,  15  Ark.  555.  And  jjrobably 
the  tendency  of  Courts  at  the  present  day 
would  be  to  restrict  the  declarations  to 
those  of  members  of  the  family  near  or 
lemote  Boone  v.  Miller,  73  Tex.  564. 
The  declarations  must  have  been  made 
ante  litem  motam.  Hodges  v.  Hodges,  106 
N.  C.  374.  The  relationship  must  be 
established  by  evidence  dehors  the  declara- 
tions (ThomiKSon  v.  Wolf,  8  Oreg.  454)  ; 
and  declarant  must  be  dead.  Greenleaf  v. 
Dubuque,  &c.  R.  R.  Co.,  30  Iowa,  301  ; 
Northrop  v.  Hale.  76  Me.  309.  In  this 
last  case,  the  declarations  were  oHered  in 
a  question  of  the  validity  of  a  claim  of 
succession  to  property,  the  declarant  being 
an  aunt  of  the  claimant,  but  her  declara- 
tions being  that  he  was  au  illegitimate 
son. 


154  LAW   OF   EVIDENCE.  [PART   n. 

proved  by  the  testimony  of  a  survivini;-  member  of  it,  has  been 
considered  as  falling  within  the  nile.-(f) 

§  iU4.  Birth,  death,  marriage.  The  term  pedigree^  however, 
embraces  not  only  descent  and  relationship,  but  also  the  facts  of 
hlrth,  marriage,  and  death,  and  the  times  when  these  events 
happened.  These  facts,  therefore,  may  be  proved  in  the  manner 
above  mentioned,  in  all  cases  where  they  occur  incidentally,  and 
in  relation  to  pedigree.  Thus,  an  entry,  by  a  deceased  parent  or 
other  relative,  made  in  a  Bible,  family  missal,  or  any  other  book, 
or  in  any  document  or  paper,  stating  the  fact  and  date  of  the 
birth,  marriage,  or  death  of  a  child,  or  other  relative,  is  regarded 
as  a  declaration  of  such  parent  or  relative  in  a  matter  of  pedi- 
gree. ^  (a)     So,  also,  the  correspondence  of  deceased  members  of 

2  Doe  V.  Griffin,  15  East,  293.  There  is  no  valid  objection  to  such  evidence,  be- 
cause it  is  hearsay  upon  hearsay,  provided  all  the  declarations  are  within  the  family. 
Thus,  the  declarations  of  a  deceased  lady,  as  to  what  had  been  stated  to  her  by  her  hus- 
band in  his  lifetime,  were  admitted.  Doe  v.  Randall,  2  M.  &  P.  20;  Monkton  v.  Attorney- 
General,  2  Kuss.  &  My.  165  ;  Ball.  N.  P.  295  ;  Elliott  v.  Piersoll,  1  Pnters,  328,  337. 
It  is  for  the  judge  to  decide,  whether  the  declarants  were  "  members  ol  the  family  so  as 
to  render  their  evidence  admissible  ; "  and  for  the  jury  to  settle  the  fact  to  which  their 
declarations  relate.  Doe  v.  Davies,  11  Jur.  6U7  ;  10  Q.  B.  314.  In  regard  to  the 
value  and  weight  to  be  given  to  this  kind  of  evidence,  the  following  observations  of 
Lord  Langdale,  M.  R.,  are  entitled  to  great  consideration.  "  In  cases,"  said  he, 
"  where  the  whole  evidence  is  traditionary,  when  it  consists  entirely  of  family  reputa- 
tion, or  of  statements  of  declarations  n)ade  by  persons  who  died  long  ago,  it  must  be 
taken  with  such  allowances,  and  also  with  such  suspicions,  as  ought  rea.sonably  to  be 
attached  to  it.  When  family  reputation,  or  declarations  of  kindred  made  in  a  family, 
are  the  subject  of  evidence,  and  the  reputation  is  of  long  standing,  or  the  declarations 
are  of  old  date,  the  memory  as  to  the  source  of  the  reputation,  or  as  to  the  persons  who 
made  the  declarations,  can  rarely  be  characterized  by  perfect  accuracy.  What  is  true 
may  become  blended  with,  and  scarcely  distinguishable  from,  something  that  is  erro- 
neous ;  the  detection  of  error  in  any  part  of  the  statement  nece.ssarily  throws  doubt  upon 
the  whole  statement,  and  yet  all  that  is  material  to  the  cause  may  be  ])erfectly  true  ; 
and  if  the  whole  be  rejected  as  false,  because  error  in  some  part  is  proved,  the  greatest 
injustice  may  be  done.  All  testimony  is  subject  to  such  errors,  and  testimony  of  this 
kind  is  more  particularly  so  ;  and  however  difficult  it  may  be  to  di--cover  the  truth,  in 
cases  where  there  can  be  no  demonstration,  and  where  every  conclusion  which  may  be 
drawn  is  subject  to  some  doubt  or  uncertainty,  or  to  some  opposing  probabilities,  the 
courts  are  bound  to  adopt  the  conclusion  which  appears  to  rest  on  the  most  solid  foun- 
dation."    See  Johnston  v.  Todd,  5  Beav.  599,  600. 

1  Berkeley  Peerage  Cise,  4  Cam5)b.  401,  418  ;  Doe  i-.  Bray,  8  B.  &  C.  813  ;  Monkton 
V.  Attorney-General,  2  Russ.  &  My.  147  ;  Jackson  v.  Cooley,  8  Johns.  128,  131,  per 
Thompson,  J.  ;  Douglass  v.  Sanderson,  2  Dall.  116  ;  Slane  Peerage  Case,  5  Clark  & 
Fin.  24;  Carskadden  v.  Poorman,  10  Watts,  82,  Sussex  Peerage  Case,  11  Clark  &  Fin. 
85;  Watson  v.  Brewster,  1  Ban,  381.  And  in  a  recent  case  this  doctrine  has  been 
thought  to  warrant  the  admission  of  declarations,  made  by  a  deceased  person,  as  to 
where  his  family  came  from,  wheie  he  came  from,  and  of  what  place  liis  father  was 
designated.     Shields  i;.  Boucher,  1  De  Gex  &  .Smale,  40. 

(c)   Webb  V.  Richardson,  42  Vt.  465  ;  Alexander  i;.  Chamberlin,  1  Thomp.  &  C. 

Van  Sickle  t'.  Gibson,  40  Mich.  170;  Eaton  600.     So  common  lejmtation  in  the  fam- 

V.    Tallmadge,    24    Wis.    217.      See    also  ily  is  evidence  of  the  death  of  a  member 

Copes  V.  Pearce,  7  Gill,  247  ;  Clements  v.  (Anderson  v.  Parker,  6  Cal.  197  ;   Mason 

Hunt,  IJones  (N.  C),  400.  v.    Fuller,    45  Vt.    29,      Cf.   Redfield  on 

(«)    Breadalbane  Case,  L.  R.   1   H.    L.  Wills,  pt.  2,  §  1) ;  and  of  the  time  of  death. 

Sc.  182  ;   Betty  v.  Nail,  6  Ir.  C.  L.  17  ;  Morrill  v.  Foster,  33  N.  H.  379.     But  not 


CHAP,    v.] 


OF    HEARSAY 


155 


the  family,  recitals  in  family  deeds,  such  as  marriage  settle- 
ments, descriptions  in  wills,  and  other  solemn  acls,  are  original 
evidence  in  all  cases,  where  the  oral  declarations  of  the  parties 
are  admissible.^ (^>)  In  regard  to  recitals  of  pedigree  in  bills  and 
answers  in  Chancery,  a  distinction  has  been  taken  between  those 
facts  which  are  not  in  dispute  and  those  which  are  in  controversy ; 
the  former  being  admitted,  and  the  latter  excluded. ^  Recitals  in 
deeds,  other  than  family  deeds,  are  also  admitted,  when  corrobo- 
rated by  long  and  peaceable  possession  according  to  the  deed.* 

2  Ball.  N.  P.  233;  Neal  v.  Wilding,  2  Star.  1151,  per  Wri;;Iit,  J.  ;  Doe  v.  E.  of 
Pembroke.  11  East,  504  ;  Whitelocko  v.  Baker,  13  Ves.  514  ;  Elliott  v.  PiersoU,  1  Pet. 
323;  1  Ph.  Evid.  216,  217,  and  ))eerage  cases  there  cited.  In  two  recent  cases,  the 
recitals  in  the  deeds  were  held  admissible  only  against  the  parties  to  the  deeds ;  but  in 
neither  of  those  cases  was  the  party  proved  to  have  been  related  to  those  whose  pedi- 
gree was  recited.  In  Fort  v.  Clarke,  1  liuss.  601,  the  grantors  recited  the  death  of  the 
sons  of  John  Cormick,  tenants  in  tail  male,  and  d£clarrd  themselves  heirs  of  the  bodies 
of  his  daughters,  who  were  devisees  iu  remainder  ;  and  in  Slaney  v.  Wade,  1  Mylne  & 
Craig,  338,  the  grantor  was  a  mere  trustee  of  the  estate,  not  related  to  the  parties.  See 
also  Jackson  v.  Cooley,  8  Johns.  128  ;  Jackson  v.  Ku.ssell,  4  Wend.  543  ;  Keller  v. 
]Kutz,  5  S.  &  R.  251.  If  the  recital  in  a  will  is  made  after  the  fact  recited  is  in  con- 
troversy, the  will  is  not  admissible  as  evidence  of  that  fact.  Sussex  Peerage  Case,  11 
Clark  k  Fm.  85. 

3  Phil.  &  Am.  on  Evid.  231,  232,  and  the  authorities  there  cited.  JUx  jmrte  affida- 
vits, made  several  years  before,  to  prove  pedigree  by  official  requirement,  and  prior  to 
any  lis  mota,  are  admissible.  Hurst  v.  Jones,  1  Wall.  Jr.  373,  App.  3.  As  to  the 
effect  of  a  lis  mota  upon  the  admissibility  of  declarations  and  reputation,  see  infra, 
§§  131-134.(c) 

*  Stokes  V.  Dawes,  4  Mason,  263. 


of  the  age  of  the  deceased.  Albertson  v. 
Robeson,  1  Dall.  90,  Kidney  v.  Cock- 
burn,  2  Russ.  &  M.  168  ;  Robinson  v. 
Blakely,  4  Rich.  (S.  C.)  586.  Cf.  Roe  v. 
Kawliiigs,  7  East,  290. 

It  has  been  held  that  the  declarations  of 
a  deceased  parent  as  to  the  place  of  birth 
of  a  child  are  inadmissible.  R.  v.  Erith, 
8  East,  539  ;  Wilmington  v.  Burlington, 
4  Pick.  (.Mass.)  174;  Brooks  v.  Clay,  3 
A.  K.  Marsh.  (Ky.)545;  Tyler  v.  Flan- 
ders, 57  N.  H.  618.  Probably  the  true 
ground  of  refusing  such  evidence  is  that 
given  by  the  court  in  Union  v.  Plainfield, 
39  Conn.  563  ;  i.  e.  that  the  evidence  is 
admissible  only  in  cases  oi  pedigree,  which 
was  the  original  and  proper  limit  of  the 
lulo.  It  is  also  held  that  the  date  of  a 
I  ersou's  birth  may  be  testified  to  by  the 
|>eison  himself,  although  of  course  lij  must 
iVive  been  told  this  fact  and  his  evidence 
is  therefore  hearsay.  The  evidence  is  ad- 
mitted from  the  necessity  of  the  case,  and 
because  it  is  based  on  family  tradition  and 
a  person's  knowledge  of  himself.  Com.  v. 
Stevenson,  142  Mass.  466.  The  lecoid  of 
a  baptism  when  admissible  in  evidence  is 
evidence  of  the  date  of  baptism  but  not  of 


birth,  although  stated  therein.  Wihen 
('.  i^aw,  3  Starkie,  63  ;  Dums  v.  Donovan, 
3  Hagg  Ecc.  301;  Burghart  v.  Angerstein, 
6  Car.  &  P.  690  .  Kex  v.  Chii)ham,  4  Car. 
&  P.  29,  Rex  V.  North  Petlierton,  5  Barn. 
&  C.  508  ;  Durfee  v.  Abbott,  61  Mich.  476, 
See  also  post,  §  115,  note. 

{b)  Murray  v.  Milner,  L.  R.  12  Ch. 
Div.  845;  Blackburn  v.  Crawfords,  3  Wall. 
(U  S.)  185  ;  Pearson  v.  Pearson,  46  Cal. 
609  ;  Scharir  v.  Keener,  64  Pi.  St.  376. 

No  proof  of  the  handwriting  is  needed 
in  such  cases,  as  the  ac(iuiescence  of  the 
family    proves    the    authenticity    of    the 


Hubbard 


Lees,  L.    R.    1 


must    be    made 
lut  they  do  not 


statement. 
Ex.  25ii. 

((•)  The  declarations 
prior  to  any  lis  niotu,  ' 
cease  to  be  admissible  because  they  were 
made  for  the  purpose  of  preventing  the 
question  fiom  arising.  Stephen,  Dig.  of 
Evid.  art.  31.  Berkeley  Peerage  Case, 
4  Campb.  401-417  ;  CaujoUe  v.  Ferrie,  23 
N.  Y.  91  ;  Butler  v.  Mountgarret,  7  H. 
L.  C.  633  ;  Shedden  v.  Patrick,  2  Sw. 
&  Tr.  170  ;  Hill  v.  Hibbit,  19  W.  K. 
250. 


156  LAW   OP   EVIDENCE,  [PART  II. 

§  105.  Inscriptions.  Inscriptions  on  tombstones,  and  other  fu- 
neral mo)iuments,  engravings  on  rings,  inscriptions  on  family  por- 
traits, charts,  or  pedigree,  and  the  like,  are  also  admissible,  as 
original  evidence  of  the  same  facts.  Those  which  are  proved  to 
have  been  made  by  or  under  the  direction  of  a  deceased  relative 
are  admitted  as  his  declarations  But  if  they  have  been  publicly 
exhibited  and  were  well  known  to  the  family,  the  publicity 
of  them  supplies  the  defect  of  proof,  in  not  showing  that  they 
were  declarations  of  deceased  members  of  the  family;  and  they 
are  admitted  on  the  ground  of  tacit  and  common  assent.  It  is 
presumed,  that  the  relatives  of  the  family  would  not  permit  an 
inscription  without  foundation  to  remain ;  and  that  a  person 
would  not  wear  a  ring  with  an  error  on  it.^(a)  Mural  and  other 
funeral  inscriptions  are  provable  by  copies,  or  other  secondary 
evidence,  as  has  been  already  shown.  ^  Their  value,  as  evidence, 
depends  much  on  the  authority  under  which  they  were  set  up, 
and  the  distance  of  time  between  their  erection  and  the  events 
they  commemorate.^ 

§  106.  Family  conduct.  Under  this  head  may  be  mentioned 
family  conduct,  such  as  the  tacit  recognition  of  relationship,  and 
the  disposition  and  devolution  of  property,  as  admissible  evi- 
dence, from  which  the  opinion  and  belief  of  the  family  may  be 
inferred,  resting  ultimately  on  the  same  basis  as  evidence  of 
family  tradition.  Thus,  it  was  remarked  by  Mansfield,  C.  J., 
in  the  Berkeley  Peerage  Case,^  that  "  if  the  father  is  proved  to 
have  brought  up  the  party  as  his  legitimate  son,  this  amounts  co 
a  daily  assertion  that  the  son  is  legitimate."  And  Mr.  Justice 
Ashhurst,  in  another  case,  remarked  that  the  circumstance  of 
the  son's  taking  the  name  of  the  person  with  whom  his  mother, 

1  Per  Lord  Erskine,  in  Vowels  v.  Young,  13  Ves.  144  ;  Monk  ton  v.  Attornfy- 
General,  2  Rus.  &  Mylne,  147,  Kidney  v.  Cockbiirn,  Id.  167  ;  Canioys  Peerage,  6  CI. 
&  Fin.  789.  An  ancient  pedigree,  purporting  to  have  Ijeen  LoUected  from  histort/,  as 
well  as  from  other  sources,  was  held  admissible,  at  least  to  show  the  relationship  of  per- 
sons described  by  the  frainer  as  living,  and  theielore  to  be  piesuuied  as  known  to  him. 
Davies  v.  Lowndes,  7  Scott,  N.  P.  141.  Arnioiial  bearings,  pioved  to  have  existed 
while  tlie  heralds  had  the  power  to  punish  usiiipation.s,  possessed  an  official  weight  and 
credit.  But  this  authority  is  thought  to  have  ceased  with  the  last  herald's  visitation, 
in  1686.  See  1  Phil.  Evid  224.  At  present  they  amount  tu  no  moie  than  family 
declarations. 

2  iiupra,  §  94. 

3  Some  remaikable  mistakes  of  fact  in  such  inscriptions  are  mentioned  in  1  Phil. 
Evid.  222. 

4  4  Campb.  416. 

(a)  In    North    Brookfield    v.    Warren,  well   as   an   inscription  on   a   tombstone. 

16  Gray  (xMass.),   174,  a  chart  of  births,  Cf.  Shrewsbury  Peerage  Case,  7  H.  L.  C.  1; 

deaths,  &c.,  kept  by  the  deceased  hung  Eastman  v.  Maitm,  19  N.  H.  152;  Haslam 

up  openly  in  the  Louse  was  admitted,  as  v,  Cron,  ly  W.  U.  968. 


CHAT,    v.]  OF   HEARSAY.  157 

at  the  time  of  his  birth,  lived  in  a  state  of  adultery,  which  name 
he  and  his  descendants  ever  afterwards  retained,  "was  a  very 
stron,£?  family  recognition  of  his  illegitimacy.  "'^  (a)  So,  the  dec- 
larations of  a  person,  since  deceased,  that  he  was  going  to  visit 
his  relatives  at  such  a  place,  have  been  held  admissible  to  show 
that  the  family  had  relatives  there. "^ 

§  107.  Marriage.  It  is  frequently  said,  that  general  reputation 
is  admissible  to  prove  the  fact  of  the  marriage  of  the  parties 
alluded  to,  even  in  ordinary  cases,  where  pedigree  is  not  in  ques- 
tion. In  one  case,  indeed,  such  evidence  was,  after  verdict,  held 
sufficient,  prima  facie,  to  warrant  the  jury  in  finding  the  fact  of 
marriage,  the  adverse  party  not  having  cross-examined  the  wit- 
ness, nor  controverted  the  fact  by  proof. ^  But  the  evidence  pro- 
duced in  the  other  cases  cited  in  support  of  this  position  cannot 
properly  be  called  hearsay  evidence,  but  was  strictly  and  truly 
original  evidence  of  facts  from  which  the  marriage  migiit  well  be 
inferred;  such  as  evidence  of  the  parties  being  received  into 
society  as  man  and  wife,  and  being  visited  by  respectable  fami- 
lies in  the  neighborhood,  and  of  their  attending chuich  and  j)ul)lic 
places  together  as  such,  and  otherwise  demeaning  themselves  in 
pul}lic,  and  addressing  each  other  as  persons  actually  married. ^  (b) 

§  108.  Res  gestae.  There  arc  other  declarations  which  are  ad- 
mitted as  original  evidence,  being  distinguished  from  hearsay  by 
their  connection  with  the  principal  fact  under  investigation. 
The  affairs  of  men  consist  of  a  complication  of  circumstances  so 
intimately  interwoven  as  to  1)C  hardly  separable  from  each  other. 
Each  owes  its  birth  to  some  i)receding  circumstance,  and,  in  its 
turn,  becomes  the  prolific  parent  of  others;  and  each,  during  its 
existence,  has  its  inseparable  attributes,  and  its  kindred  facts, 
materially  affecting  its  character,  and  essential  to  be  known  in 
order  to  a  right  understanding  of  its  nature.  These  surrounding 
circumstances,  constituting  parts  of  ihe  res  gestce,  may  always  be 

2  Goodright  V  Saul,  4  T.  R.  356. 

3  Kidhton  V.  Nesbitt,  2  iMoo.  &  K.  554. 

1  Evans  v.  Morf^an,  2  C  &  J.  4.'J3. 

2  1  Phil.  Evid.  234,  235  ,  Hervey  v.  Hervey,  2  W.  Bl  877;  Birt  v-  Barlow,  Doug. 
171,  174;  Read  v.  Passer,  1  Esp  213;  Leader  r.  Barry,  Td.  353;  Do.;  v.  Fleming, 
4  Bing.  266  ;  Smith  v.  .Smith,  1  Phiilini.  294  ;  Ilammick  v.  Bron.son,  5  Day,  290, 
293  i  III  re  Taylor,  9  Paige,  611. 

(a)  So,  a  marked  differencp  in  the  treat-  106  ;  Goodman  v.  Goodman,  28  L  J.  Ch. 

raent  of  the  bastard   and    the    legitimate  745  ;  Hojigan  v.  Craigie,  1    MuL.  &  Rob. 

children  is  a  fact  for  con.sideration.     Mur-  942;    Breadalbane  Case,   L.    R.    i    H-    E. 

ray  v.  Milner,  L.  R.  12  Ch.  Div    845.  So  182  ;  Clayton  v.  Wardell,  4  N.  Y.  230, 

{h)  Murray  v.   Milncr,  L.    R.   12  Ch.  Cf  post,  vol.  ii.  §§  461,  462. 
Div.  845;  Lyle  v.  Ellwood,  L.  Ji    19  Eq. 


158  LAW    OF    EVIDENCE.  [PART    II, 

shown  to  the  jury,  alon<^  with  the  principal  fact;  and  their  ad- 
missibility is  determined  by  the  judge,  accordmg  to  the  degree 
of  their  relation  to  that  fact,  and  in  the  exercise  of  his  sound 
discretion;  it  being  extremely  difticult,  if  not  impossible,  to  bring 
this  class  of  cases  within  the  limits  of  a  more  particular  descrip- 
tion. ^  (a)  The  principal  points  of  attention  are,  whether  the 
circumstances  and  declarations  offered  in  proof  were  contempo- 
raneous with  the  main  fact  under  consideration,  and  whether 
they  were  so  connected  with  it  as  to  illustrate  its  character. ^(Z)) 

1  Per  Park.  J.,  in  Rawson  v.  Haigh,  2  Biiic  104  ;  Ridley  v.  Gyde,  9  Bing.  349, 
352  ;  Pool  V.  Bridges,  4  Pick.  379  ;  Allen  v.  Duncan,  11  Pick.  309. 

On  the  trial  of  an  action  brought  by  a  princijjal  against  an  agent  who  had  charge 
of  certain  business  of  the  principal  for  many  years,  to  recover  money  received  by  the 
defendant  from  clandestine  sales  of  property  of  the  ))laintirt,  and  money  of  the  jdainlitl" 
fraudulently  taken  by  the  defendant,  evidence  that  the  defendant  at  the  time  of  enter- 
ing the  plaintilFs  service  was  insolvent,  and  that  he  had  since  received  onl}'^  a  limited 
salary  and  some  small  additional  compensation,  and  that  subsequent  to  the  time  of  his 
alleged  misdoings,  anil  <iunng  the  jjeriod  sjiecified  in  the  writ,  he  was  the  owner  of  a 
large  property,  far  exceeding  the  aggregate  of  all  his  salary  and  receipts  while  in  the 
plaintitf's  service,  is  admissible  as  having  some  tendency  to  prove,  if  the  jury  are 
satisfied  by  other  evidence,  that  money  had  been  taken  from  the  plaintiff  by  some  one 
in  his  employ,  that  the  defendant  is  the  guilty  person  ;  such  facts  being  in  nature  of 
res  geslce  accompanying  the  very  acts  and  transactions  of  the  defendant  umler  investi- 
gation, and  tending  to  give  them  character  and  significance.  And  the  declarations  of 
the  defendant  concerning  his  property  and  business  transactions,  made  to  third  per- 
sons, in  the  absence  of  the  jjlaintitl"  or  his  agents,  are  inadmi.ssible  to  rebui  such 
evidence.  Boston  &  W.  R.  J{.  Corp.  u.  Dana,  1  Gray,  83,  101,  103.  See  also  Com- 
monwealth V.  Montgomery,  11  Met.  534. 

2  Declarations,  to  become  part  of  the  res  geslce,  "must  have  been  made  at  the  time 
of  the  act  done,  which  they  are  supposed  to  characterize  ,  and  have  been  well  calcu- 
lated to  unfold  the  nature  and  ipiality  of  the  facts  they  were  intended  to  explain,  and 
.so  to  harmonize  with  them  as  obviously  to  >;onstitute  one  transaction."  iVi  Hosmer, 
C.  J.,  in  Knos  v.  Tuttle,  3  Conn.  250.  And  see  Jn  re  Taylor,  9  Paige,  611  ;  Carter  v. 
Buchannon,  3  Kelley,  513;  Blood  r.  Rideout,  13  Met.  237;  Boyden  v.  Buike,  14 
How.  S.  C  575.  But  declarations  exjihinatory  ot  a  previous  fact,  e.  y.  how  the  party  s 
hands  became  bloody,  are  inadmissible.  Scaggs  v.  State,  H  Smed.  &  Marsh.  722.  So, 
where  a  party,  on  removing  an  ancient  fence,  put  down  a  stone  in  one  ui  the  post-holes, 
and  the  next  day  declared  that  he  placed  it  there  as  a  boundary  ;  it  was  held  that  this 
declaration,  not  constituting  part  of  the  act  done,  was  inadmissible  in  evidence  in  his 
favor.  Noyes  v.  Ward,  19  Conn.  250.  See  Corinth  v.  Lincoln,  34  Maine,  310.  Ju 
an  action  by  a  bailor  against  the  bailee,  for  loss  by  his  negligence,  the  declarations  of 
the  bailee,  contemporaneous  with  the  loss,  are  admissible  in  his  favor,  to  show  the 
nature  of  the  loss.  Story  on  Bailm.  §  339,  cites  Tompkin.s  v.  Saltmarsh,  14  .S.  &  K. 
275  ;  Beardslee  v.  Richardson,  1 1  Wend.  25  ;  Doorman  v.  Jenkins,  2  A*l.  &  El.  256. 
So,  in  a  suit  for  enticing  away  a  servant,  his  declarations  at  the  time  of  leaving  his 
master  are  admissible,  as  part  of  the  res  geslce,  to  show  the  motive  of  his  departure. 
Hadley  v.  Carter,  8  Nt  H.  40. 

(a)  Haynes  v.  Rutter,  24  Pick.  (Mass  )  or  cause  may  be  collected,  is  part  of  the 

242;  Gray  v.  Goodrich,  7  Johns.  (N    Y.>  res  geslce,  veibal  acts,  and   may   !)e  given 

95;  Banks  of  Woodstock  i-.  Clark,  25  Vt.  in  evidence,   nhelher  tho  actor   be  or  be 

308;    Mitchum    r.    Stale,    11    Ga.    615;  not   a    party    to    the   suit.      Bateman    c 

Tomkies  v.   Reynolds,  17  Ala.  109,  Cor-  Bailey,   5  T.    R.   512;   (Jilchrist  v.    Bale, 

nelius  V.  State,   12   Aik.  782.     When  an  8   Watts   (Pa.),  355:   Barnes  o.  Allen,   1 

act   is   dona   to  v\l)ich    it  is  nece.s.sary  or  Keyes  (N.  Y.j,    390;    Hadley  v.   Carter, 

important  to  ascribe  a  character,  motive,  8  N.    H.    40  ;    Garber    v    State,    4   Cold, 

or  object,  what  was  said  by  the  actor  at  (Teiin.)  161. 

the  time,  from  win  h  the  chaicter,  motive,  (b)  The  ([Uestion  how  exactly  contem- 


CHAP,   v.] 


OP    HEARSAY. 


159 


Thus,  in  the  trial  of  Lord  George  Gordon  for  treason,  the  cry  of 
the  mob  who  accompanied  the  prisoner  on  his  enterprise  was 


poraneous  a  declaration  must  be  with  the 
act  it  characterizes  hiis  been  the  subject 
of  much  discussion,  especially  in  criminal 
cases.  In  the  recent  case  of  Reg.  v.  Bed- 
ingheld,  14  Cox,  Cr.  Cas.  341,  the  excla- 
mation of  a  woman,  coming  out  of  a 
house  with  her  thioat  cut,  giving  the 
name  of  a  person  as  liaving  cut  her  throat, 
was  rejected  on  the  ground  th.it  it  was  a 
statement  of  a  past  transaction,  though 
the  injury  had  been  inliicted  on  her  only 
a  moment,  before,  and  siie  was  then  run- 
ning for  assistance.  This  decision,  given 
in  1879,  jirovoked  much  comment.  fSee 
a  very  able  discussion  of  the  rule  of  res 
gestcc  and  criticism  of  Bedingtield's  Ca^e 
in  American  Law  Review,  vols.  14  and  15. 
Althougli  this  decision  seems  to  hold  to 
the  rule  that  the  declarations  must  bo 
strictly  contemjioianeous  with  the  act  in 
order  to  be  admissible,  yet  the  current  of 
deci-sions,  in  the  United  States  at  least,  is 
to  admit  such  declarations  if  they  are  so 
connected  with  a  fact  in  issue  as  to  quality, 
or  characterize,  or  explain  it,  although  not 
strictly  contemporaneous  witli  it.  In  the 
leading  case  ot  Insurance  Co.  v.  Mosley, 
8  Wall.  (U.  S.)  397,  the  declarations  weie 
tittered  some  minutes  after  the  fact  which 
they  characterized  liad  occurred.  In  Com. 
V.  McFike,  3  Cusli.  (Mass  )  181,  subse- 
quent declarations  were  also  admitted. 
And  in  accord  with  these  decisions  are 
Harriman  v.  Stowe,  57  Mo.  93;  Crookham 
V.  State,  5  W.  Va.  510  ;  Com.  v.  Hackett, 
2  Allen  (Mass. ),  136 ;  State  v  Thomas, 
30  La.  An.  Pt.  1,  600  ;  Boot  he  v.  State, 
4  Tex.  App.  202;  Newton  v.  Mut.  Ben. 
Life  Ins.  Co.,  2  Dill.  C.  C.  154  ;  Beaver 
V.  Taylor,  1  Wall.  (17.  S.)  637;  post, 
§  110  ;  People  v.  Vernon,  35  Cal.  49  ; 
Hanover  K.  R.  Co.  v.  Coyle.  55  Pa.  St. 
402;  Jewell  v.  Jewell,  1  How.  (U.  S) 
219  ;  Biownell  v.  Pacific  R.  H.  Co.,  47 
Mo.  239  ;  Fitield  v.  Richardson,  34  Vt. 
410.  On  the  same  principle  it  has  been 
held  that  on  the  trial  ol  a  prisoner  for 
murder,  a  statement  made  by  him  a  few 
minutes  after  the  homicide,  near  the  place 
and  in  the  hearing  and  presence  of  eye- 
witnesses of  the  homicide,  who  were  not 
called  by  the  Commonwealth,  is  atlmissible 
for  the  prisoner  as  a  jiart  of  the  res  (jestce. 
Little's  Case,  25  Cratt.  (Va.)  921.  In 
Jordan's  Case,  Id  943,  the  descrijition  of 
the  robber,  as  given  by  the  wife  of  tlie  ])er- 
son robbed,  to  the  officer  a  "few  moments  " 
(how  many  does  not  appear)  alter  the 
crime  was  committed,  was  admitted  as  part 
of   the  res  gesta:.     And   see   ante,    §   102, 


II.  So,  the  declaration  of  a  party  as- 
saulted, made  immediately  alter  the  as- 
sault, showing  the  character  of  the 
impression  made  at  the  time  on  his  mind 
in  legard  to  the  nature  of  the  attack,  are 
admi.ssible.  Monday  v.  State,  32  Ga.  672. 
So,  the  declarations  of  a  defendant,  as  to 
the  circumstances  under  which  he  kiUled 
a  runaway  slave,  made  immediately  alter 
the  fact,  are  admissible  in  an  action  of 
trespass  for  killing  the  slave.  Hart  v. 
Powell,  18  Ga.  635. 

These  decisions  are  certainly  opposed 
to  the  decision  in  Bedingheld's  Case,  and, 
indeed,  in  a  pamphlet  wdiich  Cockburn, 
(J.  J.,  published,  defending  his  decision 
in  that  ca.se,  he  says  the  American  cases 
on  this  point  have  gone  too  far.  Taylor 
on  Evidence,  7th  ed.  vol.  i.  §  588,  says  : 
"  It  was  at  one  time  thought  necessary 
that  they  (the  declarations)  should  be 
contemporaneous  witii  it  (the  main  fact), 
but  this  doctrine  of  late  years  has  been 
rejected,  and  it  seems  now  to  be  decided 
that  although  concurrence  of  time  must 
always  be  considered  as  material  evidence 
to  shoiv  (he  connection,  it  is  by  no  means 
essential."  Rouch  v.  Great  Western  Ry. 
Co.,  1  Q.  B.  51,  p.  GO,  Ridley  v.  Gyde, 
9  Bing.  349  ;  Rawson  v.  Haigb,  2  Biiig. 
99,  i>.  104. 

But  there  are  also  States  where  the 
stricter  and  more  accurate  doctrine  is 
still  held.  Thus  in  State  v.  Seymour, 
1  Houst.  C.  C.  (Del.)  508,  where  one 
after  firing  a  pistol  at  another,  for  which 
felonious  wounding  the  indictment  was 
brought,  ran  away  for  a  sliort  distance, 
about  200  yards,  and  then  told  one  whom 
he  met  and  who  had  not  witnessed  the 
affray,  that  the  shooting  was  accidental, 
this  declaration  was  rejected.  And  in 
Connecticut,  the  case  of  Rnos  v.  Tut- 
tie,  cited  by  Mr.  Greenleaf,  note  1,  has 
been  consistently  followed.  L'omstock  v. 
Hadlyrae,  8  Conn.  263  ;  Ford  v.  Haskell, 
32  Conn.  492;  Rockwell  v.  Taylor,  41 
Conn.  56.  And  compare  Patterson  v. 
South  Carolina  K.  R.  Co.,  4  S  C.  153; 
East  Tennessee  K.  li.  Co.  v.  Duggan,  51 
Ga.  212  ;  and  the  able  dissenting  opin- 
ion of  Mr.  Justice  Clitford  in  Insurance 
Company  v.  Mosley,  ubi  supra.  See  also 
State  V.  Davidson,  30  Vt.  377  ;  Com.  v. 
Harwood,  4  Gray  (Mass.),  41;  Com.  v. 
James,  99  Mass.  438  ;  Beardstown  v.  Vir- 
ginia, 81  111.  541  ;  Jackson  v.  State,  52 
Ala.  3<i5.  In  a  recent  case  in  Pennsylvania, 
the  ()uestioii  of  how  far  declarations  nearly 
contempoiaiieoub  with  the  act  in  evidence 


160 


LAW   OF   EVIDENCE. 


[part  II. 


received  in  evidence,  as  forming  part  of  the  res  gestae,  and  show- 


in  a  case  are  admissible  as  being  part  of 
the  res  gcslce,  was  laised.  The  facts  in 
this  case  were,  that  the  plaintiff  was  a  pas- 
senger on  a  railroad  train,  and  in  alighting 
from  the  car  at  the  station,  lie  fell  upon 
the  platform  of  the  station  and  was  in- 
jured. His  claim  was  that  the  train  did 
not  stop  long  enough  for  him  to  get  olf 
the  car  safely.  It  appeared  that  the  tram 
was  moving  when  the  jilaintitf  attempted 
to  leave  it,  and  that  he  either  fell,  or  vol- 
untarily jumped  from  the  train  as  it  was 
thus  moving  away  from  the  station.  Im- 
mediately after  the  train  had  passed  he 
said  to  one  of  the  bystanders  that  he  was 
badly  hurt,  that  he  got  no  chance  to  get 
off  and  that  his  foot  was  caught  against 
the  steps.  These  statements  were  held  to 
be  admissible  as  part  of  the  res  ffcslce. 
The  ground  on  wiiich  this  evidence  was 
admissible  probably  is  :  that  the  character 
of  the  action  by  which  he  left  the  train 
was  a  mateiial  ]ioint  in  the  case,  and  that 
it  was  imjiortarit  that  it  should  be  known 
whether  he  voluntarily  jumped  from  the 
train  or  fell.  In  view  of  this,  liis  state- 
ments made  alnKJst  immediately  after  his 
fall,  to  the  etlect  that  he  caught  his  foot, 
or  that  his  foot  was  caught  against  the 
steps,  and  that  he  got  no  chance  to  get  off, 
would  have  the  tendency  to  characterize 
his  act  of  leaving  the  train,  and  would 
therefore  be  admissible  under  the  decisions 
Penn.  K.  R.  v.  Lyun»,  129  Pa.  St.  114. 
So,  where  one  was  fatally  injured  while 
coupling  cars,  the  court  admitted  m  evi- 
dence in  an  action  for  the  injury  by  his 
administrator,  declarations  of  the  decedent, 
which  were  made  immediately  after  he  was 
injured  and  substantially  while  he  was  be- 
ing extricated  from  under  the  wheels  of 
the  car  which  had  passed  over  him.  These 
detlarations  were  made  within,  not  to  ex- 
ceed, two  minutes  of  the  accident,  and, 
while  the  declarant  remained  in  the  pre- 
sence of  the  tram,  and  the  alleged  defec- 
tive macliinery,  which  was  instrumental 
in  ])ioducing  his  hurt,  and  before  he  had 
been  removed  from  the  spot  where  he  le- 
ceived  his  fatal  injury.  Louisville,  New 
All).  &Chic.  K.  R.  lo  v.  Buck,  IIG  Ind. 
57o.  On  the  other  hand,  in  a  very  similar 
case,  such  declarations  were  deemed  inad- 
missible as  narrations  of  past  events. 
Cliicagc,  West  Div.  R.  H.  Co.  v  Becker, 
128  111.  .548.  One  point  seems  clear  that 
mere  narrations  of  i>ast  transactions, 
whether  long  after  the  transactions  nar- 
rated or  immediately  following  them,  is 
to  be  excluded  ;  tlie  reason  being  that 
they  are  untrustworthy  in  the  extreme  ; 


they  are  not  made  under  oath  ;  they  can- 
not be  discussed  by  cross-examination ; 
nor  are  they  lik<dy  fo  open  to  explanation, 
generally  being  fragmentary  and  incom- 
jilete,  and  liable,  therefore,  to  be  misunder- 
stood anil  misreported.  Estell  v.  State,  51 
N.  J.  L.  183.  But  the  word  "  narrative  " 
is  important  in  this  connection  as  describ- 
ing the  kind  of  statements  as  to  past  facts 
which  are  inadmissilile,  ?.  e.  a  recital  with 
some  particularity  of  the  circumstances  in 
question  and  with  presumaVjly  sufficient 
calmness  to  render  tlie  danger  of  falsifica- 
tion great.  The  mere  fact  that  the  decla- 
rations in  question  relate  to  ]iast  facts 
does  not  necessarily  give  them  this  char- 
acter of  "  narrative."  For  instance,  if 
spoken  by  one  fatally  injured,  while  suf- 
fering from  the  first  shock  of  the  injury, 
although  the  fact  of  the  injury  is  jiast,  his 
statements  relating  to  it  may  be  admissi- 
ble. Louisville,  New  Alb.  &  Chic.  K.  R. 
Co.  i*.  Buck,  supra.  Again,  the  time 
when  the  fleclarations  are  made  is  of  almost 
controlling  imjiortance,  though  even  in 
regard  to  this  the  circumstances  may  so 
connect  a  declaration  made  some  time  after 
the  act  it  characterizes  as  to  render  the 
declaration  admissible.  Com.  v.  Hackett, 
2  Allen,  139.  The  whole  question  re- 
ceived a  very  thorough  discussion  in  a 
recent  case  in  Hhode  Island  :  State  v. 
Murphy,  Itj  R.  I.  529.  In  this  case, 
upon  the  trial  of  an  indictment  for  mur- 
der, two  statements  of  the  deceased  were 
admitted  in  evidence,  to  v-he  etiect  that  he 
had  been  assaulted  and  robbed  by  two 
men  whom  he  described.  One  of  these 
statements  v.as  made  immediately  after 
the  assault,  and  the  other  from  ten  to  fif- 
teen minutes  later.  These  statements 
were  admitted  against  the  defendant's  ob- 
jection, as  a  ])ait  of  the  res  geslce.  The 
court  say.s,  "The  ]»rinciple  ujion  which 
tiie  admission  of  such  evidence  rests  is 
that  declarations  after  an  act  may,  never- 
theless, spring  so  naturally  and  involun- 
tarily from  the  thing  done  as  to  reveal  its 
character,  and  thus  belong  to  it  and  be 
a  i)ait  of  it.  .  .  .  The  rule  deduciblo 
from  the  cases  is  well  expressed  by  Bige- 
low,  C.  J.,  in  Com.  v.  Hackett,  2  Alien, 
136,  139:  "'The  true  test  of  tlie  compe- 
tency of  the  evidence  is  not,  as  was  aigued 
1\V  the  counsel  for  the  defendant,  tfiat  it 
was  made  after  the  act  was  done  and  in 
the  absence  of  the  dtlendant.  These  are 
important  circumstances,  entitled  to  great 
weight,  and,  if  they  stood  alone,  quite  de- 
cisive. But  they  are  outweighed  by  the 
other  facts  in  proof,  from  which  it  appears 


CHAP,    v.] 


OF    HPLVRSAY. 


161 


ing  the  character  of  the  principal  fact.^  So,  also,  where  a  person 
enters  into  land  in  order  to  take  advantage  of  a  forfeiture,  to 
foreclose  a  mortgage,  to  defeat  a  disseisin,*  or  the  like ;  or  changes 
his  actual  residence,  or  domicile,  or  is  upon  a  journey,  or  leaves 
his  home,  or  returns  thither,  or  remains  abroad,  or  secretes  him- 
self; or,  in  fine,  does  any  other  act,  material  to  be  understood; 
his  declarations,  made  at  the  time  of  the  transaction,  and  ex- 
pressive of  its  character,  motive,  or  object,  are  regarded  as  "  ver- 
bal acts,  indicating  a  present  purpose  and  intention,"'  and  are 
therefore  admitted  in  proof  like  any  other  material  facts.'"'  (c)    So, 

8  21  Howell's  St.  Tr.  542. 

4  Co.  Litt.  49  b,  245  b  ;  Robison  i;.  Swett,  3  Greenl.  316  ;  3  Bl.  Comra.  174,  175. 

^  Bateman  v.  Bailey,  5  T.  R.  512,  and  the  observations  of  Mr.  Evans  upon  it  in 
2  Poth.  Obi.  App.  No.  xvi.  §  11  ;  Rawson  v.  Haigh,  2  Bing.  99  ;  Newman  v.  Stretch, 
1  M.  &  M.  338  ;  Ridley  v.  Gyde,  9  Bin<?.  349,  352  ;  Smith  v.  Cramer,  1  Bing.  N.  C. 
585  ;  Gorham  ;;.  Canton,  5  Greenl.  266  ;  Fellowes  v.  Williamson,  1  M.  &  M.  306  ; 
Vaoher  v.  Cocks,  Id.  353  ;  1  B.  &  Ad.  145  ;  Thorndike  v.  City  of  Boston,  1  Met.  242  ; 
Carroll  v.  State,  3  Humph.  315  ;  Kilburn  v.  fiennet,  3  Met.  199  ;  Salem  v.  Lynn,  13 
Met.  544  ;  Porter  v.  Ferguson,  4  Fla.  104. 


that  they  were  uttered  after  the  lapse  of 
so  brief  an  interval,  and  in  such  connec- 
tion with  the  principal  transaction,  as  to 
form  a  legitimate  part  of  it,  and  to  receive 
credit  and  support  as  one  of  the  circum- 
stances which  accompany  and  illustrate 
the  main  fact,  which  was  the  subject  of 
inquiry  before  the  jury." 

It  follows  that  if  there  is  no  ad  with 
which  the  declarations  can  be  connected, 
they  are  not  admissible.  Thus  in  Lund 
V.  Tj'ngsborough,  9  Cush.  (Mass.)  36, 
which  was  an  action  for  injuries  received 
through  a  defect  in  the  highway,  the 
statements  of  a  doctor,  since  deceased, 
made  while  examining  the  injured  party, 
a  long  time  after  the  injury,  as  to  the 
nature  of  the  injury,  were  held  inadmissi- 
l)le.  In  that  case  the  fact  of  the  examina- 
tion was  irrelevant  to  the  plaintin''s  case. 
Cf.  People  V.  Williams,  3  Abb.  (N.  Y.) 
App.  596  ;  Richardson  v.  Moore,  19  Atlant. 
Rep.  390. 

(c)  State  V.  Winner,  17  Kan.  298. 
WHien  the  ascertainment  of  the  motive 
with  which  an  act  is  done  becomes  ma- 
terial the  declarations  of  the  actor,  made 
at  the  time  the  act  was  done,  and  expressive 
of  its  character  or  object,  are  regarded  as 
verbal  acts  expressing  a  present  purpose 
and  intention  and  are  admissible  in  evi- 
dence. Williams  v.  State,  4  Tex.  App.  5  ; 
State  ';.  Lewis,  45  Iowa,  20  ;  Stephen  v. 
McUloy,  36  Iowa,  659  ;  Duling  v.  Johnson, 
32  Ind.  155.  The  rule  has  been  stated  as 
follows  :  That  whenever  the  existence  of 
a  purpose,  or  state  of  mind,  is  the  subject 
of   inquiry,  explanatory   conduct  and    ac- 

vor.   r.  — 11 


companying  expressions  of  the  party  him- 
self, or  of  other  persons  to  him  or  in 
his  presence,  may  be  shown  by  proof. 
Schlemmer  v.  State,  51  N.  J.  L.  29. 
Thus,  in  the  case  of  Hunter  v.  State,  11 
Vrooin,  495,  it  was  held  that  the  declara- 
tions of  a  third  party  explanatory  of  an 
act  that  was  part  of  the  res  gestae  were  not 
hearsay,  but  were  legitimate  evidence. 
In  the  case  of  People  v.  Dowling,  84  N. 
Y.  473,  which  was  a  ))i-osecution  for  re- 
ceiving  stolen  goods,  after  the  State  had 
proved  the  receipt  of  the  goods,  the  de- 
fendant, in  order  to  rebut  the  inference 
of  guilty  knowledge  on  his  part,  offered  to 
show  what  statement  the  thief  had  made 
to  him  at  the  time  he  purchased  the 
})roperty,  with  respect  to  the  source  from 
wdiich  he  had  got  it  ;  and  such  statements 
were  held  competent  evidence  by  the 
Court  of  Ajtpeals.  So  again  where  the 
question  was  whether  one  who  made  de- 
posits in  a  savings  bank  in  another's 
name,  ami  kept  the  books,  meant  to  make 
a  gift  of  the  deposit,  it  was  held  that 
evidence  of  her  declarations,  while  so 
holding  the  books,  was  competent  on  the 
question  whether  she  intended  to  make  a 
gift.  Scott  V.  Berkshire  County  Savings 
Bank,  140  Mass.  157.  So  when  a  receipt 
and  a  bill  of  sale  are  delivered  as  parts 
of  a  transaction,  they  may  bo  admissible 
to  show  the  intention  of  the  parties  to 
the  transaction,  so  far  as  the  intention 
expressed  in  the  papers  tend  to  qualify  or 
characterize  the  acts  done.  The  papers 
are  a  part  of  the  res  qrstoe.  Brooks  v. 
Du^gan,  149  Mass.  306. 


162 


LAW   OF   EVIDENCE. 


[part  II. 


upon  an  injury  as  to  the  state  of  mind,  sentiments,  or  dispositions 
of  a  person  at  any  particular  period,  his  declarations  and  conver- 
sation are  admissible. ''(c?)     They  are  parts  of  the  res  gestce.  {e) 

§  109.  Declarations  as  to  title.  In  regard  to  the  declarations  of 
persons  in  possession  of  land,  explanatory  of  the  character  of 
their  possession,  there  has  been  some  difference  of  opinion;  but 

6  Barthelemy  v.  People,  2  Hill  (N.  Y. ),  248,  257  ;  Wetmore  v.  Mell,  1  Ohio  St.  26. 


So  the  preambles  of  the  vote  of  a  cor- 
poration duly  entered  upon  the  records, 
reciting  the  purpose  of  a  vote  or  re.solution 
of  the  corporation,  are  competent  evi- 
dence characterizing  the  purpose  or  in- 
tention of  the  act  of  the  corporation. 
Wiley  V.  Athol,  150  Mass.  430.  So,  on 
a  question  of  domicile,  declarations  of 
intent  acconifianying  the  act  of  moving, 
starting  on  a  iournev,  &c.,  are  admissible. 
Tue  Venus,  8'Cranch  (U.  S.),  278  ;  Rich- 
mond V.  Thomaston,  38  Me.  232  ;  Corn- 
ville  V.  Brighton,  39  Id.  333.  In  such 
cases  involving  questions  of  domicile,  this 
species  of  evidence  is  frequently  admitted 
because  the  act  of  changing  residence 
must  be  qualihed  by  an  intent  to  change 
domicile,  and  this  intent  may  be  shown 
by  declarations  contemporaneous  with  the 
change  of  residence.  Such  evidence, 
however,  is  strictly  confined  to  contem- 
poraneous declarations  qualifying  the 
act  with  respect  to  the  intention.  The 
narrative  of  past  acts  is  inadmissible,  and 
since  the  admission  of  parties  as  wit- 
nesses this  evidence  has  still  less  ground 
for  admission.  Pickering  v.  Cambridge, 
144  Mass.  244.  So,  in  election  cases, 
the  declarations  of  a  voter,  made  at  or 
near  the  time  of  casting  his  vote,  are  ad- 
missible as  evidence  characterizing  the 
vote,  or  explaining  an  ambiguous  ballot, 
or  showing  the  intention  of  the  voter. 
These  declarations  are  admissible  as  part 
ot  the  res  gestcc  when  the  act  of  voting  is 
a  material  fact  in  the  case,  but  are  not 
admissible  if  made  after  the  vote  is  cast. 
Boyer  v.  Teague,  106  N.  C.  576.  So 
v.'hen  the  execution  of  a  lease  by  one  of 
the  defendants  was  in  issue,  and  it  was 
proved  that  he  took  the  lease  while  it 
was  unsigned,  and  read  it,  it  was 
held  that  evidence  of  what  he  said 
when  he  read  the  lease,  was  admissible 
as  tending  to  show  whether  or  not  he  ac- 
cepted the  lease.  Stevens  v.  Miles,  142 
Ma.ss.  571.  So  in  an  indictment  for  mur- 
der by  shooting  where  it  became  import- 
ant to  ascertain  what  the  circumstances  of 
the  shooting  were  ;  why  the  shot  was 
fired  ;  in  what  condition  of  mind  the 
respondent  was  at  the  time  he  discharged 


his  pistol  ;  whether  the  act  was  done  with 
deliberation,  or  under  sudden  excitement 
of  fear,  passion,  or  provocation,  as  would 
reduce  the  offence  of  killing  from  murder 
to  manslaughter  ;  and  th"^  motive  with 
which  the  act  of  killing  was  done  was 
necessarily  an  important  factor  in  deciding 
the  case,  it  was  held  that  the  declarations 
of  the  defendant  accompanying  the  act  of 
shooting  were  admissible  in  evidence. 
State  V.  Walker,  77  Me.  490. 

(r/)  People  !•.  Gelimele,  1  BufT.  Supe- 
rior Ct.  251  ;  Hester  v.  Com.,  85  Pa.  St. 
139.  So  declarations  of  a  testator,  show- 
ing that  his  mind  at  the  time  of  making 
the  will  was  under  undue  influence. 
Milton  V.  Hunter,  13  Bush  (Ky.),  163; 
Lucas  V.  Cannon,  Id.  650. 

(e)  It  is  only  when  the  act  is  equivocal, 
and  it  is  necessary  to  render  its  meaning 
clear,  and  expressive  of  a  motive  or  object, 
that  it  is  competent  to  prove  declarations 
accompanying  it,  as  falling  within  the 
class  of  res  gestae.  By  Bigelow,  J.,  m 
Nutting  V.  Page,  4  Gray,  584.  The  con- 
duct and  exclamations  of  passengers  on  a 
railroad  at  the  time  of  an  accident,  though 
not  in  the  presence  of  the  party  receiving 
an  injury,  are  admissible  as  part  of  the 
res  gcslce,  to  justify  the  conduct  of  the 
party  injured.  Galena,  &c.  K.  R.  Co.  v. 
Fay,  16  HI.  558.  It  has  been  held  in  Eng- 
land that  it  is  competent  for  the  plaintiff, 
for  the  purpose  of  proving  upon  whose  credit 
the  goods  sued  for  were  sold,  to  put  in  evi- 
dence a  letter  written  by  himself,  at  the 
time  the  bargain  was  made,  to  hi'v  agent, 
desiring  him  to  inquire  as  to  the  credit 
of  the  defendant,  of  a  person  to  whom  the 
person  receiving  the  goods  had  referred 
him  for  that  purpose,  and  stating  therein 
that  the  defendant  was  the  buyer.  And 
it  was  further  considered  that  the  jury 
might  look  at  the  whole  lettei,  and  al- 
though, in  itself,  it  was  not  evidence  of  the 
truth  of  the  facts  affirmed,  it  might  be  con- 
sidered as  corroborative  of  the  plaintiff's 
version  of  the  transaction.  Jlilne  v. 
Leisler,  7  H.  &  N.  786  ;  s.  c.  8  Jur. 
N,  s.  121  ;  Eastman  v.  Bennett,  6  Wis. 
232,  where  the  same  principle  is  main- 
tained. 


CHAP,    v.]  OP    HEARSAY.  163 

it  is  now  well  settled,  that  declarations  in  disparagement  of  the 
title  of  the  declarant  are  adniissiljle  as  original  evidence.  Posses- 
sion is  prima  facie  evidence  of  seisin  in  fee-simple;  and  tlie 
declaration  of  the  possessor,  that  he  is  tenant  to  another,  it  is 
said,  makes  most  strongly  against  his  own  interest,  and  there- 
fore is  admissible.  ^  (a)  But  no  reason  is  perceived  why  every 
declaration  accompanying  the  act  of  possession,  whether  in  dis- 
paragement of  the  claimant's  title,  or  otherwise  qualifying  his 
possession,  if  made  in  good  faith,  should  not  be  received  as 
part  of  the  res  (/estce;  leaving  its  effect  to  be  governed  by  other 
rules  of  evidence.  2  (6) 

1  Peaceable  v.  Watson,  i  Taunt.  16,  17,  per  Mansfield,  C.  J.  ;  West  Cambridge  v. 
Lexington,  2  Pick.  536,  per  Putnam,  J.  ;  Little  v.  Libby,  2  Greenl.  242  ;  Doe  v.  Pet- 
tett,  5  B.  &  Aid.  223  ;  Carne  v.  Nicoil,  1  Bing.  N.  C.  430  ;  per  Lyndhurst,  C.  B.,  lu 
Chambers  v.  Bernasconi,  1  Cromp.  &  Jer.  457  ;  Smitli  v.  Martin,  17  Conn.  399  ;  infra, 
§  189. 

2  Davies  i".  Pierce,  2  T.  R.  53  ;  Doe  v.  Rickarby,  5  Esp.  4  ;  Doe  v.  Payne,  1  Stark. 
86  ;  2  Poth.  on  Obi.  254,  App.  No.  xvi.  §  11  ;  Rankin  v.  Tenbrook,  6  Watts,  3S8, 
390.  per  Huston,  J.  ;  Doe  v.  Pettett,  5  B.  &  Aid.  223  ;  Read  v.  Dickey,  1  Watts,  152  ; 
Walker  V.  Broadstock,  1  Esp.  458  ;  Doe  v.  Austin,  9  Bing.  41  ;  Doe  v.  Jones,  1  Campb. 
367  ;  Jackson  v.  Bard,  4  Johns.  230,  234  ;  Weidman  y.^Kohr,  4  S.  &  R.  174  ;  Gibble- 
house  V.  Stong,  3  Rawle,  437  ;  Norton  v.  Pettibone,  7  Conn.  319  ;  Snelgrove  v.  Martin, 
2  McCord,  241,  243  ;  Doe  d.  Majoribanks  v.  Green,  1  Gow,  227  ;  Carne  v.  Nicoli, 
1  Bing.  N.  C.  430  ;  Davis  v.  Campbell,  1  Iredell,  482  ;  Crane  v.  JIarshall,  4  Sheid.  27  ; 
Adanis  v.  French,  2  N.  H.  387  ;  Tieat  v.  Strickland,  9  Shepl.  234  ;  Blake  r,  White, 
13  N.  H.  267  ;  Doe  v.  Langfield,  16  M.  &  W.  497  ;  Baron  de  Bode's  Case,  8  Q.  B. 
24?,  244;  Abney  v.  Kingsland,  10  Ala.  355  ;  Daggett  v.  Shaw,  5  Met.  223  ;  Stark  v. 
Boswell,  6  Hill  (N.  Y.).  405  ;  Pike  v.  Hayes,  14  N.  H.  19,  Smith  v.  Powers,  15 
N.  H.  546,  563.  Accordingly  it  has  been  held,  that  a  statement  made  by  a  person 
not  suspected  of  theft,  and  before  any  search  made,  accounting  for  his  possession  of 
propert}'  which  he  is  afterwards  charged  with  having  stolm,  is  admissible  in  his  favor. 
Rex  V.  Abraham,  2  Car.  &  K.  550.  But  see  Smith  v.  Martin,  17  Conn.  399.  Where 
a  party,  alter  a  post-nuptial  settlement,  mortgaged  the  same  premises,  it  was  held  that, 
as  his  declarations  could  bind  him  only  while  the  interest  remained  in  him,  his  decla- 
rations, as  to  the  consideration  paid  by  the  subsequent  purchaser,  were  not  admissible 
against  the  claimants  under  the  settlement,  for  this  would  enable  him  to  cut  down  his 
own  previous  acts.     Doe  v   Webber,  3  Nev,  &  Man.  586. 

(a)  Bowen  v.  Chase,  98  U.  S.  254 ;  to  misrepresent  appears.  Li  Long  v. 
Hurt  V.  Evajis,  49  Tex.  311  ;  Poorman  v.  Colton,  116  Maijs.  414,  the  statement  of 
Miller,  44  Cal.  269  ;  Loos  v.  Wilkinson,  the  law  on  this  yjoint  is  made  by  Colt,  J., 
110  N.  Y.  210;  Miller  v.  Feenane,  50  a.s  follows :  "The  declarations  o{  dccensed 
N.  J.  L.  33  ;  j\Ielvin  v.  Bullard,  82  persons  respecting  boundaries  are  reeeiv  >  I 
N.  C.  33 ;  Roberts  v.  Roberts,  Id.  29  ;  as  evidence  as  an  exception  to  the  rule 
Marcy  v.  Stone,  8  Cu.sh.  (Mass. )  4;  Stearns  which  rejects  hear.say  testimony.  In  most 
V.  Hendersass,  9  Id.  497;  Plimpton  u.  of  the  decided  cases,  it  is  held  that  the  de- 
Chamberlain,  4  Gray  (Ma.ss.),  320  ;  Potts  claration  should  appear  to  have  been  made 
V.  Everhart,  26  Pa.  St.  493  ;  St.  Clair  v.  in  disparagement  of  title  or  against  the 
Shale,  28  Id.  105  ;  Doe  v.  Campbell,  1  interest  of  the  party  making  it,  but  in  Dac;- 
I  red.  482.  gett  v.  Shaw,  5  Mete.  ( Mass.),  223,  it  is  said 

(//)  Such  declarations  are  now  generally  that  the  rule  as  practised  in  this  Common- 
admitted,  but  the  practice  is  diverse  in  wealth  is  not  so  restricted,  and  that  decla- 
the  various  States.  The  rule  in  Massa-  rations  of  ancient  persons,  made  while  in 
chusetts  is  that  such  declarations  oi  de-  possession  of  land  owned  by  them,  pointing 
ceased  persons  made  while  in  possession  out  their  boundaries  on  tlie  land  itself,  are 
of  land  oioncd  by  them,  pointing  out  its  admissible  as  evidence  when  nothing  ap- 
buundaries,  are  admissible,  if  no  interest  jiears  to  show  that  tliey  are  interested  to 


164 


LAW   OP   EVIDENCE. 


[part  II. 


§  110.  Must  be  concomitant.  It  is  to  bc  observed,  that,  where 
declarations  otl'cred  in  evidence  are  merely  narrative  of  a  past 
occurrence^  they  cannot  be  received  as  proof  of  the  existence  of 
such  occurrence.  They  must  be  concomitant  with  the  principal 
act,  and  so  connected  with  it  as  to  be  regarded  as  the  mere  result 
and  consequence  of  the  co-existing  motives,  in  order  to  form  a 
proper  criterion  for  directing  the  judgment  which  is  to  be  formed 
upon  the  whole  conduct.^     On  this  ground,  it  has  been  holden 


1  2  Poth.  on  Obi.  by  Evans,  pp.  248,  249,  App.  No.  xvi.  §  11  ;  Ambrose  v.  Clen- 
don,  Cas.  temp.  Hardw.  254  ;  Doe  v.  Webber,  1  Ad.  &  El.  733.  In  Ridley  v.  Gyde, 
9  Bing.  349,  where  the  point  was  to  establish  an  act  of  bankruptcy,  a  conversation  of 
the  bankrupt  on  the  20th  of  November,  being  a  resumption  and  continuation  of  one 
which  h:id  been  begun,  but  broken  off  on  the  25th  of  October  preceding,  was  admitted 
in  in-idence.  See  also  Boyden  v.  Moore,  11  Pick.  362;  Walton  v.  Green,  1  C.  &  P. 
621  ;  Reed  v.  Dick,  8  Watts,  479  ;  O'Kelly  v.  O'Kelly,  8  Met.  436  ;  Stiles  v.  Western 
Kailroad  Corp.,  Id.  44. 


misrepresent,  and  it  need  not  appear  affirma- 
tively that  the  declaration  was  made  in  re- 
striction of  or  against  their  own  rights,  and 
in  Bartlett  v.  Emerson,  7  Gray,  174,  it  is 
held  that,  to  be  admissible,  such  declara- 
tions must  have  been  made  by  persons  now 
deceased,  while  in  possession  of  land  owned 
by  them,  and  in  the  act  of  pointing  out  their 
boundaries,  with  respect  to  such  boundaries, 
and  where  nothing  appears  to  show  an  in- 
terest to  deceive  or  misrepresent.  Ware  v. 
Brookhouse,  7  Gray,  454  ;  Flagg  v.  Mason, 
8  Gray,  556."  Cf.  Morrill  v.  Titcomb,  8 
Allen  (Mass.),  100  ;  Adams  v.  Swansea, 
116  Mass.  591  ;  Fellows  v.  Smith,  130 
Id.  378.  In  a  somewhat  recent  case  in 
Massachusetts,  it  was  said  that  these  de- 
clarations are  rather  to  be  admitted 
simply  as  necessary  exception.s  to  the 
general  rule  excluding  hearsay,  and  that 
the  princii)le  sliould  not  be  carried  fur- 
thei'  tlian  it  has  been  already  settled  by 
authority.  In  this  ease  the  question  was 
whether  an  easement  was  attached  to  an 
estate.  The  easement  was  a  .spring  and 
watercourse  reserved  in  a  deed  executed 
by  one  of  the  plaintiffs  predecessors  in 
title.  The  action  was  for  interfering  with 
the  right  of  the  plaintiff  to  use  the  spring. 
Evidence  was  admitted  of  declaration 
by  the  plaintiffs  immediate  grantor, 
.since  then  deceased  of  his  intention  to 
divert  the  stream  and  identifying  it  as  the 
one  reserved  in  the  deed.  The  declara- 
tions were  made  on  the  premises  at  the 
time  of  the  grant  to  the  plaintiff,  and 
were  held  to  be  admissible.  Peck  v.  Clark, 
142  Mass.  436. 

The  dp'^larations  must  be  madr  before 
the  declarant  has  parted  with  the  title 
to  the  property,  or  they  are  not  admissible 


because  they  do  not  qualify  a  present 
act.  Ciiase  v.  Horton,  143  Mass.  118; 
Roberts  v.  Medbery,  132  Mass.  100  ;  Win- 
chester V.  Charter,  97  Mass.  140.  A 
similar  rule  also  obtains  in  Pennsyl- 
vania. Bender  v.  Pitzer,  27  Pa.  St.  333. 
And  New  Hampshire,  and  Maine,  and 
New  York.  Wood  «;.  Fiske,  62  N.  H. 
173  ;  Royal  v.  Chandler,  81  Me.  119. 
And  m  New  Jersey  and  Indiana,  such  dec- 
larations are  admissible  if  the  act  of  pos- 
session which  they  accompany  is  provable 
in  the  case.  Curtis  v.  Aaronson,  49  N.  J. 
L.  75  ;  Brown  v.  Kenyon,  108  Ind. 
284.  It  will  be  noticed  that,  accord- 
ing to  this  rule,  the  admissibility  of 
the  declaration  depends  partly  upon  the 
fact  that  the  declaration  is  made  by  an 
oivner,  or  one  in  possession.  But  a  broader 
rule  is  stated  by  Mr.  Justice  Strong,  in 
Hunnicutt  v.  Peyton,  102  IT.  S.  333,  p. 
364,  to  be  the  general  American  rule,  i.  e. 
if  the  declarant  is  shown  to  have  knoirl- 
edge  of  the  facts  which  he  stated,  and  made 
the  declaration  while  on  the  land  or  in  pos- 
session of  it,  and  has  since  deceased,  his 
declarations  are  admissible.  This  rule 
includes  surveyors,  chain  carriers,  &c.,  as 
well  as  owners  (Hill  v.  Proctor,  10  W. 
Va.  59),  who  would  be  excluded  by  the 
other  rule.  This  rule  in  its  broader  sha|)c 
will  be  discussed,  §  145,  note  (a).  Cf.  also 
§  189.  In  New  York,  it  seems  that  the 
declarant  need  not  be  deceased  at  the  time 
of  the  trial,  nor  need  the  declarations  be  in 
disparagement  of  his  title,  nor  need  they 
bu  madr  on  the  Innd  itself,  if  the  party 
making  tliein  is  "i  |iosseRsion  of  the  land. 
Aberlr.  Vaii  Gelder.  36  N.  Y.  513  ;  Swet- 
tenham  v  I  earv.  18  Hun  (N.  Y.),  284, 
Seepas^,  §§  145,  189. 


CHAP,    v.]  OF    HEARSAY.  165 

that  letters  written  during  absence  from  home  are  admissible  as 
original  evidence,  explanatory  of  tiic  motive  of  departure  and 
absence,  the  departure  and  absence  being  regarded  as  one  con- 
tinuing act.  2 

§  111.  Declarations  of  conspirators.  The  samc  jtrinciples  apply 
to  the  acts  and  declarations  of  one  of  a  comj)any  of  conspirators, 
in  regard  to  the  common  design  as  affecting  his  fellows.  Here  a 
foundation  must  first  be  laid  by  proof  sufficient  in  the  opinion  of 
the  judge  to  cstahlish  prima  facie  the  fact  of  conspiracy  between 
the  parties,  or  proper  to  be  laid  before  the  jury  as  tending  to 
establish  such  fact,  (a)  The  connection  of  the  individuals  in  the 
unlawful  enterprise  being  thus  shown,  every  act  and  declaration 
of  each  member  of  the  confederacy,  in  pursuance  of  the  original 
concerted  plan,  and  with  reference  to  the  common  object,  is,  in 
contemplation  of  law,  the  act  and  declaration  of  them  all ;  and  is 
therefore  original  evidence  against  each  of  them.  It  makes  no  dif- 
ference at  what  time  any  one  entered  into  the  conspiracy.  Every 
one  who  does  enter  into  a  common  pur{)ose  or  design  is  generally 
deemed,  in  law,  a  j)arty  to  every  act  which  had  before  been  done 
by  the  others  and  a  party  to  every  act  which  may  afterwards  be 
done  by  any  of  the  others  in  furtherance  of  such  common  dc- 
sign^{h)  Sometimes,  for  the  sake  of  convenience,  the  acts  or 
declarations  of  one  are  admitted  in  evidence  before  sufficient 
proof  is  given  of  the  conspiracy;  the  prosecutor  undertaking  to 
furnish  such  proof  in  a  subsequent  stage  of  the  cause,  (c)  But 
this  rests  in  the  discretion  of  the  judge,  and  is  not  permitted, 
except  under  particular  and  urgent  circumstances ;  lest  the  jury 
should  be  misled  to  infer  the  fact  itself  of  the  conspiracy  from 
the  declarations  of  strangers.  And  here,  also,  care  must  be 
taken  that  the  acts  and  declarations,  thus  admitted,  be  those 
only  w^hich  were  made  and  done  during  the  pendency  of  the 
criminal  enterprise,  and  in  furtherance  of  its  objects.     If  they 

2  Rawson  v.  Haigh,  2  Biug.  99,  104  ;  Marsh  v.  Davis,  24  Vt.  363;  New  Milfoi'd  v. 
Sherman,  21  Conn.  101. 

1  Hex  V.  Watson,  32  Howell's  St.  Tr.  7,  per  Bavley,  J. ;  Rex  v.  Brandreth,  Id.  857, 
858;  Rex  v.  Hardy,  24  Howell's  St.  Tr.  451,  452,  453,  475;  Amerinan  Fur  Co.  v. 
United  States,  2  Peters,  358,  365  ;  Crowinshield's  Ca.se,  10  Pick.  497;  Rex  v.  Hunt,  3 
B.  &  Aid.  566;  1  East,  P.  C.  97,  §  38;  NichoUs  v.  Dowding,  1  Stark.  81. 

(a)  Smith   v.    Tarbox,    70    Me.    127  ;  (b)  United   States   v.    McKee,    3  Dill. 

Ormsby  v.  People,  53  N.  Y.  472  ;  Wilson  C.    C.   546  ;  Jacobs  v.  Shorey,  48  N.  H. 

V.  O'Day,  5  Dalv  (N.  Y.),  354;  Reid  v.  100;  Ellis  u.  Dempsey,  4  W.  Va.  126. 
Louisiana  State  Lottery,  29  La.  An.  388  ;  (t)  Without   such  assurance,  the  evi- 

Taylor  V.  State,  3  Tex.App.  169;  Garrard  dence  is  inadmissible.     Hamiltou  v.  Peo- 

V.  State,  50  Miss.  147  ;  Street  v.  State,  43  pie,  29  Mich.  195. 
Miss.  1. 


166  LAW    OF    EVIDENCE.  [PART   II. 

took  place  at  a  subsequent  period,  and  are,  therefore,  merely  nar- 
rative of  past  occurrences,  they  are,  as  we  have  just  seen,  to  be 
rejected. 2  (t?)  The  term  acts  includes  written  correspondence,  and 
other  papers  relative  to  the  main  design;  but  whether  it  includes 
unjmblished  writings  upon  abstract  questions,  though  of  a  kin- 
dred nature,  has  been  doubted.  ^  Where  conversations  are  proved, 
the  effect  of  the  evidence  will  depend  on  other  circumstances, 
such  as  the  fact  and  degree  of  the  prisoner's  attention  to  it,  and 
his  assent  or  disapproval.*  (e) 

§  112.  Declarations  of  partners.  This  doctrine  extends  to  all 
cases  oi  partnership.  Wherever  any  number  of  persons  associate 
themselves  iu  the  joint  prosecution  of  a  common  enterprise  or 
design,  conferring  on  the  collective  body  the  attribute  of  indi- 
viduality by  mutual  compact,  as  in  commercial  partnerships  and 
similar  cases,  the  act  or  declaration  of  each  member,  in  further- 
ance of  the  common  object  of  the  association,  is  the  act  of  all. 
By  the  very  act  of  association,  each  one  is  constituted  the  agent 
of  all.  1(a)     While  the  being  thus  created  exists,  it  speaks  and 

2  Rex  V.  Hardy,  supra.  The  declaration  of  one  co-trespasser,  where  several  are 
jointly  sued,  may  be  given  in  evidence  against  himself,  at  whatever  time  it  was  made  ; 
hut,  if  it  was  not  ])art  of  the  res  geskc,  its  effect  is  to  be  restricted  to  the  party  making 
it.  Yet,  in  Wriglit  v.  Court,  2  C.  &  P.  232,  which  was  an  action  for  false  imprison- 
ment, the  declaration  of  a  co-defendant,  showing  personal  malice,  though  made  in  the 
absence  of  the  others,  and  several  weeks  after  the  fact,  was  admitted  by  Garrow,  B., 
■without  such  restriction.  Where  no  common  object  or  motive  is  imputed,  as  in  actions 
for  negligence,  the  declaration  or  admission  of  one  defendant  is  not  admitted  against 
any  but  liimself.     Daniels  v.  Potter,  1  M.  &  M.  501. 

'3  Foster,  198;  Rex  v.  AVatson,  2  Stark.  116,  141-147. 

4  Rex  V.  Hardy,  24  Howell's  St.  Tr.  703,  per  Eyre,  C.  J. 

1  Sandilands  v.  Marsh,  2  B.  &  Aid.  673,  678,  679  ;  Wood  v.  Braddick,  1  Taunt. 
104,  and  Petherick  v.  Turner,  et  al.  there  cited  ;  Rex  v.  Hard  wick,  11  East,  578,  5S9  ; 
Van  Reimsdyk  v.  Kane,  1  Gall.  630,  635  ;  Nichols  v.  Dowding,  1  Stark.  81  ;  Hodem- 
pyl  V.  Viugeihoed,  Chitty  on  Bills,  618,  n.  (2);  Coit  v.  Tracy,  8  Conn.  268. 

(d)  United  States  v.  Hartwell,  3  Cliff.  §  111.  A  foundation  must  first  be  laid 
C.  C.  221  ;  State  v.  Larkin,  49  N.  H.  by  sufficient  proof  apart  from  the  declara- 
39  ;  Card  v.  State,  109  Ind.  418  ;  People  tions  offered,  to  establish  prima  facie  (to 
V.  McQuade,  110  N.  Y.  284  ;  State  v.  the  satisfaction  of  the  judge)  the  fact  of 
Jackson,  29  lia.  An.  354  ;  Reid  v.  Louisi-  the  existence  of  a  partnership,  and  state- 
ana  State  Lottery,  lb.  388  ;  State  ?'.  ments,  declarations,  or  entries  in  books, 
Duncan,  64  Mo.  262;  Phillips  v.  State,  6  which  are  admissible  only  on  the  assump- 
Tex.  App.  364.  The  acts  and  declarations  tion  that  there  is  such  a  partnership,  are 
of  conspirators  in  their  endeavors  to  avoid  inadmissible  to  'prove  the  partnership, 
the  conserjuenr'es  of  their  crime,  i.  e.  de-  Abbott  v.  Pearson,  130  Mass.  191  ;  Dut- 
tection,  pursuit,  and  arrest,  are  considered  ton  v.  Woodman,  8  Cush.  (Mass.)  255  ; 
as  part  of  the  original  criminal  design.  Alcott  v.  Strong,  Id.  323;  Henry  i;.  Wil- 
Kelley  v.  People,  55  N.  Y.  565  ;  cmitra,  lard,  73  N.  C.  36.  But  they  may  be  ad- 
Peopfe  V.  Stanlev,  47  Cal.  113.  missible  to  prove  other  facts,  as  on  whose 
[c)  Reg.  V.  Blake,  6  Q.  B.  126.  credit  goods  were  sold,  or  that  they  were 
(a)  Scull's  App..  115  Pa.  St.  141  ;  sold  in  good  faith  in  a  belief  that  the 
Pierce  v.  Robert.s,  57  Conn.  40.  The  same  partnership  existed.  Greenwood  v.  Sias, 
limitation  to  this  rule  exists  as  to  that  21  Hun  (N,  Y),  391. 
concerning  the  declarations  of  conspirators. 


CHAP,    v.]  OF   HEARSAY,  167 

acts  only  by  the  several  members;  and,  of  course,  when  that 
existence  ceases  by  the  dissolution  of  the  firm,  the  act  of  an 
individual  member  ceases  to  have  that  effect;  binding  himself 
alone,  except  so  far  as  by  the  articles  of  association  or  of  dis- 
solution it  may  have  been  otherwise  agreed.^  An  admission, 
however,  by  one  partner,  made  after  the  dissolution,  in  regard 
to  business  of  the  firm,  previously  transacted,  has  been  held  to  be 
binding  on  the  firm. "^(6) 

2  Bell  V.  Jrorrison,  1  Peterfs,  371;  Burton  v.  Issitt,  5  B.  &  Aid.  267. 

3  This  doclnne  was  extended  by  Lord  Brougham,  to  tlie  admissiou  of  payment  to 
the  partner  alter  ihe  dissolution.  Pritchard  ?;.  Draper,  1  IJuss.  &  M  191,199,200.  See 
Wood  V.  Braddick,  1  Taunt.  104  ;  Wlutcomb  y.  Whitiuj,',  2  Doug.  652  ;  approved  in 
Mclntne  V.  Oliver,  2  Hawks,  209;   Beitz  v.  Fuller,  1  MeCord,  541,  Cady  v.  Shepherd, 

'11  Pick.  400;  Van  Reimsdyk  v.  Kane,  1  Gall.  635,  636.  See  also  Parker  v.  Merrill, 
6  Greeul.  41  ;  Martin  v.  Root,  17  Ma.ss.  223,  227  ;  Vinal  v.  Burrill,  16  Pick.  401  , 
Lefavour  v.  Yandes,  2  Blackf.  240;  Bridge  v.  Gray,  14  Pick.  55;  Gay  y.  Bowen,  8 
Met.  100;  Mann  v.  Locke,  11  N.  H.  246,  to  the  same  point.  In  New  York,  a  different 
doctrine  is  established.  Walden  v.  Sherburne,  15  Johns.  409,  Ho])kius  y.  Banks,  7 
Cowen,  650  ;  Clark  v.  Gleason,  9  Cowen,  57  ;  Baker  v.  Stackpole,  Id.  420.  So  in 
Louisiana.  Lambeth  v.  Vawter,  6  Rob.  (La.)  127.  See  also,  in  support  of  the  te.\t. 
Lacy  V.  M'Neile,  4  Dowl.  &  Ky.  7.  Whether  the  acknowledgment  of  a  debt  by  a 
partner,  after  di.ssohition  of  the  partnership,  will  be  sufficient  to  take  the  case  out  of  the 
statute  of  limitations,  and  revive  the  remedy  against  the  others,  has  been  very  much 
controverted  in  this  country  ;  and  the  authorities  to  the  point  are  conflicting.  In 
England,  it  is  now  settled  by  Lord  Tenterden's  Act  (9  Geo.  lY,  c.  14),  that  such 
acknowledgment,  or  new  promise,  independent  of  the  fact  of  part  jiayment,  shall  not 
have  such  effect,  except  against  the  party  making  it.  This  jjrovisioii  has  been  adojited 
in  the  laws  of  some  of  the  United  States.  See  Massachusetts,  Rev.  Sts.  c  120,  §§  14- 
17  ;  Vermont,  Rev.  St.  c.  58,  §§  23,  27.  And  it  has  since  been  holden  in  England, 
where  a  debt  was  originally  contracted  with  a  partneishij),  and  more  than  six  years 
afterwards,  but  within  six  years  before  action  brought,  the  partnership  having  been  dis- 
solved, one  partner  made  a  partial  payment  in  respect  of  the  debt,  —  that  this  barred 
the  operation  of  the  statute  of  limitations;  although  the  jury  found  that  he  made  the 
payment  by  concert  with  the  ])laintiffs,  in  the  jaws  of  bankruptcy,  and  iii  fraud  of  his 
late  partners.  Goddard  v.  Ingram,  3  Q.  B.  839.  The  American  cases  seem  to  have  turin-d 
mainly  on  the  question,  whether  the  admission  of  the  existing  indebtnient  amounted 
to  the  making  of  a  new  contract,  or  not.  The  courts  which  have  viewed  it  as  virtually 
a  new  contiact  have  held,  that  the  acknowledgment  of  the  debt  by  one  partner,  after 
the  dissolution  of  partnership,  was  not  admissible  against  his  copartner.  This  side  of 
the  question  was  argued  by  Mr.  Justice  Story,  with  his  accu.stomed  ability,  in  deliver- 
ing the  judgment  of  the  court  in  Bell  v.  Alorri.son,  1  Peters,  367  et  scq.;  where,  after 
stating  the  point,  he  proceeded  as  follows  :  "In  the  case  of  Bland  v.  Haselng,  2  Vent. 
151,  where  the  action  was  against  four  upon  a  joint  piomise,  and  the  plea  ot  the  stat- 
ute of  limitations  was  put  in,  and  the  jury  found  that  one  of  the  defendants  did  promise 
within  SIX  years,  and  that  the  others  did  not;  three  judges  against  Ventiis,  J.,  held 
that  the  plaintiff  could  not  have  judgment  against  the  defendant,  who  had  made  the 
promise.  This  case  has  been  explained  upon  the  ground,  that  the  verdict  did  not  con- 
form to  the  i)leadings,  and  establish  a  joint  promise.  It  is  very  doubtful,  upon  a  critical 
examination  of  the  report,  whether  the  opinion  of  the  court,  or  of  any  of  the  judges, 
proceeded  solely  ujjon  such  ground.  lu  Whitcomb  v.  Whiting,  2  Doug.  652,  decided  in 
1781,  in  an  action  on  a  joint  and  several  note  brought  against  one  of  the  makers,  it  was 
held,  that  proof  of  payment,  by  one  of  the  others,  ol  interest  on  the  note  and  ])ai  t  of  the 
principal,  within  six  years,  took  the  case  out  of  the  statute,  as  against  the  defendant  who 
was  sued.  Lord  Mansfield  said,  '  payment  by  one  is  payment  for  all,  the  one  acting 
virtually  for  all  the  rest;  and  in  the  same  manner,  an  admission  by  one  is  an  admission 
by  all,  and  the  law  raises  the  jiromise  to  pay,  when  the  debt  is  admitted  to  be  due. 

(h)  Loomis    v.    Loomis,    26  Vt.    198  ;     right  v.  Philpot,   16  Ga.  424;  Gilligan  o. 
Pierce  v.   Wood,  23  N.    H.   519  ;    Drum-     Tebbetts,  33  Me.  360.     . 


1G8  LAW    OF    EVIDENCE.  [PART    IF. 

§  113,   Agents.     A  kindred  juMueiplc  governs  in  regard  to  the 
declarations  of  agents.     The  principal  constitutes  the  agent  his 

This  is  the  whole  reasoning  reported  in  the  case,  and  is  certainly  not  very  satisfactory. 
It  assumes  that  one  party,  wiio  has  authority  to  discharge,  has  necessarily,  also,  author- 
ity to  charge  the  others;  tliat  a  virtual  agency  exists  in  eacli  joint  debtor  to  pay  for  the 
whole,  and  that  a  virtual  agency  exists  by  analogy  to  ciiaige  the  whole.  Now,  this 
very  position  constitutes  the  matter  in  controversy.  It  is  true,  that  a  payment  by  one 
does  enure  for  the  benefit  of  the  whole;  but  this  arises  not  so  much  fiom  any  virtual 
agency  for  the  whole,  as  by  operation  of  law  ;  for  the  jjuyment  extinguishes  tlie 
debt;  if  such  payment  were  maile  alter  a  ]iositive  refusal  or  jirohibition  of  tlie  other 
joint  debtors,  it  would  still  operate  as  an  extinguishment  of  the  debt,  and  the'creditor 
could  no  longer  sue  them.  In  truth,  he  who  pays  a  joint  debt,  pays  to  discharge  him- 
self ;  and  so  far  from  binding  the  others  conclusively  by  his  act,  as  virtually  theirs  also, 
he  cannot  recover  over  against  them,  in  contribution,  without  such  ])aymeiit  has  been 
rightfully  made,  and  ought  to  charge  them.  When  the  statute  has  run  against  a  joint 
debt,  the  reasonable  presumption  is  tluit  it  is  no  longer  a  subsisting  debt;  and,  there- 
fore, there  is  no  ground  ou  which  to  raise  a  virtual  agency  to  pay  that  which  is  not 
admitted  to  exist.  But  if  this  were  not  so,  still  there  is  a  great  ditieience  between 
creating  a  virtual  agency  which  is  for  the  benefit  of  all,  and  one  which  is  onerous  and 
prejudicial  to  all.  The  one  is  not  a  natural  or  necessary  consequence  from  the  other. 
A  person  may  well  authorize  the  payment  of  a  debt  for  which  he  is  now  liable,  and  yet 
lefuse  to  authorize  a  charge,  where  there  at  present  exists  no  legal  liability  to  pay.  Yet, 
if  the  principle  of  Lord  Mansfield  be  correct,  the  acknowledgment  of  one  joint  debtor 
will  bind  all  the  rest,  even  though  they  should  have  utterly  denied  the  del)t  at  the 
time  when  such  acknowledgment  was  made.  The  doctrine  of  VVhitcomb  v.  "VVhiting, 
has  been  followed  in  England  in  subsequent  cases,  and  was  resorted  to  in  a  strong  man- 
ner, in  Jackson  t;.  Fairbank,  2  H.  Bl.  340,  where  the  admission  of  a  creditor  to  prove 
a  debt,  ou  a  joint  and  several  note  under  bankru])tcy,  and  to  receive  a  dividend,  was 
held  sufficient  to  charge  a  solvent  joint  debtor,  in  a  several  action  against  him,  in  which 
he  pleaded  the  statute,  as  an  acknowledgment  of  a  subsisting  debt.  It  has  not,  how- 
ever, been  received  without  hesitation.  In  Clarke  v  Biadshaw,  3  Esp.  15.5,  Lord 
Eenyoii,  at  Nisi  Prius,  expressed  some  doubts  upon  it  ;  and  the  same  cause  went  oH  on 
another  ground.  And  in  Brandram  v.  Wharton,  1  Barn.  &  Aid.  463,  the  case  was  very 
much  shaken,  if  not  overturned.  Lord  Ellenborough,  upon  that  occasion  used  language, 
from  which  his  dissatisfaction  with  the  whole  doctrine  may  be  clearly  inferred.  '  This 
doctrine,'  said  he,  '  of  rebutting  the  statute  of  limitations,  by  an  acknowledgment  other 
than  that  of  the  party  himself,  began  with  the  case  of  Whitcomb  v.  Whiting.  By  that 
decision,  where,  however,  there  was  an  express  acknowledgment,  by  an  actual  payment  of 
a  part  of  the  debt  by  one  of  the  parties,  1  am  bound.  But  that  case  was  full  of  hard- 
ships, for  this  inconvenience  may  follow  from  it.  Sujifiose  a  person  liable  jointly 
with  thirty  or  forty  others,  to  a  debt  ;  he  may  have  actually  paid  it,  he  may  have  had 
in  his  possession  the  document  by  which  thai  payment  was  proved,  but  may  have  lost 
his  receipt.  Then,  though  this  was  one  of  the  very  cases  which  this  statute  was  passed 
to  protect,  he  may  still  be  bound,  ami  his  liability  be  renewed,  by  a  random  acknowl- 
edgment made  by  some  one  of  the  thirty  or  forty  others,  who  may  be  careless  of  what 
mischief  he  is  doing,  and  who  may  even  not  know  of  the  payment  which  has  been  made. 
Beyond  that  case,  therefore,  I  am  not  j)rei)ared  to  go,  so  as  to  dejirive  a  party  of  the 
advantage  given  him  by  the  statute,  by  means  of  an  imi)lied  acknowledgment.'  In  the 
American  courts,  so  far  as  our  researches  have  extended,  few  cases  have  been  litigated 
upon  this  question.  In  Smith  v.  Ludlow,  6  Johns,  268,  the  suit  was  brought  against 
both  partners,  and  one  of  them  pleaded  the  statute.  Upon  the  dissolution  of  the  part- 
nership, public  notice  was  given  that  the  other  partner  was  authorized  to  adjust  all 
accounts  ;  and  an  account  signed  by  him,  after  such  advertisement,  and  witliin  six 
years,  was  introduced.  It  was  also  ])roved,  that  the  plaintiff  called  on  the  partner,  who 
jtleaded  the  statute,  before  the  commencement  of  the  suit,  and  requested  a  settlement, 
and  that  he  then  admitted  an  account,  dated  in  1797,  to  have  been  made  out  by  him  ; 
that  he  thought  the  account  had  been  settled  by  the  other  defendant,  in  whose  hands 
the  books  of  partnership  were  ;  and  that  he  would  see  the  other  defendant  on  the  sub- 
ject, and  communicate  the  result  to  the  jtlaintifT.  The  court  held  that  this  was  suffi- 
cient to  take  the  case  out  of  tlie  statute  :  and  said  tliat,  without  any  express  authority, 
the  confession  of  one  jiartner,  after  the  dissolution,  will  take  a  debt  out  of  the  statute. 
The  acknowledgment  w  ill  not,  of  itself,  be  evidence  of  au  original  debt ;  for  that  would 


CHAP,    v.]  OP    HEARSAY.  169 

representative,  in  the  transaction  of  certain  business;  whatever, 
therefore,  the  agent  does,  in  the  lawful  prosecution  of  that  busi- 

euable  one  jiarty  to  bind  the  other  in  new  contracts.     But  tlie  original  debt  being 
proved  or  admitted,  the  confession  of  one  will  bind  the  other,  so  as  to  prevent  him 
from  availing  himself  of  the  statute.     Tiiis  is  evident,  from  the  casus  of  Wliitcomb  v. 
Whiting,  and  Jaclvson  v.  Fairbank  ;  and  it  results  necessarily  irom  the  power  given 
to  adjust  accounts.     The  court  also  thought  the  acknowledgment  of  the  partner,  set- 
ting up  the  statute,  was  sufficient  of  itself  to  sustain  the  action.     Tliis  case  has  the 
peculiarity  of  an  acknowledgment  made  by  both  [>artuers,  and  a  formal  acknowledg- 
ment by  the  partner  who  was  authorized  to  adjust  the  accounts  after  the  dissolution  of 
the  jiartnership.     There  was  not,  therefore,  a  virtual,   but  an  exjuess  and  notorious 
agency,  devolved  on  him,  to  settle  the  account.     The  correctness  of  the  decision  cannot, 
upon  the  general  view  taken   by  the  court,  be  questioned.      In  Roosevelt  v.  Marks,  6 
Johns.  Ch.   206,  291,  Mr.   Chancellor  Kent  admitted  the  authority  of  Whitcomb  v. 
Whiting,  but  deiued  that  of  Jackson  v.  Fairbanks,  for  reasons  which  appear  to  us  solid 
and  satisfactory,   (c)     Upon  some  other  cases  in  New  York,   we  shall  have  occasion 
hereafter  to  comment,     in  Hunt  v.  Bridghara,  2  Pick.   581,  the   Supreme  Court  of 
Massachusetts,  upon  the  authority  of  the  cases  in  Douglas,  H.  Blackstone,  and  Johnsfon, 
held,  that  a  jiartial  payment  by  the  principal  debtor  on  a  note,  took  the  case  out  of  the 
statute  of  limitations,  as  against  a  surety.     The  court  do  not  proceed  to  any  reasoning  to 
establish  the  princip'e,  considering  it  as  the  result  of  the  authorities.     Shelton  v.  Cocke, 
3  Munford,  191,  is  to  tlie  same  effect  ;  and  contains  a  mere  annunciation  of  the  rule, 
without  any  discussion  of  its  principle.     Simpson  v.  Morrison,  2  Bay,  533,  proceeded 
ui)on  a  broader  ground,  and  assumes  the  doctrine  of  the  case  in  1  Taunt.  104,  herein- 
after noticed  to  be  correct.     Whatever  may  be  the  just  influence  of  such  recognitions  of 
the  principles  of  the  English  cases,  in  other  States,  as  the  doctrine  is  not  so  settled  in 
Kentucky,  we  must  resort  to  such  recognition  only  as  furnishing  illustrations  to  assist 
our  reasoning,  and  decide  the  case  now  as  if  it  had  never  been  decided  before.     By  tlie 
general  law  of  partnership,  the  act  of  each  partner,  during  the  continuance  of  the  part- 
nership, and  within  the  scope  of  its  objects,  binds  all  the  others.     It  is  considered  the 
act  of  each,  and  of  all,  resulting  from  a  general  and  mutual  delegation  of  authority. 
Each  partner  may,  therefore,  bind  the  partnershi])  by  his  contracts  in  the  partnersliip 
business  ;  but  he  cannot  bind  it  by  any  contracts  beyond  those  limits.     A  dissolution, 
however,  puts  an  end  to  the  authority.     By  the  force  of  its  terms,  it  operates  as  a 
revocation  of  all  power  to  create  new  contracts  ;  and  the  right  of  partners,  as  such, 
can  extend  no  further  than  to  settle  the  partnership  concerns  already  existing,  and  to 
distribute  the  remaining  funds.     Even  this  right  may  be  qualified,  and  restrained,  by 
the  express  delegation  of  the  whole  authority  to  one  of  the  partners.     The  question  is 
not,  however,  as  to   the  authority  of  a  partner  after   the   dissolution    to   adjust   an 
admitted    and    subsisting   debt ;   we    mean,  admitted    by  the    whole    partnership   or 
unbarred  by  the  statute  ;    but  whether  he  can,  by  his  sole  act,  after   the   action  is 
barred  by  lapse  of  time,  revive  it  against  all  the  partners,  without  any  new  authority 
communicated  to  him  for  this  purpose.     We  think  the  proper  resolution  of  this  point 
depends  upon  another ;    that  is,  whether  the   acknowledgment   or  promise  is   to   be 
deemed  a  mere  continuation  of  the  original  promise,  or  a  new  contract,  springing  out 
of,  and  supported  by,  the  original  consideration.     We  think  it  is  the  latter,  both  u))on 
principle  and  authority  ;  and  if  so,  as  after  the  dissolution  no  one  partner  can  create 
a  new  contract,  binding  upon  the  others,  his  acknowledgment  is  inoperative  and  void, 
as  to  them.     There  is  some  confusion  in  the  language  of  the  books,  resulting  from  a 
want  of  strict  attention  to  the  distinction  here  indicated.     It  is  often  said,  that  an 
acknowledgment  revives  the  promise,  when  it  is  meant,  that  it  revives  the  debt  or 
cause  of  action.     The  revival  of  a  debt  supposes  that  it  has  once  been  extinct  and  gone  ; 
that  there  has  been  a  period  in  which  it  had  lost  its  legal  use  and  validity.     The  act 
which  revives  it   is   what   essentially  constitutes   its  new  being,  and   is   inseparable 
from  it.     It  stands  not  by  its  original  force,  but  by  the  new  promise,  which  imparts 
vitality  to  it.     Proof  of  the  latter  is  indispensable,  to  raise  the  assumpsit,  on  which  au 
action  can  be  maintained.     It  was  this  view  of  the  matter  which  first  created  a  doubt, 

(c)  Whitcomb   v.  Whiting,  and  Jack-  2  Russ.  153)  ;  and  they  are  regarded  with 

son  V.  Fairbank,  are  not  now  regarded  with  still  less  in  the  courts  of  this  country.    Van 

much  consideration  in  the  English  courts  Keuren  v.  Parmelee,  2  Conist.  (\.  Y.)  523. 

(Davies  v.  Edwards,  6  Eng.  L.  &  Eq.  520  ;  See  also  Angellon  Limitations,  Gthed.  §  260. 


170  LAW   OP   EVIDENCE.  [PART   II. 

ncss,  is  the  act  of  the  principal  whom  he  represents.  And, 
"  where  the  acts  of  the  agent  will  bind  the  principal,  there  his 

whether  it  was  not  necessary  that  a  new  consideration  should  be  proved  to  support  the 
promise  since  the  old  consideration  was  gone.  That  doubt  has  been  overcome  ;  and  it 
is  now  held,  that  the  original  consideration  is  sufficient,  if  recognized,  to  uphold  the 
new  promise,  although  the  statute  cuts  it  off,  as  a  support  for  the  old.  What,  indeed, 
would  seem  to  be  decisive  on  this  subject  is,  that  the  new  promise,  if  qualified  or 
conditional,  restrains  the  rights  of  the  i)arty  to  its  own  terms  ;  and  if  he  cannot  recover 
by  those  terms,  he  cannot  recover  at  all.  If  a  person  j)romise  to  pay,  upon  condition 
that  the  other  do  an  act,  performance  must  be  shown,  before  any  title  accrues.  If  the 
declaration  lays  a  promise  by  or  to  an  intestate,  pi'oof  of  the  acknowledgment  of  the 
debt  by  or  to  his  personal  representative  will  not  maintain  the  writ.  Why  not,  since 
it  establishes  the  continued  existence  of  the  debt.  The  plain  reason  is,  that  the  iiromise 
is  a  new  one,  by  or  to  the  administrator  himself,  upon  the  original  consideration  ;  and 
not  a  revival  of  the  original  promise.  So,  if  a  man  promises  to  pay  a  pre-existing  debt, 
barred  by  the  statute,  when  he  is  able,  or  at  a  future  day,  his  ability  must  be  shown, 
or  tlie  time  must  be  jiassed  before  the  action  can  be  maintained.  Why  ?  Because  it 
rests  on  the  new  promise,  and  its  terms  must  be  complied  with.  We  do  not  here  speak 
of  the  form  of  alleging  the  promise  in  the  declaration  ;  upon  which,  perhaps,  there  has 
been  a  diversity  of  opinion  and  judgment  ;  but  of  the  fact  itself,  whether  the  promise 
ought  to  be  laid  in  one  way  or  another,  as  an  absolute,  or  as  a  conditional,  promise  ; 
which  may  depend  on  the  rules  of  pleading.  This  very  point  came  before  the  twelve 
judges,  in  the  case  of  Hyleing  v.  Hastings,  1  Ld.  Eaym.  389,  421,  in  the  time  of  Lord 
Holt.  There,  one  of  the  points  was,  '  whether  the  acknowledgment  of  a  debt  within 
six  years,  would  amount  to  a  new  promise,  to  bring  it  out  of  the  statute;  and  they  were 
all  of  the  opinion  that  it  would  not,  but  that  it  was  evidence  of  a  promise.'  Here, 
then,  the  judges  manifestly  contemplated  the  acknowledgment,  not  as  a  continuation 
of  the  old  promise,  but  as  evidence  of  a  new  promise  ;  and  that  it  is  the  new  promise 
which  takes  the  case  out  of  the  statute.  Kow,  what  is  a  new  promise  but  a  new  con- 
tract; a  contract  to  paj^,  upon  a  pre-existing  consideration,  which  does  not  of  itself  bind 
the  party  to  pay  inde})endently  of  the  contract  ?  So,  in  Boydell  v.  Drummond,  2  Campb. 
157,  Lord  Ellenborough,  with  his  characteristic  precision,  said,  '  If  a  man  acknowledges 
the  existence  of  a  debt,  barred  by  the  statute,  the  law  has  been  sui)posed  to  raise  a  new 
promise  to  pay  it,  and  thus  the  remedy  is  revived.'  And  it  may  be  affirmed,  that  the  gene- 
ral current  of  the  English  as  well  as  the  American  authorities  conforms  to  this  view  of  the 
operation  of  an  acknowledgment.  In  Jones  f.  Moore,  5  Binney,  573,  Mr.  Chief  Justice 
Tilghman  went  into  an  elaborate  examination  of  this  very  point ;  and  came  to  the  con- 
clusion, from  a  review  of  all  the  cases,  that  an  acknowledgment  of  the  debt  can  only 
be  considered  as  evidence  of  a  new  promise  ;  and  he  added,  '  I  cannot  comprehend  the 
meaning  of  reviving  the  old  debt  in  any  other  manner,  than  by  a  new  promise.'  There 
is  a  class  of  cases,  not  yet  adverted  to,  which  materially  illustrates  the  right  and  powers 
of  partners,  after  the  dissolution  of  the  partnership,  and  bears  directly  on  the  point 
under  consideration.  In  Hackley  v.  Patrick,  3  Johns.  536,  it  was  said  by  the  court, 
that  'after  a  dissolution  of  the  partnership,  the  power  of  one  i)arty  to  bind  the  others 
wholly  ceases.  There  is  no  reason  why  this  acknowledgment  of  an  account  should  bind 
his  copartners,  any  more  than  his  giving  a  jiromissory  note  in  the  name  of  the  firm,  or 
any  other  act.'  And  it  was  therefore  held,  that  the  plaintiti"  must  produce  further  evi- 
dence of  the  existence  of  an  antecedent  debt,  before  he  could  recover  ;  even  though  the 
acknowledgment  was  by  a  partner  authorized  to  settle  all  the  accounts  of  the  firm. 
This  doctrine  was  again  recognized  by  the  same  court,  in  Walden  v.  Sherburne,  15 
Johns.  409,  424,  although  it  was  admitted  that  in  Wood  v.  Braddick,  1  Taunt.  104, 
a  dilferent  decision  had  been  had  in  England.  If  this  doctrine  be  well  founded,  as  we 
think  it  is,  it  furnishes  a  strong  ground  to  (piestion  the  efficacy  of  an  acknowledgment 
to  bind  the  partnership  for  any  purpose.  If  it  does  not  establish  the  existence  of  a 
debt  against  the  partnership,  why  should  it  be  evidence  against  it  at  all  ?  If  evidence, 
aliunde,  of  facts  within  the  reach  of  the  statute,  as  the  existence  of  a  debt,  be  necessary 
before  the  acknowledgment  binds,  is  not  this  letting  in  all  the  mischiefs  against  which 
the  statute  intended  to  guard  the  parties  :  viz.,  the  introduction  of  stale  and  dormant 
demands  of  long  standing  and  of  uncertain  proof?  If  the  acknowledgment,  per- se, 
does  not  bind  the  other  partners,  where  is  the  propriety  of  admitting  proof  of  an  ante- 
cedent debt  extinguished  by  the  statute  as  to  them,  to  be  revived  without  their  con- 
sent ?    It  seems  difficult  to  find  a  satisfactory  reason  why  an  acknowledgment  should 


CHAP,    v.]  OF    HEARSAY.  171 

representations,  declarations,  and  admissions,  respecting  the 
subject-matter,  will  also  bind  him,  if  made  at  the  same  time, 
and  constituting  part  of  the  res  gestce. "  ^    They  are  of  the  nature 

raise  a  new  promise,  when  tlie  consideration  upon  wliich  alone  it  rests,  as  a  legal  obliga- 
tion, is  not  coupled  with  it  in  such  a  shape  as  to  bind  the  parties  ;  that  the  parties  are 
not  bound  by  the  admission  of  the  debt  as  a  debt,  but  are  bound  by  the  acknowledgment 
ol'  the  debt,  as  a  promise,  upon  extrinsic  proof.  The  doctrine  in  1  Taunt.  104,  stands 
upon  a  cleai',  if  it  be  a  legal  ground  ;  that  as  to  the  things  past,  the  partnership  con- 
tinues, and  always  must  continue,  notwithstanding  the  dissolution.  That,  however,  is 
a  matter  which  we  are  not  prepared  to  ailmit,  and  constitutes  the  very  ground  now  in 
controversy.  The  light  in  which  we  are  disposed  to  consider  this  question  is,  that  after 
a  dissolution  of  a  partnership,  no  partner  can  create  a  cause  of  action  against  the  other 
partners,  except  by  a  new  authority  communicated  to  him  for  that  purpose.  It  is  wholly 
immaterial  what  is  the  consideration  which  is  to  raise  such  cause  of  action,  —  whether  it 
be  a  supposed  pre-existing  debt  of  the  partnership,  or  any  auxiliary  consideration  which 
might  prove  beneficial  to  them.  Unless  adopted  by  them,  they  are  not  bound  by  it. 
When  the  statute  of  limitations  has  once  run  against  a  debt,  the  cause  of  action  against 
the  partnership  is  gone.  The  acknowledgment,  if  it  is  to  operate  at  all,  is  to  create  a  new 
cause  of  action;  to  revive  a  debt  which  is  extinct ;  and  thus  to  give  an  action  which 
has  its  life  from  the  new  promise  implied  by  law  from  such  an  acknowledgment,  and 
operating  and  limited  by  its  purport.  It  is,  then,  in  its  essence,  the  creation  of  a  new 
right,  and  not  the  enforcement  of  an  old  one.  We  think,  that  the  power  to  create  such 
a  right  does  not  exist  after  a  dissolution  of  the  partnership  in  any  partner." 

it  is  to  be  observed,  that  in  this  opinion  the  court  were  not  unanimous  ;  and  that  the 
learned  judge  declares  that  the  majority  were  "principally,  though  not  exclusively, 
inlluenced  by  the  course  of  decisions  in  Kentucky,"  where  the  action  aiose.  A  similar 
view  of  the  question  has  been  taken  by  the  courts  of  Pennsylvania,  both  before  and 
since  the  decision  of  Bell  v.  Morrison  ;  Levy  v.  Cadet,  17  Serg.  &  Raw.  127  ;  Seari'dit 
V.  Craighead,  ]  Pa.  135  ;  and  it  has  been  followed  by  the  Courts  of  Indiana.  Yandesi;. 
Lefavour,  2  Blackf.  371.  Other  judges  have  viewed  such  admissions  not  as  going  to 
create  a  new  contract,  but  as  mere  acknowledgments  of  the  continued  existence  of  a 
debt  previously  created,  thereby  repelling  the  presumption  of  payment,  resulting  from 
lapse  of  time,  and  thus  taking  the  case  out  of  the  operation  of  the  statute  of  limitations. 
To  this  effect  are  White  v.  Hale,  3  Pick.  291;  Martin  v.  Root,  17  Mass.  222,  227;  Cady 
V.  Shepherd,  11  Pick.  400 ;  Vinal  v.  Burrill,  16  Pick.  401  ;  Bridge  v.  Gray,  14  Pick. 
61  ;  Patterson  v.  Choate,  7  Wend.  441  ;  Hopkins  v.  Banks,  7  Cowen,  650  ;  Austin  v. 
Bostwick,  9  Conn.  496;  Greenleaf  v.  Quincy,  3  Fairf.  11;  Mclntire  v.  Oliver,  2  Hawks, 
209  ;  Ward  v.  Howell,  5  Har.  &  Johns.  60  ;  Fisher  v.  Tucker,  1  McCord,  Ch.  175  ; 
Wheelock  v.  Doolittle,  18  Vt.  440.  In  some  of  the  cases  a  distinction  is  strongly 
taken  between  admissions  which  go  to  establish  the  original  existence  of  the  debt,  alid 
those  which  only  show  that  it  has  never  been  paid,  but  still  remains  in  its  original 
force  :  and  it  is  held,  that  before  the  admission  of  a  partner,  made  after  the  dissolution, 
can  be  received,  the  debt  must  first  be  proved,  aliunde.  See  Owings  v.  Low,  5  Gill 
&  .lohns.  134,  144;  Smith  v.  Ludlow,  6  Johns.  267;  Patterson  v.  Choate,  7  Wend.  441, 
445;  Ward  v.  Howell,  Fisher  v.  Tucker,  Hopkins r.  Banks,  Vinal  v.  Burrill,  uhi  supra; 
Shelton  V.  Cocke,  3  Munf.  197.  In  Austin  v.  Bostwick,  the  partner  making  the  ad- 
mission had  become  insolvent;  but  this  was  held  to  make  no  difference,  as  to  the  ad- 
missibility of  his  declaration.  A  distinction  has  always  been  taken  between  admissions 
by  a  partner  after  the  dissolution,  but  before  the  statute  of  limitations  has  attached  to 
the  debt,  and  those  made  afterwards  ;  the  former  being  held  receivable,  and  the  latter 
not.  Fisher  v.  Tucker,  1  McCord,  Ch.  175.  And  see  Scales  v.  Jacob,  3  Bing.  638  ; 
Gardner  v.  M'Mahon,  3  Q.  B.  566.  See  further  on  the  general  doctrine,  ;ws<,  §"l74,  n. 
In  all  cases  where  the  adniission,  whether  of  a  partner  or  other  joint  contractor,  is 
received  against  his  companions,  it  must  have  been  made  in  good  faith.  Coit  v. 
Tracy,  8  Conn.  268.  See  also  Chardon  v.  Oliphant,  2  Const.  685  ;  cited  in  Collyer 
on  Partn.  236,  n.  (2d  Am.  ed. ).  It  may  not  be  useless  to  observe,  that  Bell  v.  Morri- 
son was  cited  and  distinguished,  partly  as  founded  on  the  local  law  of  Kentucky,  in 
Parker  v.  Merrill,  6  Greenl,  47,  48  ;  and  in  Greenleaf  v.  Quincy,  3  Fairf.  11  ;  and 
that  it  was  not  cited  in  the  cases  of  Patterson  v.  Choate,  Austin  v.  Bostwick,  Cady  v. 
Shepherd,  Vinal  v.  Burrill,  and  Yandes  v.  Lefavour,  though  these  were  decided  subse- 
quent to  its  publication. 

1  Story  on  Agency,   §§  134-137.      School   Furniture  Co.  v.   Warsaw  Sch.  Dist. 
122  Pa.  St.  500. 


172  LAW   OP   EVIDENCE.  [PART   II. 

of  original  evidence,  and  not  of  hearsay;  the  representation  or 
statement  of  the  agent,  in  such  cases,  being  the  ultimate  fact  to 
be  proved,  and  not  an  admission  of  some  other  fact.^  But,  it 
must  be  remembered,  that  the  admission  of  the  agent  cannot 
always  be  assimilated  to  the  admission  of  the  principal.  The 
party's  own  admission,  whenever  made,  may  be  given  in  evidence 
against  him ;  but  the  admission  or  declaration  of  his  agent  binds 
him  only  when  it  is  made  during  the  continuance  of  the  agency 
in  regard  to  a  transaction  then  depending  et  dum  fervet  opus. 
It  is  because  it  is  a  verbal  act,  and  part  of  the  7'es  gestce,  that  it 
is  admissible  at  all ;  and,  therefore,  it  is  not  necessary  to  call  the 
agent  himself  to  prove  it;-^  but,  wherever  what  he  did  is  admis- 
sible in  evidence,  there  it  is  competent  to  prove  what  he  said 
about  the  act  while  he  was  doing  it ;  *  and  it  follows,  that,  where 
his  right  to  act  in  the  particular  matter  in  question  has  ceased 
the  principal  can  no  longer  be  affected  by  his  declarations,  they, 
being  mere  hearsay.^  (a) 

2  1  Phil.  Evid.  381. 

3  Doe  V.  Hawkins,  2  Q.  B.  212  ;   Sauiiiere  v.  Wode,  3  Harrison,  299. 

4  Garth  v.  Howard,  8  Bing.  451  ;  Fairlie  v.  Hastinf^s,  10  Ves.  123,  127;  Me- 
chanics' Bank  of  Alexandria  v.  Bank  of  Columbia,  5  Wheat.  336,  337;  Langhorn 
V.  Allnutt,  4  Taunt.  519;  per  Gibbs,  J.;  Hannay  v.  Stewart,  6  Watts,  487,  489; 
Stockton  V.  Demuth,  7  Watts,  39  ;  Story  on  Agency,  126,  129,  n.  (2)  ;  Woods  v. 
Banks,  14  N.  H.  101;  Cooley  v.  Norton,  4  Gush.  93.  In  a  case  of  libel  for  damages, 
occasioned  by  collision  of  ships,  it  was  held  that  the  admission  of  the  master  of  the  sliip 
proceeded  against  might  well  be  articulated  in  the  liljel.  The  ilanchester,  1  W.  Rob. 
62.  But  it  does  not  appear,  in  the  report,  whether  the  admission  was  made  at  the  time 
of  the  occurrence  or  not.  The  question  has  been  discussed,  whether  there  is  any  sub- 
stantial distinction  between  a  written  entry  and  an  oral  declaration  by  an  agent,  of  the 
fact  of  his  having  received  a  particular  rent  for  his  employer.  The  case  was  one  of  a 
sub-agent,  employed  by  a  steward  to  collect  rents,  and  the  declaration  offered  in  evi- 
dence was,  "  M.  N.  paid  me  the  half-year's  rent,  and  here  it  is."  Its  admissibility 
was  argued,  both  as  a  declaration  against  interest,  and  also,  as  made  in  the  course  of 
discharging  a  duty  ;  and  the  court  inclined  to  admit  it,  but  took  time  for  advisement. 
Fursdom  v.  Clogg,  10  M.  &  W.  572;  infra,  §  149.  See  also  Regina  v.  Hall,  8  C.  &  P. 
358  ;  Allen  v.  Denstone,  Id.  760;  Lawrence  i;.  Thatcher,  6  C.  &  P.  669;  Bank  of  Mon- 
roe V.  Field,  2  Hill,  445;  Doe  v.  Hawkins,  2  Q.  B.  212.  Whether  the  declaration  or  ad- 
mission of  the  agent  made  in  regard  to  a  transaction  already  past,  but  while  his  agency 
for  similar  objects  still  continues,  will  bind  the  principal,  does  not  appear  to  have  been 
expressly  decided;  but  the  weight  of  authority  is  in  the  negative.  See  the  observa- 
tions of  Tindal,  C.  J.,  in  Garth  v.  Howard,  supra.  See  also  Mortimer  v.  M'Callan,  6 
M.  &  W.  58,  69,  73  ;  Haven  v.  Brown,  7  Greenl.  421,  424  ;  Thallhimer  v.  Brincker- 
hotr,  4  Wend.  394;  City  Bank  of  Baltimore  v.  Bateman,  7  Har.  &  Johns.  104;  Stewart- 
son  V.  Watts,  8  Watts,  392;  Betham  v.  Benson,  Gow,  45,  48,  n.  ;  Baring  v.  Clark,  19 
Pick.  220  ;  Parker  v.  Green,  8  Met.  142,  143  ;  Plumer  v.  Briscoe,  12  Jur.  351  ;  11 
Q.  B.  46.  Where  the  fraudulent  lepresentations  of  the  vendor  are  set  up  in  defence 
of  an  action  for  the  price  of  land,  the  defence  may  be  maintained  by  proof  of  such 
representations  by  the  vendor's  agent  who  effected  the  sale  ;  but  it  is  not  competent  to 
inquire  as  to  his  motives  or  inducements  for  making  them.  Hammatt  v.  Emerson,  14 
Shepl.  308. 

s  Reynolds  v.  Rowley,  3  Rob.  (La.)  201  ;  Stiles  v.  Western  Railroad  Co.,  8  Met. 
44. 

(n)  Stiles  v.  Danville,  42  A^'t,  282  ;  107  ;  Bnrnham  v.  Ellis,  39  Me.  319.  In 
Hydorn  v.  Cushman,   16  Hun  (N.  Y.),     order  to  warrant  the  proof  of  admissions 


CHAP.    V.J 


OF    HEARSAY. 


173 


§  114.  Declarations  of  agents.  It  is  to  be  observed,  that  the 
rule  admitting  the  dechirations  of  the  agent  is  founded  upon  the 
legal  identity  of  tlic  agent  and  the  principal;  and  therefore  they 
bind  only  so  far  as  there  is  authority  to  make  them,  (a)  Where 
this  authority  is  derived  by  implication  from  authority  to  do  a 


by  an  agent,  one  or  more  of  the  following 
facts  must  exist:  It  must  appear  that  tlie 
a^cnt  was  sjjecially  authorized  to  make 
them;  or  his  powers  must  have  been  such 
as  to  constitute  him  the  general  repre- 
sentative of  the  principal,  having  the 
management  of  the  entire  business;  or  the 
admissions  must  have  formed  part  of 
the  construction  of  the  contract ;  or,  if 
they  are  non-contractual  they  must  have 
been  a  part  of  the  res  gestce.  It  is  im- 
perative in  cases  of  alleged  tortious  con- 
duct, such  as  negligence,  unless  the  act  is 
specially  authorized,  that  the  admissions 
of  the  agent  must  be  part  of  the  res  gestce, 
and  contemporaneous  with  the  act  of 
agency,  otherwise  they  are  hearsay.  Oil 
City  Fuel  Supply  Co.  v.  Boundy,  122  Pa. 
St.  460  ;  Erie  &  W.  V.  R.  R.  Co.  v. 
Smith,  125  Pa.  St.  264  ;  Durkee  v.  Cent. 
Pac.  R.  R.  Co.,  69  Cal.  534.  The  declara- 
tions of  the  driver  of  a  cow  (Luby  v.  Hud- 
son River  R.  R.  Co.,  17  N.  Y.  131),  of  the 
conductor  (Griffin  v.  Montgomery  R.  R.  Co., 
26  Ga.  Ill),  or  engineer  (Robin.son  v.  Fitch- 
burg  R.  R.  Co.,  7  Gray  (Mass.),  92)  of  a 
railway  train,  as  to  the  mode  in  which  an 
accident  occurred,  made  after  the  occur- 
rence, are  inadmissible  as  hearsay  ;  but 
the  admissions  of  a  like  nature  by  the 
general  agent  or  president  of  a  company 
(Charleston  R.  R.  Co.  v.  Blake,  12  Rich. 
(S.C.)  Law,  634),  or  of  a  baggage-master  in 
answer  to  in(|uiries  for  lost  baggage,  —are 
admissible,  as  within  the  scope  of  their 
general  duties.  Morse  v.  Conn.  River  R. 
R.  Co.,  6  Gray  (Mass.),  450.  See  also 
Ins.  Co.  V.  Woodruff,  2  Dutch.  (N.J.) 
541,  where  the  admissions  of  an  insurance 
agent,  made  after  a  loss,  authorized  to  re- 
ceive premiums  and  deliver  policies,  as  to 
the  delivery  of  a  policy,  were  hehl  admis- 
sible. And  see.  post,  §  114,  n.  And  the 
general  principle  is  that  the  admissions 
must  be  made  while  the  agent  is  perform- 
ing some  act  which  is  in  the  scope  of  his 
authority,  and  with  reference  to  that  act 
which  is  being  done.  Gutchess  v.  Gutchess, 
66  Brad.  (N.  Y.)  483  ;  Newton  Mfg.  Co. 
V.  White,  53  Ga.  395  ;  Siven.son  v.  Ault- 
raan,  14  Kan.  273  ;  Michigan  Central  R. 
R.  Co.  V.  Carrow,  73  111.  348  ;  Hunt- 
ingdon R.  R.  Co.  V.  Decker,  82  Pa. 
St.'  119. 

(a)  Or  in  other  words,  the  rule  is  that 


the  declarations  of  the  agent  are  admissi- 
ble in  evidcmce  against  his  ])rincipal  when 
the  i)rincipal  is  a  j)arty  to  the  transaction 
the  agent  is  engaged  in  for  his  principal 
at  the  time.  Hawk  v.  Applegate,  37  JMo. 
App.  39  ;  Rouse  v.  Mohr,  29  111.  App.  324  ; 
Updyke  v.  Wheeler,  37  Mo.  App.  686. 
Thus  where  it  was  a  material  fact  whether 
or  not  the  plaintiff  was  employed  by  the 
agent  of  the  defendant,  and  the  plaintiff 
offered  as  evidence  of  such  employment, 
declarations  of  an  agent  of  the  defendant, 
who  had  authority  to  hire  employees,  in 
conversation  with  a  third  person,  it  was 
held  that  these  declarations  of  the  agent 
were  not  a  part  of  his  business  of  employ- 
ing people  for  the  defendant,  and  that  his 
declarations  were  therefore  inadmissible. 
Bensley  v.  Brockway,  27  111.  App.  412; 
Curran  i'.  Pullman  Palace  Car  Co.,  27 
111.  Apj).  572.  This  exclusion  is  based 
upon  the  doctrine  applicable  to  princi- 
pal and  agent  which  excludes  from  con- 
sideration as  against  the  former,  the  acts 
and  declarations  of  the  latter,  when  not 
engaged  in  the  execution  of  his  agency, 
and  not  relating  to  the  subject  of  its  pur- 
pose in  which  he  is  at  the  time  engaged. 
It  should  be  noted,  however,  that  while 
that  rule  rests  upon  sound  and  well  settled 
])rinciples,  it  may  not  be  applicable  when 
the  question  is  one  of  fraud  of  the  agent  in 
abuse  of  his  trust  and  confidence  with  the 
person  towards  whom  he  holds  such  rela- 
tion. Then  the  field  of  inquiry  is  oyien  to 
j)rove  the  fact  upon  which  such  charge  is 
founded.  Jones  v.  Jones,  120  N.  Y.  601. 
The  common  rule  of  agencyisalso  applicable 
to  such  declarations,  i.  e.  that  the  agency 
must  be  proved  before  the  acts  or  declara- 
tions of  the  agent  will  affect  the  principal. 
Cent.  Penn.  Teleph.  Co.  v.  Thompson, 
112  Pa.  St.  131;  Francis  v.  Edwards,  77 
N.  C.  271  ;  Galbreath  v.  Cole,  61  Ala. 
139  ;  Central  Branch  U.  P.  R.  R.  Co.  v. 
Butman,  22  Kan.  639.  The  declarations 
of  a  son  while  employed  in  performing  a 
contract  for  his  services,  made  by  him  as 
agent  for  his  father,  are  not  admissible  in 
evidence  to  prove  the  terms  of  the  con- 
tract. Corbin  v.  Adams,  6  Cush.  (Mass.) 
93.  See  Prinbup  v.  Mitchell,  17  Ga.  558  ; 
Covington,  &c.  R.  R.  Co.  v.  Ingles,  15  1>. 
Mon.  637  ;  Tuttle  v.  Brown,  4  Gray,  457,' 
460. 


174  LAW   OP   EVIDENCE.  [PAHT   II. 

certain  act,  the  declarations  of  the  agent,  to  Be  admissible,  must 
be  part  of  the  7-es  gest(K.  (b)  An  authority  to  make  an  admission 
is  not  necessarily  to  be  implied  from  an  authority  previously  given 
in  respect  to  the  thing  to  which  the  admission  relates.^  Thus  it 
has  been  held,^  that  the  declarations  of  the  bailee  of  a  bond,  en- 
trusted to  him  by  the  defendant,  were  not  admissible  in  proof  of 
the  execution  of  the  bond  by  the  bailor,  nor  of  any  other  agree- 
ments between  the  plaintiff  and  defendant  respecting  the  subject. 
The  res  r/estce  consisted  in  the  fact  of  the  bailment,  and  its  nature ; 
and  on  these  points  only  were  the  declarations  of  the  agent  iden- 
tified with  those  of  the  principal.  As  to  any  other  facts  in  the 
knowledge  of  the  agent,  he  must  be  called  to  testify,  like  any 
other  witness.^ 

§  115.  Entries  by  third  persons.  It  is  upon  the  same  ground 
that  certain  entries,  made  by  third  persons,  are  treated  as  original 
evidence.  Entries  by  third  persons  are  divisible  into  two  classes : 
first,  those  which  are  made  in  the  discharge  of  official  duty,  and 
in  the  course  of  professional  employment;  and,  secondly,  mere 
private  entries.  Of  these  latter  we  shall  hereafter  speak.  In 
regard  to  the  former  class,  the  entry,  to  be  admissible,  must  be 
one  which  it  was  the  person's  duty  to  make,  or  which  belonged 
to  the  transaction  as  part  thereof,  or  which  was  its  usual  and 
proper  concomitant.*  It  must  speak  only  to  that  which  it  was 
his  duty  or  business  to  do,  and  not  to  extraneous  and  foreign  cir- 
cumstances. ^    The  party  making  it  must  also  have  had  competent 

1  Phil.  &  Am.  on  Evid.  402.  As  to  the  evidence  of  authority  inferred  from  circum- 
stances, s('e  Storj'  on  Agency,  §§  87-106,  259,  260. 

2  Fairlie  v.  Hastings,  10  Ves.  123. 

8  Maesters  v.  Abraham,  1  Esp.  -375  (Day's  ed.),  and  note(l)  ;  Story  on  Agency, 
§§  135-143  ;  Johnson  v.  Ward,  6  Esp.  47. 

*  The  doctrine  on  the  subject  of  contemporaneous  entries  is  briefly  but  lucidly  ex- 
pounded by  Mr.  Justice  Parke,  in  Doe  d.  Patteshall  v.  Turford,  3  B  &  Ad.  890.  See 
also  Poole  v.  Dicas,  1  Bin£r.  N.  C.  654  ;  Pickering  v.  Bishop  of  Ely,  2  Y.  &  C.  249  ; 
Eegina  v.  Worth,  4  Q.  B.  132. 

'5  Chambers  v.  Bernasconi,  1  C.  &  J.  451  ;  R.  C".  1  Tyrwh.  335  ;  s.  c.  1  Cr.  M.  &  R. 
?>\~.  In  error.  This  limitation  has  not  been  applied  to  private  entries  against  the 
in'erest  of  the  party.  Thus,  where  the  payee  of  a  note  against  A.,  B.,  &  C. ,  indorsed 
n  partial  payment  as  received  from  B.,  adding  that  the  whole  sum  was  originally  ad-, 
vanced  to  A.  only  ;  in  an  action  by  B.  against  A.,  to  recover  the  money  thus  paid  for 
his  use,  the  indorsement  made  by  the  payee,  who  was  dead,  was  held  admissible  to 

{h)  By  being  part  of  the  res  gestce,  is  companied  by  acts,  as  by  an  actual  signa- 

meant  that  such  declarations  are  evidence  ture  of  the  name  of  the  principal,  are  not 

only  where  they  relate  to  the  identical  con-  competent  evidence  in  favor  of  third  per- 

tract  that  is  the  matter  in  controversy,  sons  to  prove  the  authority  of  the  agent. 

Dome  V.  Southwork  Man.  Co.,  11  Cush.  when  questioned  by  the  principal.   Mussey 

(Mass.)   205;    Fogg  n.    Child,    13   Barb.  u.  Beecher,  3  Cush.  (Mass.)  517  ;  Brigham 

(N.  Y.)  246.     And  see  ante,  §  113,  n.  v.  Peters,  1  Gray  (Mass.),  145  ;  Trustees, 

The  declarations  of  a  professed  agent,  &c.  v.  Bledsoe,  5  Ind.  133. 
however  publicly  made,  and  although  ac- 


CHAP,    v.]  OF    HEARSAY.  175 

knowledge  of  the  fact,  or  it  must  have  been  part  of  his  duty  to 
have  known  it;  there  must  have  been  no  particular  motive  to 
enter  that  transaction  falsely,  more  than  any  other;  and  the 
entry  must  have  been  made  at  or  about  the  time  of  the  transac 
tion  recorded.  In  such  cases,  the  entry  itself  is  admitted  as 
original  evidence,  being  part  of  the  res  gestce.  The  general  in- 
terest of  the  party,  in  making  the  entry,  to  show  that  he 
has  done  his  official  duty,  has  nothing  to  do  with  the  question  of 
its  admissibility;^  nor  is  it  material  whether  he  was  or  was  not 
competent  to  testify  personally  in  the  case.^  If  he  is  living,  and 
competent  to  testify,  it  is  deemed  necessary  to  produce  him.°(a) 
But,  if  he  is  called  as  a  witness  to  the  fact,  the  entry  of  it  is  not 
thereby  excluded.  It  is  still  an  independent  and  original  cir- 
cumstance, to  be  weighed  with  others,  whether  it  goes  to  cor- 
roborate or  to  impeach  the  testimony  of  the  witness  who  made  it. 
If  the  party  who  made  the  entry  is  dead,  or,  being  called,  has  no 
recollection  of  the  transaction,  but  testifies  to  his  uniform  prac- 
tice to  make  all  his  entries  truly,  and  at  the  time  of  each  trans- 
action, and  has  no  doubt  of  the  accuracy  of  the  one  in  question; 

prove  not  only  the  payment  of  the  money,  hut  the  other  fact  as  to  the  advancement  to 
A.  Davies  v.  Humphreys,  6  M.  &  W.  153  ;  Marks  v.  Lahee,  3  Bin^.  N.  C.  408.  And 
in  a  subsequent  case,  it  was  held,  that,  where  an  entry  is  admitted  as  being  against 
the  interest  of  the  party  making  it,  it  carries  with  it  the  whole  statement  ;  but  that,  if 
the  entry  is  made  merely  in  the  course  of  a  man's  duty,  then  it  does  not  go  beyond 
those  matters  which  it  was  his  duty  to  enter.  Percival  r.  Nanson,  7  Eng.  Law  &  En. 
538  ;  21  Law  J.  Exch.  N.  s.  1  ;  s.  c.  7  Exch.  1. 

3  Per  Tindal,  C.  J.,  in  Poole  v.  Dicas,  1  Bing.  N.  C.  654  ;  Dixon  v.  Cooper,  3  Wils. 
40  ;  Benjamin  v.  Porteus,  2  H.  Bl.  590  ;  Williams  v.  Geaves,  8  C.  &  P.  592  ;  Augusta 
V.  Windsor,  1  Appleton,  317.     And  see  Doe  v.  Wittcomb,  15  Jur.  778. 

4  Gleadow  v.  Atkin,  1  C.  &  M.  423,  424  ;  s.  c.  3  Tyrwh.  302,  303  ;  Short  v.  Lee,  2 
Jac.  &  Walk.  489. 

5  Nichols  V.  Webb,  8  Wheat.  326  ;  Welsh  v.  Barrett,  15  Mass.  380  ;  Wilbur  v. 
Selden,  6  Cowen,  162;  Farmers'  Bank  v.  Whitehill,  16  S.  &  R.  89,  90  ;  Stokes  v. 
Stokes,  6  Martin,  N.  .s.  351  ;  Herring  v.  Lew,  4  Martin,  N.  s.  383  ;  Brewster  v.  Doane, 
2  Hill,  N.  Y.  537  ;  Davis  v.  Fuller,  12  Vt.  "l78. 

(a)  Such  entries  are  now  generally  ad-  books  of  the  corporation,  or  in  the  hand- 

mitted  only  when  the  person  making  the  writing  of  tlie  former  treasurer,   or  were 

entry  is  deceased.     State  v.  Phair,  48  Vt.  received  by  the  present  treasurer  as  the 

366  ;  Whitcher  v.  McLaughlin,  115  Mass.  books    of     the    corporation.      Chenango 

167  ;  Augusta  v.   Windsor,   19  Me.  317  ;  Bridge   Corporation   v.    Lewis,    63    Barb. 

Mulhall  V.  Keenan,  18  Wall.  (IT.  S.)  342;  (N.  Y.)  111. 

Bartholemew  v.   Farwell,  41   Conn.    107  ;  In   Connecticut,  it  is  held,  that  if  the 

Stephen,  Digest  of  Evidence,  art.  27.     On  person  who  made  the  entry  has  been  in 

the  same  principle,   the  books  of  a  cor-  parts  unknown  for  a  long  time  and  out  of 

poration,  proved  to  have  been  kept  by  its  the   State,  and  cannot  be  procured  as  a 

treasurer  in  the  business  of  the  corporation,  witness,  it  is  as  if  he  were  dead.     New 

and  to  be  in  his  handwriting,  are  admissi-  Haven,    &c.    Company    v.    Goodwin,    42 

ble  to  prove  the  facts  entered  in  them,  on  Conn.  230.     But  if  the  entry  was  not  in 

proof  of  the  death  of  the  treasurer,  but  not  the  course  of  the  duty  of  the  person,  and 

without  such  proof.     It  is  not  enough  to  not  against  his  interest,  it  is  not  receivable, 

prove  that  the   books  appear  to  be  the  Webster  v.  Webster,  1  F.  &  F.  401. 


176  LAW   OF   EVIDENCE.  [PART   II. 

the  entry,  unimpeached,  is  considered  sufficient,  as  original  evi- 
dence, and  not  hearsay,  to  establish  the  fact  in  question.^ 

§  116.  Entries  by  third  persons.  One  of  the  earliest  reported 
cases,  illustrative  of  this  subject,  was  an  action  of  assumpsit,  for 
beer  sold  and  delivered,  the  plaintiff  being  a  brewer.  The  evi- 
dence given  to  charge  the  defendant  was,  that,  in  the  usual  course 
of  the  plaintiff's  business,  the  draymen  came  every  night  to  the 
clerk  of  the  brewhouse,  and  gave  him  an  account  of  the  beer  de- 
livered during  the  day,  which  he  entered  in  a  book  kept  for  that 
purpose,  to  which  the  draymen  set  their  hands ;  and  this  entry, 
with  proof  of  the  drayman's  handwriting  and  of  his  death,  was 
held  sufficient  to  maintain  the  action.  ^  (a)  In  another  case,^ 
before  Lord  Kenyon,  which  was  an  action  of  trover  for  a  watch, 
where  the  question  was,  whether  the  defendant  had  delivered  it 
to  a  third  person,  as  the  plaintiff  had  directed;  an  entry  of  the 
fact  by  the  defendant  himself  in  his  shop-book,  kept  for  that  pur- 
pose, with  proof  that  such  was  the  usual  mode,  was  held  admis- 
sible in  evidence.     One  of  the  shopmen  had  sworn  to  the  delivery, 

6  Bank  of  Monroe  v.  Culver,  2  Hill,  531  ;  New  Haven  County  Bank  v.  Mitchell,  15 
Conn.  206  ;  Bank  of  Tennessee  v.  Cowan,  7  Humph.  70.  See'  infra,  §§  436,  437,  n. 
(4).  But  upon  a  question  of  the  infancy  of  a  Jew,  where  the  time  of  his  circumcision, 
which  by  custom  is  on  the  eighth  day  after  his  birth,  was  proposed  to  be  shown  by  an 
entry  of  the  fact  made  by  a  deceased  rabbi,  whose  duty  it  was  to  perform  the  office  and 
to  make  the  entry  ;  the  entry  was  held  not  receivable.  Davis  v.  Lloyd,  1  Car.  &  Kir. 
275.     Perhaps  because  it  was  not  made  against  the  pecuniary  interest  of  the  rabbi. (i) 

1  Price  V.  Lord  Torrington,  1  Salk.  285  ;  s.  c.  Ld.  Raym.  873  ;  1  Smith's  Lead. 
Cas.  139.  But  the  courts  are  not  disposed  to  carry  the  doctrine  of  this  case  any  farther. 
Therefore,  where  the  coals  sold  at  a  mine  were  reported  daily  by  one  of  the  workmen 
to  the  foreman,  who,  not  being  able  to  write,  employed  another  person  to  enter  the 
sales  in  a  book  ;  it  was  held,  the  foreman  and  the  workman  who  reported  the  sale  both 
being  dead,  that  the  book  was  not  admissible  in  evidence  in  an  action  for  the  price  of 
the  coals.     Brain  v.  Preece,  11  M.  &  W.  773. 

"  Digby  V.  Stedman,  1  Esp.  328. 

{b)  But  it  is  difficult  to  reconcile  this  how  old  the  person  was  when  he  was  bap- 
case  with  sound  principle  or  with  previous  tized.  In  the  case  of  Shutesbury  v.  Had- 
decisions.  It  has  been  held  in  this  country  ley,  133  Mass.  242,  it  was  held  that  a 
that  the  entry  of  a  baptism  contempora-  record  of  a  town  clerk  of  the  facts  con- 
neously  made  by  a  Honvan  Catholic  priest,  cerning  a  marriage  required  by  law  to  be 
in  the  discharge  of  his  duty,  is  competent  recorded  by  him,  is  evidence  of  the  fact 
evidence,  after  his  death,  of  the  date  of  so  recorded,  e.  g.  of  the  residence  of  the 
the  baptism,  the  book  being  produced  from  parties,  independently  of  the  statute  by 
the  proper  custody,  although  he  was  not  a  which  such  record  is  made  prima  facie 
sworn  officer,  and  the  record  was  not  by  evidence  of  such  facts.  See  also  ante,  § 
law  required  to  be  kept.  Kennedy  v.  104,  n.  So  the  temperature  on  a  given 
Doyle,  10  Allen  (Mass.),  161.  This  case  day  was  proved  by  a  record  of  the  weather 
wa^  approved  in  the  later  case  of  Whitcher  kept  at  the  State  Insane  Asylum  for  many 
V.  McLaughlin,  115  Mass.  167,  where  it  is  years.  De  Armond  r.  Neasmith,  32  Mich, 
held   that   the   date  of   baptism   may  be  231. 

proved  by  such  an  entry.     The  date  of  (a)  Smith  v.   Blakey,  36   L.  J.   Q.  B. 

baptism  is  of  course  aloTie  not  competent  156  ;  Gould  v.  Conway,  59  Barb.  (N.  Y. ) 

to  prove  the  age  of  a  defendant,  but  it  may  355  ;  Lewis  v.  Ki'amer,  3  Md.  265. 
be  made  so  by  other  testimony,  showing 


CHAP,    v.]  OP    HEARSAY.  177 

and  his  entry  was  offered  to  corroborate  his  testimony;  but  it  was 
admitted  as  competent  original  evidence  in  the  cause.  So,  in 
another  case,  where  the  question  was  upon  the  precise  day  of  a 
person's  birth,  the  account-book  of  the  surgeon  who  attended  his 
mother  on  that  occasion,  and  in  which  his  professional  services 
and  fees  were  charged,  was  held  admissible,  in  proof  of  the  day 
of  the  birth.  3  So  where  the  question  was,  whether  a  notice  to 
quit  had  been  served  upon  the  tenant,  the  indorsement  of  service 
upon  a  copy  of  tlie  notice  by  the  attorney  who  served  it,  it  being 
shown  to  be  the  course  of  business  in  his  office  to  preserve  copies 
of  such  notices,  and  to  indorse  the  service  thereon,  was  held  ad- 
missible in  proof  of  the  fact  of  service.*  (i)  Upon  the  same  ground 
of  the  contemporaneous  character  of  an  entry  made  in  the  ordi- 
nary course  of  business,  the  books  of  the  messenger  of  a  bank, 
and  of  a  notary-public,  to  prove  a  demand  of  payment  from  the 
maker,  and  notice  to  the  indorser  of  a  promissory  note,  have  also 
been  held  admissible.^  The  letter-book  of  a  merchant,  party  in 
the  cause,  is  also  admitted  di^  prima  facie  evidence  of  the  contents 
of  a  letter  addressed  by  him  to  the  other  party,  after  notice  to 
such  party  to  produce  the  original ;  it  being  the  habit  of  mer- 
chants to  keep  such  a  book,^  And,  generally,  contemporaneous 
entries  made  by  third  persons  in  their  own  books,  in  the  ordinary 
course  of  business,  the  matter  being  within  the  peculiar  knowl- 
edge of  the  party  making  the  entry,  and  there  being  no  apparent 

8  Higham  v.  Ridgway,  10  East,  109.  See  also  2  Smith's  Lead.  Cas.  183-197,  n., 
and  the  comments  of  Buyley,  B.,  and  of  Vanghan,  B.,  on  this  case,  in  Gleadow  w. 
Atkin,  1  Or.  &  M.  410,  42:3,  424,  427,  and  of  Professor  Parke,  in  the  London  Legal 
Observer  for  June,  1832,  p.  229.  It  will  be  seen,  in  that  case,  that  the  fact  of  the  sur- 
geon's performance  of  the  service  charged  was  abundantly  proved  by  other  testimony 
in  the  cause  ;  and  that  nothing  remained  but  to  prove  the  precise  time  of  performance; 
a  fact  in  which  the  surgeon  had  no  sort  of  interest.  But,  if  it  were  not  so,  it  is  not 
perceived  what  difference  it  could  have  made,  the  principle  of  admissibility  being  the 
contemporaneous  character  of  the  entry,  as  part  of  the  res  gestce.  See  also  Herbert 
V.  Tuckal,  T.  Kaym.  84  ;  Augusta  v.  Windsor,  1  Appleton,  3i7.  (c) 

*  Doe  V.  Turford,  3  Barn.  &  Ad.  890  ;  Champnevs  v.  Peck,  1  Stark.  404  ;  Rex  v. 
Cope,  7  C.  &  P.  720. 

5  Ni(^holls  V.  Webb,  8  Wheat.  326;  Welsh  v.  Barrett,  15  Mass.  380;  Poole  v. 
Dicas,  1  Bing.  N".  C.  649  ;  Halliday  v.  Martinet,  20  Johns.  168  ;  Butler  v.  Wright, 
2  Wend.  369  ;  Hart  v.  Wilson,  Id.  513  ;  Nichols  v.  Goldsmith,  7  Wend.  160  ;  New 
Haven  Co.  Bank  v.  Mitchell,  15  Conn.  206  ;  Sheldon  v.  Benham,  4  Hill,  N.  Y.  129. 

**  Pritt  V.  Fairclough,  3  Campb.  305  ;  Hagedorn  v.  Reid,  Id.  377.  The  letter-book 
is  also  evidence  that  the  letters  copied  into  it  have  been  sent.  But  it  is  not  evidence 
of  any  other  letters  in  it,  than  those  which  the  adverse  party  has  been  required  to  pro- 
duce.    Sturge  V.  Buchanan,  2  P.  &  D.  573  ;  s,  c.  10  Ad.  &£!.  598. 

(h)  AVhere  such  an  indorsement  of  .ser-  ing  the  indorsement,  were  held  inadmissi- 

vice  had  l)een  admitted  to  prove  the  fact  ble.     Stapylton  v.  Clough,  22  Eng.    Law 

of  service  of  notice,  the  jierson  who  made  &  Eq.  275  ;  2  El.  &  Bl.  933. 
the   service   and   the   indorsement    being  [c]  Rawlins  v.  Rickards.  28  Beav.  370; 

dead,  parol  declarations  of  his,  contradict-  Reg.  v.  St.  Mary,  22  L.  J.  M.  C.  109. 

VOL.  I.  —  12 


178  LAW    OP    EVIDENCE.  [PART    11. 

and  particular  motive  to  pervert  the  fact,  are  received  as  original 
evidence ; "  though  the  person  who  made  the  entry  has  no  recol- 
lection of  the  fact  at  the  time  of  testifying;  provided  he  swears 
that  he  should  not  have  made  it,  if  it  were  not  truc.^(c?)  The 
same  princi})le  has  also  been  applied  to  receipts  and  other  acts 
contemporaneous  with  the  payment,  or  fact  attested.^ 

§  117.  Shop-books.  The  admission  of  the  party's  own  sliop- 
hooks,  in  proof  of  the  delivery  of  goods  therein  charged,  the 
entries  having  been  made  by  his  clerk,  stands  upon  the  same 
principle  which  Ave  are  now  considering.  The  books  must  have 
been  kept  for  the  purpose ;  and  the  entries  must  have  been  made 
contemporaneous  with  the  delivery  of  the  goods,  and  by  the  per- 
son whose  duty  it  was,  for  the  time  being,  to  make  them.  In 
such  cases  the  books  are  held  admissible,  as  evidence  of  the  de- 
livery of  the  goods  therein  charged,  where  the  nature  of  the 
subject  is  such  as  not  to  render  better  evidence  attainable.  ^  (a) 

'  Doe  V.  Tuiford,  3  B.  &  Ad.  890,  per  Parke,  J.  ;  Doe  v.  Eobson,  15  East,  32  ; 
Goss  V.  Wutlington,  3  Brod.  &  Biug.  132  ;  Middleton  i>.  Melton,  10  B.  &  C.  317  ; 
Marks  v.  Laliee,  3  Biiig.  N.  C.  408,  420,  per  Parke,  J.  ;  Poole  v.  Dieas,  1  Bing.  N.  C. 
649,  653,  654  ;  Dow  v.  8a\vyer,  16  Shepl.  117.  In  Doe  v.  Vowles,  1  M.  &  Rob.  261, 
the  tradesman's  bill,  which  was  i-ejected,  was  not  contemporaneous  with  the  fact  done. 
Haddow  v.  Parry,  3  Taunt.  303  ;  Whitnash  v.  George,  8  B.  &  C.  556  ;  Barker  v.  Kay, 
2  Paiss.  63,  76  ;  Patton  v.  Craig,  7  S.  &  R.  116,  126  ;  Farmers'  Bank  r.  Whitehlll,  16 
S.  &  R.  89  ;  Nourse  v.  M'Cay,  2  Rawle,  70  ;  Clarke  v.  Magruder,  2  H.  &  J.  77  ;  Rich- 
ardson V.  Carey,  2  Rand.  87 ;  Clark  v.  Wilmot,  1  Y,  &  Col.  N.  s.  53. 

8  Bunker  v.  Shed,  8  Met.  150. 

9  Sherman  v.  Crosby,  11  Johns.  70  ;  Holladay  v.  Littlepage,  2  Munf.  316  ;  Prather 
V.Johnson,  3  H.  &  J.  487;  Shearman  v.  Akins,  4  Pick.  283;  Carroll  v.  Tyler,  2 
H.  &  G.  54  ;  Cluggage  v.  Swan,  4  Binn.  150,  154.  But  the  letter  of  a  third  person, 
acknowledging  the  receipt  of  merchandise  of  the  plaintiff,  was  rejected  in  an  action 
against  the  paj-ty  who  had  recommended  him  as  trustworthy,  in  Longenecker  v.  Hyde, 
6  Binn.  1  ;  and  the  receipts  of  living  persons  were  rejected  in  Warner  v.  Price,  3  Wend. 
397  ;  Cutbush  v.  Gilbert,  4  S.  &  R.  551 ;  Spargo  v.  Brown,  9  B.  &  C.  935.  See  infra, 
§120. 

1  Pitman  v.  Maddox,  2  Salk.  690  ;  s.  c.  Ld.  Ra3'm.  732  ;  Lefcbure  v.  "Worden,  2 
Ves.   54,    55  ;   Glynn  v.    Bank  of  England,   Id.   40 ;   Sterret  v.   Bull,   1    Binn.  234. 

{d)  Adams  v.  Coullard,  102  Mass.  167  ;  peared  to  be  made  in  an  old  account-book 

even  though  the  entries  appeared  to  have  which  had  been  long  laid  aside,  and  only 

been   altered,  the   rule  excluding   instru-  used  lately  to  enter  the  one  item  which  it 

ments  containing  unexplained  alterations  was  offered  to  prove,  the  evidence  was  re- 

not  being  applicable  to  such  entries.  jected.     Kibbe   v.    Bancroft,    77    111.    18. 

(a)  But  a  party's  books  are  not  admis-  Nor  is  a  mere  cash-book,  or  book  of  occa- 

sible  to  prove  a  promise   to  pay  for   the  sional   entries,    admissible.      Kotwitz    v. 

goods  so  delivered,  though  it  is  a  part  of  Wright,  37  Tex.  82  ;  Godding  v.  Orcutt, 

the  same  entry.     Somers  v.  Wright,   114  44  Vt.  54. 

Mass.    171  ;    Keith   i'.    Kibbe,    lb    Cush.  Such  entries  are  not  written  contracts, 

(Mass.)   35.     Nor  to  vjhom,  or  on  whose  but  the  private  nuuiioranda  of  tlie  party, 

credit  the  sale  was  made.     Fiske  v.  Allen,  becoming,  with  the  aid  of  his  suppletory 

40  N.  Y.  Super.  Ct.  76  ;  Field  v.  Thomp-  oath,  under  an  excejition  to  the   general 

son,  119  Mass.  151  ;    Black  v.   Fizer,  10  rules,  competent  evidence  of  sale  and  de- 

Heisk.  (Tenn.)  48.     The  entry  must  also  livery.     Although   competent  and  strong 

be  made  in  the  ordinary  course  of  business  evidence   as   affecting  the   party   offering 

as  stated  above.     So  where  the  entry  ap-  them,  yet  they  are  not  conclusive,  but  may 


CHAP,    v.] 


OF    HEARSAY. 


179 


§  118.  Party's  own  entries.  In  the  United  States,  this  principle 
has  been  carried  farther,  and  extended  to  entries  made  hy  the 
party  himself  in  his  own  shop-books.  ^  (a)     Though  this  evidence 

See  also  Tait  on  Evid.  p.  176.  An  interval  of  one  day,  between  the  transaction  and 
the  entry  of  it  in  the  book,  has  been  deemed  a  valid  objection  to  the  adniissibilily  of 
the  book  in  evidence.  Walter  v.  BoUinan,  8  Watts,  544.  But  the  law  fixes  mo  pre- 
cise rule  as  to  the  moment  when  the  entry  ought  to  be  made.  It  is  enough  if  it  Ik; 
made  "at  or  near  the  time  of  the  transaction."  Curren  v.  Crawford,  4  S.  &  IL  3,  5. 
Therefore,  where  the  goods  were  delivered  by  a  servant  during  the  day,  and  the  entries 
were  made  by  the  master  at  night,  or  on  the  following  morning,  from  the  memoran- 
dums made  by  the  servant,  it  was  held  suthcient.  Ingraham  v.  Bockius,  9  S.  &  R. 
285.  But  Bueh  entries,  made  later  than  the  succeeding  day,  have  been  rejected.  Cook 
V.  Ashmead,  2  Miles,  268.  Where  daily  memoranda  were  kept  by  woikmen,  but  the 
entries  were  made  by  the  employer  sometimes  on  the  day,  sometimes  every  two  or 
three  days,  and  one  or  two  at  longer  intervals,  they  were  admitted.  Morris  v.  Briggs, 
3  Cush  342.  (b)  Whether  entries  transcribed  from  a  slate  or  card  into  the  book  are 
to  be  deemed  original  entries  is  not  universally  agreed.  In  Massachusetts,  they  are 
admitted.  Faxon  v.  HoUis,  13  Mass.  427.  (c)  In  Pennsylvania,  they  were  rejected 
in  Ogden  v.  Miller,  1  Browne,  147  ;  but  have  since  been  admitted,  wheie  they  were 
transcribed  forthwith  into  the  book,  Ingraham  v.  Bockius,  9  S.  &  R.  285  ;  Patton  v. 
Kyan,  4  Rawle,  408 ;  Joues  v.  Long,  3  Watts,  325  ;  and  not  later,  in  the  case  of  a 
mechanic's  charges  for  his  work,  than  the  evening  of  the  second  day,  Hartley  i;.  Brooks, 
6  Whart.  189.  But  where  several  intermediate  days  elapsed  before  they  were  thus 
transcribed,  the  entities  have  been  rejected.  Forsythe  v.  Norcross,  5  Watts,  432.  But 
see  Koch  v.  Howell,  6  Watts  &  Serg.  350. 

1  In  the  following  States,   the  admission  of  the  party's  own  books  and  his  own 
entries  has  been  either  expressly  permitted,  or  recognized  and  regulated  by  statute  ; 


be  explained,  and,  as  it  would  seem,  may 
be  shown  to  have  been  erroneous.  Thus, 
in  an  action  for  goods  sold  and  delivered, 
if  the  plaintiff,  to  prove  his  case,  produces 
his  books  of  account,  in  which  the  goods 
are  charged  to  a  third  person,  he  mny  then 
be  permitted  to  show  by  parol  that  the 
goods  were  not  sold  to  such  thinl  person, 
but  were  sold  to  the  defendant,  and  were 
charged  to  such  person  at  the  defendant's 
request.  James  v.  Spaulding,  4  Gray,  451. 
It  seems  to  have  been  questioned  whether 
the  docket  or  book  of  accounts  kept  by  an 
attorney  is  competent  evidence,  in  itself, 
of  his  right  to  recover  for  his  services. 
Hale's  Ex'rs  v.  Ard's  Ex'is,  48  Pa.  St. 
22;  Briggs  v.  Georgia,  15  Vt.  61.  In  Maine, 
such  entries  made  by  attorneys  (Codman 
V.  Caldwell,  31  Me.  560)  and  physicians 
(Augusta  V.  Windsor,  19  Me.  317),  for 
professional  services,  are  admitted.  So, 
likewise,  the  latter,  in  New  Jersey.  Bay 
V.  Cook,  22  N.  J.  Law,  343  ;  Toomer  v. 
Gadsden,  4  Strob.  (S.  C.)  193.  And  the 
party's  cash-book  of  entries  of  money  paid 
and  received  is  not  admissible  as  evidence 
of  a  particular  payment.  Maine  i'.  Harper, 
4  Allen,  115. 

(h)  See  also  Barker  v.  Haskell,  9  Cush. 
(Mass.)  218;  Hall  v.  Glidden,  39  Me. 
445.  Cf.  Kent  v.  Garvin,  1  Gray  (Mass.),' 
148. 

(c)  Smith  V.  Sauford,  12  Pick.    (Mjiss.) 


139  ;  Barker  v.  Haskell,  9  Cush.  (Mass. ) 
218.  They  are  admitted  in  New  York 
when  it  appears  that  they  were  transcribed 
in  the  regular  course  of  business  from  day 
to  day  into  the  books.  Stroud  v.  Tilton, 
4  Abb.  (N.  Y.)  App.  324  ;  and  in  Jefferis 
V,  Urmy,  3  Houst.  (Del.)  653,  where  the 
entries  on  the  slate  were  only  transcribed 
once  a  week.  The  ledger  is  not  the  origi- 
nal account,  as  against  a  memorandum 
book  from  which  the  entries  are  co]iied. 
Bentley  v.  Ward,  116  Mass.  333  ;  Vilmar 
V.  Schell,  35  N.  Y.  Super.  Ct.  67  ;  Law- 
horn  V.  Carter,  11  Bush  (Ky. ),  7. 

(rt)  In  addition  to  the  States  mentioned 
in  note  1  as  having  expressly  permitted  or 
recognized  and  regulated  by  statute,  the 
admission  of  the  party's  shop-books,  and 
the  entries  therein,  to  prove  the  sale  or 
delivery  of  goods,  the  following  States 
have  enacted  similar  statutes.  Colorado 
Gen.  Laws,  Par.  2953,  sec.  3,  provides 
that  when  in  a  civil  action  a  claim  or  de- 
fence is  founded  on  a  book  account,  any 
party  may  testify,  as  to  the  account-book 
and  items,  that  the  book  is  a  book  of 
original  entries,  and  that  the  entries 
therein  were  made  by  himself,  and  are 
true  and  just,  or  were  made  by  a  de- 
ceased or  disqualified  person,  made  in  the 
usual  course  of  trade  ;  and  thereupon  the 
book  and  entries  are  evidence  in  the  case. 
In  Illinois  (Rev.  St.  ch.  51,  sec.  3),  a  sim- 


180 


LAW    OF    EVIDENCE. 


[part  II. 


has  sometimes  been  said  to  be  admitted  contrary  to  the  rules  of 
the  common  law,  yet  in  general  its  admission  will  be  found  in 

namely   Vermont,  1  Tolmaii's  Dig.  185  ;   Connecticut,  Rev.  Code,  1849,  tit.  1,  §  216  ; 
Delaware,  St.  25  Geo.  II.,  Rev.  Code,  1829,  p.  89  ;   Maryland,  as  to  sums  under  ten 


ilar  statute  is   enacted.      In    Michigan  a 
similar   statute  has  been  enacted.      How- 
elTs  Statutes,   sec.  7526,    Laws  of   1885, 
IS'o.  lOU.     The  statute  in  Minnesota  makes 
books     of    original    entries    evidence     of 
moneys  paid,  goods  delivered,  etc.     Stat, 
of  Minn.,  p.  803,  sec.  78.     In  Maine,  the 
statute    provides    that   when    books    and 
nieuioranda  of  a  deceased  person  are  put 
in  evidence  in  an    action    by  or    against 
the    representatives    of   the    deceased    by 
either   side,  the    other  i>arty  may  testify 
in  relation  thereto.     Me.  Rev.  Sts.,  chap. 
82,   sec.  96,   cl.  4.     In  Ohio,  the  statutes 
provide     that    in    a     claim     or     defence 
founded    upon  a  book  account  the  party 
may  te-stify  that  the  book  is  his  account- 
book,  and  that  it  is  a  book  of  original  en- 
tries, that  the  entries  therein  were  made 
by  himself,  or  by  a  person  since  deceased, 
or  a  disinterested  person  non-resident  in 
the  county,  whereupon  the  book  shall  be 
evidence.     Ohio  Rev.  Sts.,  sec.  5242,  ])ar. 
6.     In  every  instance,  it  is  necessary  that 
the  book  should    be   a    book   of  original 
entries  kept  in  the  regular  course  of  busi- 
ness, and  that  the  entries  were  made  at  or 
near  the  time  of  the  transactions  which 
they  record.     Watrous  v.  Cunningham,  71 
Cal.  32  ;   Ailing  v.  Wenzell,   27  111.  App. 
516;  llumsey  v.  N.  Y.  &N.  J.  Telejih.  Co., 
49  N.  .1.   L.  323  ;  Woolsey  v.    Bohn,  41 
Minn.  237  ;  Roche  v.   Waie,  71  Cal.  375. 
In  Connecticut,  such  entries  are  limited 
to  those  of  a  deceased  person.      Setchel 
V.  Keigwin,  57  Conn.   478.     In  Vermont, 
such  evidence  is  admissible  in  actions  for 
or  against  the  estates  of  deceased  persons 
by  .statute.     Greene  v.  Mill,  60  Vt.  442. 
In  Maryland,  it  is  held  that  if  the  books 
are  books   of   original  entries,  made  con- 
temporaneously with  the  transactions  re- 
corded, and  made  by  the  witness  himself, 
and  he  knows  that  they  were  accurately 
and  truly  recorded  at  tlie  time,  the  books 
are  evidence  for  the  jury,  not  conclusive, 
but  as  a   circumstance    ten<ling  to  prove 
the  case  supported  by  the  witness.    Blum- 
hardt  c.  Rohr,  70  Md.  339.     In  Pennsyl- 
vania, the  rule  is   much    restricted,  such 
entries   being    only   admissible    in    cases 
where  the  articles  delivered  are  such  as 
are  usually  sold  by  the  person  offering  the 
books  in  the  course  of  his  business.  Thus, 
in  the  recent  case  of  Stuckslager  v.  Neel, 
123  Pa.   St.    60,   evidence  of  an  entry  in 
books  of  a  sale  of  land  was  offered  to  sup- 


port a  charge  of  fraud  in  the  sale.     The 
only  argument   ]n-esented    in    support   of 
the   offer   was  that  the  books  of  original 
entry  are    admissible    to    prove    sales    of 
merchandise.      But  the   Court  held  that 
the  entry  was  not  competent  for  that  rea- 
son,   liecause   it   was  not  a  sale   of   mer- 
chandise at  all,  but  a  special  transaction, 
a  sale  of  fifteen  river  flats,  the  seller  not 
being  engaged  in  that  kind  of  business. 
The   rule  is  stated  in   the  case  of    Slioe- 
maker    v.  Kellog,    11    Pa.    St.    310,   that 
books  of  original  entry  are  not  evidence  of 
the   casual    sale   of  an  article  not  in  the 
course  of  a  party's  business,  and  of  which 
it  is  usual  to  take  other  proof  or  evidence 
of  sale.     In  that  case  the  transaction  was 
the  sale  of  a  mare  regularly  entered  upon 
a  tradesman's  books,  but  excluded  by  the 
trial  court  below,  and  the  exclusion  sus- 
tained on  appeal.     Bell,  J.,  said  :   "  It  is 
almost  too  trite  to    repeat   that  books  of 
original    entry    are    evidence    onlj'  from 
necessity,  and  ought  never  to  be  received 
where  the  transaction  from  its  nature  ad- 
mits   of   more    satisfactory   proof.     They 
are  receivable  to  show  goods  sold  and  put 
down  in  the  course  of  the  ordinary  bisi- 
ness    or    pursuit    of    the    party    oUermg 
them.    .   .  .    But   it  would  be  dangerous 
to  open  the  door  of  admission  wider  than 
this."     In  New  York,  in  the  recent  case  of 
Kew  York  City  i'.  Second  Ave.  R.  R.  Co., 
102  N.    Y.    579,  the  court  con.siders  the 
question  of  admission  of  a  time-book  to 
prove   the    number    of    days'  labor    per- 
formed  in    making    certain    repairs.      In 
this  case  the  time-l)Ook  was    not    admis- 
sible as  a  memorandum    of   facts  known 
to   the    person    making    the    entiies   and 
verified  by  him,   for  the  bookkeeper   did 
not  see  the  men  at  work  except  casually, 
and  he  had  no  personal  knowledge  of  the 
amount  of  labor  performed.     His  knowl- 
edge,  from  personal  observation,  was  in- 
complete,   and    the    time-book  was  made 
up,  mainly,  from  the  reports  of  the  gang- 
foremen.      The    time-book  was  held   not 
admissible  upon   the  testimony  either  of 
the    gang-foremen  or  of  the  bookkeeper 
separately  considered,  for  the  gang-foremen 
knew  the  facts  they  reported  to  the  book- 
keeper to  be  true,  but  they  did  not  see  the 
entries  made,  and   could  not  verify  their 
correctness,  while  the  bookkeeper  did  not 
make  the  entries  upon  his  own  knowledge 
of  the  facts,  but  from  the  reports  of  the 


CHAP,    v.] 


HEARSAY. 


181 


perfect  harmony  with  those  rules,  the  entry  bein^  admitted  only 
where  it  was  evidently  contemporaneous  with  the  fact,  and  part 

poumls  in  a  year,  1  Dorsey's  Laws  of  Maryland,  73,  203  ;   Virginia,  Stat.  1819,  1  Rev. 
Code,  c.  128,  §§  7-9;  North  Carolina,  Stat.  1756,  c.  57,  §  2,  1  Kev.  Code,  183G,  c.  15 ; 


gang-foremen,  and  standing  upon  his  tes- 
timony alone  the  entries  were  mere  hear- 
say. Tlie  court  says:  "The  question 
arises,  must  a  material,  ultimate  fact  be 
proved  by  the  evidence  of  a  witness  who 
knew  the  fact  and  can  recall  it,  or  wlio, 
having  no  personal  recollection  of  the  fact 
at  the  time  of  his  examination  as  a  wit- 
ness, testifies  that  he  made,  or  saw  made 
an  entry  of  tlie  fact  at  tlie  time,  or  re- 
cently tliereafter,  which,  on  being  pro- 
duced, he  can  verify  as  the  entry  ho  made 
or  saw,  and  that  he  knew  the  entry  to  be 
true  when  made,  or  may  such  ultimate 
fact  be  ])roved  by  showing  by  a  witness 
that  he  knew  the  facts  in  relation  to  the 
matter  wliich  is  the  subject  of  investiga- 
tion, anil  communicated  them  to  another 
at  the  time,  but  had  forgotten  them,  and 
supi)lementing  this  testimony  by  tliat  of 
the  person  receiving  the  conununication  to 
the  effect  that  lie  entered  at  the  time,  the 
facts  communicated,  and  by  the  produc- 
tion of  the  book  or  memorandum  in  which 
the  entries  were  made.  The  admissibility 
of  memoranda  of  the  first  class  is  well  set- 
tled. They  are  admitted  in  connection 
with,  and  as  auxiliary  to  the  oral  evidence 
of  the  witness,  and  this  whether  the  wit- 
ness, on  seeing  the  entries,  recalls  the 
facts,  or  can  only  verify  the  entries  as  a 
true  record  made  or  seen  by  him  at,  or 
soon  after,  the  transaction  to  which  it  re- 
lates. (Halsey  i>.  Sinsebaugh,  15  N.  Y. 
485;  Guy  f. 'Mead,  22  Id.  462.)  The 
other  branch  of  the  inquiry  has  not  been 
very  distinctly  adjudicated  in  this  State, 
although  the  admissibility  of  entries  made 
under  circumstances  like  those  in  this 
case  was  apparently  approved  in  Payne  v. 
Hodge  (71  N.  Y.  598).  We  are  of  opin- 
ion that  the  rule  as  to  the  admissibility 
of  memoranda  may  properly  be  extended 
so  as  to  embrace  the  case  before  us.  The 
case  is  of  an  account  kept  in  the  ordinary 
course  of  business,  of  laborers  employed  in 
the  prosecution  of  work,  based  ujinn  daily 
reports  of  foremen  who  had  charge  of  tlie 
men,  and  who,  in  accordance  with  their 
duty,  reported  the  time  to  another  sub- 
ordinate of  the  same  common  master,  but 
of  a  higher  grade,  who,  in  time,  also  in 
accordance  with  his  duty,  entered  the 
time  as  reported.  We  think  entries  so 
made,  with  the  evidence  of  the  foremen 
that  they  made  true  reports,  and  of  the 
person  who  made  the  entries  that  he  cor- 


rectly entered  them,  are  admissible.  It 
is  substantially  by  this  method  of  accounts 
that  business  transactions  in  nuinerons 
cases  are  autlienticated,  and  business  could 
not  be  carried  on  and  accounts  kept  in 
many  cases,  without  great  inconvenience, 
unless  this  method  of  keeping  and  proving 
accounts  is  sanctioned.  In  a  business 
where  many  laborers  are  eni|)loyed,  all 
accounts  must,  in  most  cases,  of  necessity, 
be  kept  by  a  person  not  personally  cogni- 
zant of  the  facts,  and  from  reports  niatle 
by  others.  The  person  in  charge  of  the 
laborers  knows  the  tacts,  but  he  may  not 
have  the  skill,  or  for  other  reasons,  it  may 
be  inconvenient  that  he  should  keep  the 
account.  It  may  be  assumed  that  a  sys- 
tem of  accounts  based  ujion  substantially 
the  same  methoils  as  the  accounts  in  this 
case,  is  in  accordance  with  the  usages  of 
business.  In  admitting  an  account  veri- 
fied, as  was  the  account  iiere,  there  is  little 
danger  of  mistake,  and  the  admission  of 
such  an  account  as  legal  evidence  is  often 
necessary  to  prevent  a  failure  of  justice. 
We  are  of  opinion,  however,  that  it  is  a 
proper  qualification  of  the  rule  admitting 
such  evidence,  that  the  account  must  have 
been  made  in  the  ordinary  course  of  busi- 
ness, and  that  it  should  not  be  extended 
so  as  to  admit  a  mere  private  memorandum, 
not  made  in  pursuance  of  any  duty  owing 
by  the  person  making  it,  or  when  made 
upon  information  derived  from  another 
wlio  made  the  communication  casually  and 
voluntarily,  and  not  under  the  sanction  of 
duty  or  other  obligation.  The  case  before 
us  is  within  the  qualification  suggested." 
See,  also,  Nat.  Ulster  Co.  Bank  v.  Madden, 
114  N.  Y.  283,  to  the  effect  that  such  en- 
tries are  only  admissible  wlien  the  witness 
has  no  recollection  of  the  facts  stated  in 
the  entries. 

Such  entries  are  admissible  only  as  evi- 
dence to  prove  a  sale  and  delivery,  not  to 
whose  credit  tlie  sale  was  made.  ( Richards 
V.  Burroughs,  62  Mich.  121  ;  Keith  v. 
Kibbe,  10  Cush.  35  ;  Field  v.  Thompson, 
119  Mass.  151  ;  Kaiser  v.  Alexander,  144 
Mass.  71)  ;  and  in  New  Hampshire,  they 
are  said  not  to  be  evidence  of  a  sale,  but 
only  of  a  delivery.  Pinkham  v.  Benton, 
62  "N.  H.  690.  In  Missouri,  this  rule  is 
not  recognized  at  all,  and  the  account-books 
of  the  party  are  held  not  admissible  in  evi- 
dence for  anv  purpose.  Hissrick  v.  Mc- 
Pherson,  20  Mo.  310  ;  Anchor  Milling  Co. 


182 


LAW   OP   EVIDENCE. 


[part  II. 


of  the  res  ge8t%     Being  the  act  of  the  party  himself,  it  is  re- 

Soutli  Carolina,  St.  1721,  Se}>t.  20 :  see  Statutes  at  Large,  vol.  iii.  p.  799,  Cooper's  ed. 
1  Bay,  43  ;  Teuuessee,  Statutes  of  Tennessee,  by  Carruthers  and  Nicholson,  p.  131. 


V.  Walsh,  37  Mo.  App.  570  ;  Nipjier  v. 
Jones,  '27  Mo.  App.  538  ;  Robertson  v. 
Reed,  38  Mo.  App.  3(3  ;  Heusgea  v.  Mul- 
lally,  23  Mo.  App.  614.  Li  Massachusetts, 
tlie  question  of  what  is  an  original  book  of 
entries  was  discussed  in  several  cases,  and 
particularly  in  a  recent  case  in  which  the 
facts  were  that  the  plaintiif  delivered  loads 
of  sand  to  the  defendant,  for  the  price  of 
■which  he  sued.  To  jirove  the  delivery,  lie 
testified  that  whenever  he  delivered  a  load 
he  put  a  straight  mark  in  a  small  account- 
book,  that  he  employed  other  men  to  de- 
liver loads,  who  kejjt  a  tally  on  their  carts 
through  the  day,  and  at  night  reported  to 
him  the  number,  and  he  put  a  coire- 
sponding  number  of  marks  on  his  book. 
This  evidence  w'as  corroborated  by  all  the 
men  whom  he  employed.  The  court  held 
that  the  book  was  adnii.ssible.  Miller  v. 
Shay,  145  Mass.  162.  The  book  in  such 
cases  need  not  be  a  complete  statement  of 
the  charge.  As  in  the  above  case,  it  may 
merely  contain  marks.  Miller  v.  Shay, 
svpra ;  or  marks  under  a  man"s  name, 
Mathes  v.  Robinson,  8  Met.  269  ;  and  even 
marks  on  a  shingle,  or  a  notched  stick, 
have  been  admitted.  Kendall  v.  Field,  14 
Me.  30.  So  the  entry  may  not  have  any 
memorandum  of  the  weight,  quantity,  or 
measure  of  the  goods  delivered.  Pratt  v. 
White,  132  Mass.  477  ;  but  these  gaps 
must  be  supplied  by  other  evidence  so  as 
to  make  the  whole  intelligible.  Miller  v. 
Shay,  supra.  As  to  the  entries  being 
original,  it  will  be  noticed  that  some  of  the 
entries  in  Miller  v.  Shay,  supra,  were 
transferred  from  the  cart  to  the  book,  and 
were  held  admissible.  This  is  in  accord 
with  the  cases  which  hold  that  if  the  trans- 
fer of  the  charge  from  a  temporary  minute 
to  a  permanent  record,  is  made  on  the  day 
of  the  transaction,  in  the  regular  cours^e  of 
business,  it  is  an  original  charge.  Thus, 
when  the  transfer  was  from  a  slate  to  a 
book  on  the  day  of  the  transaction,  it  was 
held  that  the  book  was  the  original  entry. 
Faxon  v.  Ho] lis,  13  Mass.  428  ;  Barker  v. 
Haskell, 9  Cush.  218  ;  so  from  chalk-marks 
on  a  cart.  Smith  v.  Sanford,  12  Pick.  139  ; 
Miller  r.  Shay,  supra.  If  several  jiersons 
make  the  entries,  or  are  concerned  in  the 
delivery  of  the  goods,  it  is  proper  that  all 
should  testify  as  to  the  facts.  Harwood 
V.  ]\Iulry,  8  Gray,  250  ;  Miller  v.  Shay, 
supra.  And  the  person  who  makes  the 
entry  need  not  necessarily  be  the  person 
who  delivered  the  goods.  Littlefield  v. 
Rice,  10  Met.   287;    Harwood  v.  Mulry, 


supra.  But  in  such  a  case  the  person  who 
delivers  the  goods  must  testify  in  sn|)port 
of  the  charges,  either  to  prove  the  actual 
delivery,  or  his  custom  to  report  the  de- 
livery to  the  person  making  the  charges. 
Kent  V.  Garvin,  1  Giay,  148.  See  Kew 
York  City  v.  Second  Ave.  R.  R.  Co.,  102 
N.  Y.  579. 

The  rule  also  extends  to  cases  where  the 
party  who  made  the  entries  is  dead,  and 
the  suit  is  lirought  by  or  against  his  ex- 
ecutor or  administrator.  In  such  a  case, 
the  books  of  account  of  the  deceased  are 
admissible  in  evidence  to  prove  items  of 
work  done  or  goods  delivered,  when  they 
are  sujiported  by  the  oath  of  the  executor 
or  administrator,  that  they  came  to  his 
hands  as  the  genuine  and  only  books  of 
account  of  the  deceased,  that  to  the  best  of 
his  knowledge  and  belief  the  entries  are 
original  and  contemjioraneous  with  the 
fact,  and  the  debt  is  unpaid,  and  that  the 
entries  are  in  the  hamlwriting  of  the  de- 
ceased. Croswell,  Exec,  sec.  749  ;  Pratt 
V.  White,  132  Mass.  478  ;  McLellan  v. 
Crofton,  6  Greenl.  307  ;  Prince  v.  Snnth, 
4  Mass.  455  ;  Odell  v.  Culbert,  9  W.  &  S. 
66.  But  the  books  must  apfiear,  on  all 
the  evidence,  to  have  been  the  regular  ac- 
count-books, kept  in  the  usual  course  of 
business,  and  the  entries  made  at  or  near 
the  time  of  the  transactions  to  be  proved. 
Davis  V.  Sanford,  9  Allen,  216.  The  same 
rule  also  applies  as  to  the  account-books  of 
the  other  l>arty  to  the  suit.  They  may  be 
given  in  evidence  supported  by  his  oath  ; 
and,  as  will  be  seen  later,  infra,  sec.  329 
ei  scq.,  they  are  generally  held  to  be  com- 
petent even  where  the  statutes  provide  that 
if  one  party  to  a  transaction  is  dead,  and 
the  suit  is  by  or  against  his  executor  or 
administrator,  the  surviving  party  is  dis- 
qualified from  testifying  in  the  cause  as  to 
that  transaction  with  the  deceased.  Dex- 
ter V.  Booth,  2  Allen,  561. 

It  .should  also  be  noted  that  when  the 
fact  of  an  entry  being  made  in  account- 
books  is  a  substantive  fact  in  issue,  the 
books  of  account  are  admissilile  to  show 
such  enti'y  without  any  further  proof  than 
that  they  are  the  books  of  account  of  the 
party  in  question.  Thus  where  A.  con- 
tracted with  B.  to  give  him  a  credit  on  his 
account-books  for  a  certain  sum,  in  return 
for  which  B.  was  to  cancel  certain  obliga- 
tions of  A.,  it  was  held  that  the  books  of 
account  of  A.  were  admissible  to  show  that 
the  entry  had  been  made.  People  v.  Gor- 
don, 70  Cal.  468. 


CHAP,    v.]  OF    HEARSAY.  183 

ceivcd  with  greater  caution;  but  still  it  may  be  seen  and  weighed 
by  the  jury.^ 

In  Louisiana  anil  in  Maryland  (except  as  above),  entries  made  by  the  party  hirnsi^lt 
are  not  admitted.  Civil  Code  of  Louisiana,  arts.  2244,  2245  ;  Johnston  v.  JJreedlove, 
2  Martin,  n.  s.  508  ;  Herring  t;.  Lev}',  4  Martin,  N.  s.  383  ;  Cavelier  v.  Collins,  3 
Martin,  188  ;  Martiiistein  v.  Creditors,  8  Kob.  6  ;  Owings  v.  Henderson,  5  Gill  & 
Johns.  134,  142.  In  all  the  other  States,  they  are  admitted  at  common  law,  under 
various  degrees  of  restriction.  S(;e  Coggswell  v.  Dolliver,  2  Mass.  217  ;  Poultney  v. 
Ross,  1  Dall.  239;  Lynch  y.  McHugo,  1  Bay,  33;  Foster  v.  Sinkler,  Id.  40;  Slade 
V.  Teasdale,  2  Bay,  173  ;  Lamb  v.  Hart,  Id.  3t)2  ;  Thomas  v.  Dyott,  1  Nott  k,  McC. 
186  ;   Ijiirnham  v.  Adams,  5  Vt.  313  ;   Story  on  Contl.  of  Lavk's,  52G,  527. 

'^  The  rules  of  the  several  States  in  regarti  to  the  a<lniission  of  this  evidence  are  not 
perfectly  uniform  ;  but,  in  what  is  about  to  be  stated,  it  is  believed  that  they  concur. 
Before  the  books  of  the  party  can  be  admitted  in  evidence,  they  are  to  be  submitted  to 
the  inspection  of  the  court,  ami  if  they  do  not  appear  to  be  a  register  of  the  daily  busi- 
ness of  the  iiarty,  and  to  have  been  honestly  and  fairly  kept,  they  are  excluded.  If 
they  appear  manifestly  erased  and  altered,  in  a  material  part,  they  will  not  l)e  admitted 
until  the  .alteration  is  explained.  Churchman  v.  Smith,  6  Whart.  146.  The  form  of 
keeping  them,  whether  it  be  that  of  a  journal  or  ledger,  does  not  affect  their  admissi- 
bility, however  it  may  go  to  tlieir  creilit  to  the  jury.  Coggswidl  v.  Dolliver,  2  Mass. 
217  ;  Prince  v.  Smith,  4  Mass.  455,  457  ;  Faxon  v.  HoUis,  13  Mass.  427  ;  Kodmaii  v. 
Hoops,  1  Dall.  So  ;  Lynch  v.  McHugo,  1  Bay,  33  ;  Foster  v.  Sinkler,  Id.  40  ;  Slade 
V.  Teasdale,  2  Bay,  173  ;  Thomas  v.  Dyott,  l"  Nott  &  McC.  186  ;  Wilson  v.  Wilson, 
1  Halst.  95  ;  Swing  v.  Sparks,  2  Halst.  59  ;  Jones  v.  De  Kay,  2  Pennington,  695  ;  Cole 
V.  Anderson,  3  Halst.  68  ;  Mathes  v.  Robinson,  8  Met.  269.  (b)  If  the  books  appear 
free  from  fraudulent  practices,  and  proper  to  be  laid  before  the  jury,  the  party  himself 
is  then  required  to  make  oath,  in  open  court,  that  they  are  the  books  in  which  the 
accounts  of  his  ordinary  business  transactions  are  usually  kept,  Frye  v.  Barker,  2  Pick. 
65  ;  Taylor  v.  Tucker,  1  Kelly,  233,  (c)  and  that  the  goods  therein  charged  were  actu- 
ally sold  and  delivered  to,  and  the  services  actually  performed  for,  the  detVnilant. 
Dvvinel  ;j.  Pottle,  3  Me.  167.  (d)  An  affidavit  to  an  account,  or  bill  of  particulars,  is 
not  admissible.  Wagoner  v.  Richmond,  Wright,  173  ;  unless  made  so  by  statute. 
Whether,  if  the  party  is  abroad,  or  is  unable  to  attend,  the  court  will  take  iiis  oath 
under  a  commission,  is  not  perfectly  clear.  The  opinion  of  Parker,  C.  J.,  in  2  Pick. 
67,  was  against  it ;  and  so  is  Nicholson  v.  Withers,  2  McCord,  428  ;  but  in  S[ience  v. 
Sanders,  1  Bay,  119,  even  his  affidavit  was  deemed  sufficient,  upon  a  writ  of  inquiiy, 
the  defendant  having  sutTered  judgment  by  default.  See  also  Douglass  v.  Hart,  4 
McCord,  257  ;  Furinari  v.  Peay,  2  Bail.  394.  He  must  also  swear  that  the  articles 
therein  charged  were  actually  delivered,  and  the  labor  and  services  actually  performed  ; 
that  the  entries  were  made  at  or  about  the  time  of  tiie  transactions,  and  are  the  origi- 
nal entries  thereof ;  and  that  the  sums  charged  and  claimed  have  not  been  paid. 
3  Dane's  Abr.  c.  81,  art.  4,  §§1,2;  Coggswell  v.  Dolliver,  2  Mass.  217  ;  Ives  v.  Niles, 
5  Watts,  324.  If  the  party  is  dead,  his  books,  though  rendered  of  much  less  weight 
as  evidence,  may  still  be  otlered  by  the  executor  or  administrator,  he  making  oath  that 
they  came  to  his  hands  as  the  genuine  and  only  books  of  account  of  the  deceased  ;  that, 
to  the  best  of  his  knowledge  and  belief,  the  entries  are  original  and  contemporaneous 
with  the  fact,  and  the  debt  unpaid  ;  with  ])roof  of  the  party's  handwi-iting.  Bentley  v. 
Hollenback,  Wright,  169;  McLellan  v.  Crofton,  6  Greenl.  307;  Prince  v.  Smith,  4 
Mass.  455  ;  Odell  v.  Culbert,  9  W.  &  S.  66.  If  the  party  has  since  become  insane,  the 
book  may  still  be  admitted  in  evidence,  on  proof  of  the  fact,  and  that  tlie  entries  are 
in  his  handwriting,  with  the  suppletory  oath  of  his  guardian.  And  whether  the  degree 
of  insanity,  in  the  particular  case,  is  such  as  to  justify  the  admission  of  the  book,  is  to 

(h)  Nor  can  the  entries  be  invalidated  (c)  Karr  i'.  Stivers,  34  Iowa,  123. 

by  proof  that,  several  years  ]>revious  to  the  (d)  And  where  goods  are  delivered  by 

date  of  the  entries,  the  party  making  the  one  partner,  and  the  entries  are  made  by 

entries   had  kept  two    books    of   original  another,  each  partner  may  testify  to  his 

entries,   in  which    he    charged    the   same  part  of  the   transaction,  and  the  entries 

articles  at  different   prices.      Gardiner  v.  may    then    be    admitted.      Harwood    V. 

Way,    8  Gray   (Mass.),   189.     The  judge  Mulry,   8  Gray,  250. 
decides  on  the  admissibility  of  the  books. 
Pratt  V.  White,  132  Mass.  477. 


184  LAW   OF   EVIDENCE.  [PART   II. 

§  110,   Same  subject.      But,  if  the  American  rule  of  admitting 
the  party's  own  entries  in  evidence  for  him,  under  tlie  liniita- 

be  (letenuined  by  the  judge  in  liis  discretion.  Holbrook  v.  Gay,  6  Ciisli.  215.  The 
book  itself  must  be  the  registry  of  business  actually  done,  and  not  of  orders,  executory 
contracts,  and  things  to  be  done  subse([uent  to  the  entry.  Fairchild  v.  Uennison,  4 
Watts,  258  ;  Wilson  v.  Wilson,  1  Halst,  95  ;  Bradley  v.  Goodyear,  1  Day,  104,  106  ; 
Terrill  v.  Heecher,  9  Conn.  344,  348,  349  ;  and  the  entry  nmst  have  been  made  for  the 
purpose  of  charging  tlie  debtor  with  the  debt  ;  a  mere  memorandum,  for  any  other 
purpose,  not  being  sufficient.  Thus,  an  invoice-book,  and  the  memorandums  in  the 
margin  of  a  blank  check-book,  showing  the  date  and  tenor  of  the  checks  drawn  and 
cut  from  tlie  book,  have  been  rejected.  Cooper  v.  Morrell,  4  Yates,  341  ;  Wilson  v. 
Goodin,  Wright,  219.  But  the  time-book  of  a  day  laborer,  though  kept  in  a  tabular 
form,  is  admissible  ;  the  entries  being  made  for  the  apparent  purpose  of  charging  the 
person  for  whom  the  work  was  done.  ]\lathes  v.  Robinson,  8  Met.  269.  (e)  If  the  book 
contains  marks,  or  there  be  other  evidence  showing  that  the  items  have  been  trans- 
ferred to  a  journal  or  ledger,  these  books  also  must  be  i>roduced.  Prince  v.  Swett,  2 
Mass.  569,  The  entries,  also,  must  be  made  contemporaneously  with  the  fact  enj;ered, 
as  has  been  already  stated  in  regard  to  entries  made  by  a  clerk.  Sujmi,  §  117,  and 
n.  (1)  Peltries  thus  made  are  not,  however,  received  in  all  cases  as  satisfactory  proof 
of  the  charges  ;  but  only  as  proof  of  things  which,  from  their  nature,  are  not  generally 
susceptible  of  better  evidence.  Watts  v.  Howard,  7  Met.  478.  They  are  satisfactorj' 
jiroof  of  goods  sold  and  delivered  from  a  shop,  and  of  labor  and  services  personally  per- 
formed, Case  V.  Potter,  8  Johns.  211  ;  Vosburgh  v.  Tha}'er,  12  Johns,  461  ;  Wilmer 
V.  Israel,  1  Browne,  257  ;  Ducoign  v.  Schreppel,  1  Yeates,  347  ;  Spence  v.  Sanders,  1 
Bay,  119  ;  Charlton  v.  Lawry,  Martin  (N.  C),  26  ;  Mitchell  v.  Clark,  Id.  25  ;  Easly 
V.  Eakin,  Cooke,  388  ;  and,  in  some  States,  of  small  sums  of  money,  Coggswell  v.  Dol- 
liver,  2  Ma.ss.  217  ■;  Prince  v.  Smith,  4  Mass.  455  ;  3  Dane's  Abr.  c.  81,  art.  4,  §§  1, 
2  ;  Craven  v.  Shaird,  2  Halst.  345.  (/)  The  amount,  in  Massachusetts  and  Maine,  is 
restricted  to  forty  shillings.  Dunn  v.  Whitney,  1  Fairf.  9  ;  Burns  v.  Fay,  14  Pick.  8  ; 
Union  Bank  v.  Knapp,  3  Pick.  109,  (g)  While  in  North  Carolina,  it  is  extended  to  any 
article  or  articles,  the  amount  whereof  shall  not  exceed  the  sum  of  sixty  dollars.  Stat, 
1837,  c.  15,  §§  1,  6.  (h)  But  they  have  been  refused  admission  to  prove  the  fact  of 
advertising  in  a  newspaper,  Richards  v.  Howard,  2  Nott  &  McC,  474  ;  Thomas  r. 
Dyott,  1  Nott  &  McC.  186  ;  of  a  charge  of  dockage  of  a  vessel,  Wilmer  v.  Israel,  1 
Browne,  257  ;  comniissions  on  the  sale  of  a  vessel,  Winsor  v.  Dillaway,  4  Met.  221  ;  (i) 
labor  of  servants.  Wright  v.  Sharp,  1  Browne,  344 ;  goods  delivered  to  a  third  jierson, 
Kerr  v.  Love,  1  Wash.  172  ;  Tenbroke  v.  Johnson,  Coxe,  288  ;  Townley  v.  Wooly,  Id. 
377  ;  or  to  the  party,  if  under  a  previous  contract  for  their  delivery  at  different  periods, 
Lonergan  v.  Whitehead,  10  Watts,  249  ;  general  damages,  or  value,  Swing  v.  Sparks, 

(c)  In  an  action  by  a  laborer  against  his  as  a  voucher  for  a  greater  sum.     Turner  v. 

employer,  the  time-book  of  the  employer,  Twing,  9  Gush.  (Mass.)  512. 
kept  in  a  tabular  form,  in  which  the  days  (h)  In  New  Jersey  they  are  madmissi- 

the  plaintiff  woiked  are  set  down,  is  not  ble  to  prove  money  paid  or  money  lent, 

admissible  in  evidence  with  the  defendant's  Inslee  v.  Prall,  3  Zabr.  457. 
suppletory  oath,  to  show  that  the  plaintiff  (i)  So  to  prove  the  following  facts  :  on 

did  not  work  on  certain  davs  ;  it  being  a  whose  credit  the  sale  was  made,  delivery 

book  of  credits  and  not  of  chai-ges,  and  it  being  admitted  (Keith  v.  Kibbe,  10  Cush. 

not   being   competent    to   show   that   the  36)  ;  the  consideration  of  a  promissory  note 

plaintiti' did  not  work  on  certain  days  by  (Rindge  v.   Breck,  10  Cush.  43;  see  also 

the  defendant's  omission  to  give  credit  for  Earle    v.    Sawyer,    6    Cush.    142);    three 

work  on  those  days,     Morse  v.  Potter,  4  months'  service  in  one  item  (Henshaw  v. 

Gray  (Mass.),  292.  Davis,  5  Cush.    145);   an  item   "7  gold 

(/)  Meais  furnished  to  an  employer  and  watches,    S308  "    (Bustin    v.    Rogers,    11 

his  servants,  from  day  to  day,  are  a  proper  Cush,  346) ;  money  lost  by  an  agent's  neg- 

subject  of  book-charge.     Tremain  v.   Ed-  ligence   (Chase    v.   Spencer,    1    Williams, 

wards,  7  Cush.   414.     And  see  also  ante,  412)  ;  articles  temporarily  borrowed  (Scott 

§  117,  n,  V.    Brigham,    Id.  561)  ;    building  a  fence 

(g)  Kelton  v.  Hill,   58  Me.  114.     Nor  (Towle  v.  Blake,  37  Me.  208)  ;  any  matter 

is  the  rule  changed  because  an  auditor,  at  collateral  to  the  issue  of  debt  and  credit 

the  hearing  before  him,  examined  the  book  between  the  parties.     Batchelder  y.  San- 
born, 22  N.  H.  325. 


CHAP,    v.]  OF   HEARSAY.  185 

tions  mentioned  below,  were  nut  in  accordance  with  the  princi- 
ples of  the  common  law,  yet  it  is  in  conformity  with  those  of 
other  systems  of  jurisprudence,  (a)  In  the  administration  of  the 
Roman  law,  the  production  of  a  merchant's  or  tradesman's  book 
of  accounts,  regularly  and  fairly  kept  in  the  usual  manner,  has 
been  deemed  presumptive  evidence  [semiplena  probatio  ^ )  of  the 
justice  of  his  claim;  and,  in  such  cases,  the  suppletory  oath  of 
the  party  (juramentum  suppletivum)  was  admitted  to  make  up 
jUit-j^,  the  plena  probatio  necessary  to  a  decree  in  his  favor.  ^     By  the 

2  Halst.  59  ;  Tenill  v.  Beecher,  9  Conn.  348,  349  ;  settlement  of  accounts,  Prest  v. 
Mereereau,  4  Halst.  26S  ;  money  [laid  and  not  applied  to  the  ]>uipose  directed,  Bradley 
V.  Good3'ear,  1  Day,  104  ;  a  s[)ecial  agreement,  Piitchard  v.  M'Owen,  1  Nott  &  McC. 
131,  n. ;  Dunn  v.  Whitney,  1  Faiif.  9  ;  Gieen  v.  Pratt,  11  Conn.  205  ;  or  a  delivery 
of  goods  under  such  agreement,  Nickle  v.  Baldwin,  4  Watts  &  Serg.  290;  an  article 
omitted  by  mistake  in  a  prior  settlement,  Punderson  v.  Shaw,  Kirby,  150  ;  the  use  and 
occupation  of  real  estate,  and  the  like,  Beaidr  v.  Mills,  5  Conn.  493.  See  also  Newton 
V.  Higgins,  2  Vt.  366  ;  Dunn  v.  Whitney,  1  Fairf.  9.  But  after  the  order  to  deliver 
goods  to  a  third  person  is  proved  by  competent  evidence  aliunde,  the  delivery  itself 
may  be  proved  by  the  books  and  su[)pletoiy  oath  of  the  plaintiff,  in  any  case  where 
such  delivery  to  the  defendant  in  person  might  be  so  proved,  Jlitchell  v.  Belknap,  10 
Shepl.  475.  The  charges,  moreover,  must  be  specific  and  particular;  a  general  charge 
for  professional  services,  or  for  work  and  labor  by  a  mechanic,  without  any  specifica- 
tion but  that  of  time,  caimot  be  supported  by  this  kind  of  evidence.     Lynch  v.  Petrie, 

1  Nott  &  McC.  130  ;  Hughes  v.  Hampton,  2  Const.  745.  And  regularly  the  prices 
ought  to  be  specified  ;  in  which  ease  the  entry  is  prima  facie  evidence  of  the  value. 
Hagamau  v.  Case,  1  South,  370  ;  Ducoigii  v.  Schrej)pel,  1  Yeates,  347.  But  whatever 
be  the  nature  of  the  subject,  the  transaction,  to  be  susceptible  of  this  kind  of  proof, 
must  have  been  directly  between  the  original  debtor  and  the  creditor  ;  the  book  not 
being  admissible  to  establish  a  collateral  fact.  Mifflin  v.  Bingham,  1  Dall.  276,  ]ier 
McKean,  C.  J.  ;  Kerr  v.  Love,  1  Wash.  172;  Deas  v.  Darby,  1  Nott  &  ilcC.  436  ; 
Poultney  v.  Ross,  1  Dall.  238.  Though  books,  such  as  have  been  described,  are 
admitted  to  be  given  in  evidence,  with  the  suppletory  oath  of  the  party,  yet  his  testi- 
mony is  still  to  be  weighed  by  the  jury,  like  that  of  anj'  other  witness  in  the  cause, 
and  his  reputation  for  truth  is  equally  open  to  be  questioned.  Kitchen  i'.  Tyson,  3 
Murph.  314  ;  Elder  v.  Warfield,  7  Har.  &  Johns.  391.  In  some  States,  the  books  thus 
admitted  are  only  those  of  shopkeepers,  mechanics,  and  tradesmen  ;  those  of  other  per- 
sons, such  as  planters,  scriveners,  schoolmasters,  &c.,  being  rejected.     Geter  v.  Martin, 

2  Bay,  173  ;  Pelzer  v.  Cranston,  2  xMcCord,  328;  Boyd  v.  Ladson,  4  McCord,  76.  The 
subject  of  the  admission  of  the  party's  own  entries,  with  his  suppletory  oath,  in  the 
several  American  States,  is  very  elaborately  and  fully  treated  in  Mr.  Wallace's  note  to 
American  edition  of  Smith's  Leading  Cases,  vol.  i.  p.  142. 

1  This  degree  of  proof  is  thus  defined  by  Mascardus :  "  Non  est  ignorandum,  proba- 
tioneni  semiplenam  eam  esse,  per  rjuam  rei  f^estie  fides  aliqua  fit  judici  :  non  tamen  tanta 
ut  jure  debeat  in  pronuncianda  sententia  eam  sequi."     De  Prob.  vol.  i.  Qiuest.  11  n.  1,  4. 

2  "Juramentum  (suppletivum)  deferturubicunque  actor  habet  pro  se  —  aliquas  con- 
jecturas,  per  quas  jude.x;  inducatur  ad  suspicionem  vel  ad  opinandum  pro  parte  actoris. " 
Alascardus,  de  Prob.  vol.  3,  Concl.  1230,  n.  17.  The  civilians,  however  they  may  dif- 
fer as  to  the  degree  of  credit  to  be  given  to  books  of  account,  concur  in  opinion  that 
they  are  entitled  to  consideration  at  the  discretion  of  the  judge.  They  furnisli,  at  least, 
the  conjecturcc  mentioned  by  Mascardus  ;  and  their  adnussion  in  evidence,  with  the 
suppletory  oath  of  the  party,  is  thus  defended  by  Paul  Voet,  De  Statutis,  §  5,  c.  2,  n.  9. 
"  An  ut  credatur  libris  rationem,  seu  registris  uti  loquuntur,  mercatorum  et  artificum, 

•    licet  probationibus  testiura  non  juventur  ?     K^spondeo,  quamvis  exemplo  pernitiosura 

('/)  As  long  ago  as  1609,  Stat.  7,  James  L  have  constantly  resorted  to  them  in  mat- 

c.  12,  citeil  in  exf.enso  by  Taylor  (Ev.  641,  ters  of  account.     Lodge  v.  Prichard,  3  De 

A),   clearl}'  recognized  tradesmen's  shop-  G.  M.  &  G.  908. 
books  as  evidence,  and  courts  of  equity 


186  LAW   OP   EVIDENCE.  [PART   II. 

law  of  France,  too,  the  books  of  merchants  and  tradesmen,  regu- 
larly kept  and  written  from  day  to  day,  without  any  blank,  when 
the  tradesman  has  the  reputation  of  probity,  constitute  a  semi- 
proof,  and  with  his  suppletory  oath  are  received  as  full  proof  to 
establish  his  demand.  =^  The  same  doctrine  is  familiar  in  the 
law  of  Scotland,  by  which  the  books  of  merchants  and  others, 
kept  with  a  certain  reasonable  degree  of  regularity,  satisfactory 
to  the  court,  may  be  received  in  evidence,  the  party  being  allowed 
to  give  his  own  oath  "in  supplement"  of  such  imperfect  proof. 
It  seems,  however,  that  a  course  of  dealing,  or  other  "  pregnant 
circumstances,"  must  in  general  be  first  shown  by  evidence 
aliunde,  before  the  proof  can  be  regarded  as  amounting  to  the 
degree  of  semiplena  probatlo,  to  be  rendered  complete  by  the  oath 
of  the  party."* 

§  120.  Entries  by  third  persons.  Returning  now  to  the  admis- 
sion of  entries  made  by  clerks  and  third  persons,  it  may  be  re- 
marked that  in  most  of,  if  not  all,  the  reported  cases,  the  clerk 
or  person  who  made  the  entries  was  dead ;  and  the  entries  were 
received  upon  proof  of  his  handwriting.  But  it  is  conceived  that 
the  fact  of  his  death  is  not  material  to  the  admissibility  of  this 
kind  of  evidence.  There  are  two  classes  of  admissible  entries, 
between  which  there  is  a  clear  distinction,  in  regard  to  the  prin- 
ciple on  which  they  are  received  in  evidence.  The  one  class 
consists  of  entries  made  against  the  interest  of  the  party  making 
them;  and  these  derive  their  admissibility  from  this  circum- 
stance alone.  It  is,  therefore,  not  material  when  they  were 
made.  The  testimony  of  the  party  who  made  them  would  be  the 
best  evidence  of  the  fact ;  but,  if  he  is  dead,  the  entry  of  the  fact 
made  by  him  in  the  ordinary  course  of  his  business,  and  against 
his  interest,  is  received  as  secondary  evidence  in  a  controversy 

esse  videatnr,  quemque  sibi  privata  testatione,  sive  adnotatione  facere  debitorem.  Qui 
tamen  hsc  est  niercatorum  cura  et  opera,  ut  debiti  et  credit!  rationes  diligenter  confi- 
ciant.  Etiam  in  eoruni  foro  et  causis,  ex  aqiio  et  bono  est  judicandiim.  Insuper  non 
admisso  aliquo  (litiura  accelerandarum  reniedio,  conunerciorum  ordo  et  usus  evertitur. 
Nequi  enim  omnes  praesenti  pecunia  merces  sibi  comparant,  neque  cujusque  rei  vendi- 
tioni testes  adheberi,  qui  pretia  mercium  uoverint,  aut  expedit  aut  congruuin  est.  Noa 
iniquum  videbitur  illud  statutum,  quo  domesticis  talibus  instrumentis  additur  fides, 
modo  aliquibus  adminiculis  juventur."  See  also  Hertius,  De  Collisione  Legiim,  §  4, 
n.  68  ;  Strykius,  torn.  7,  De  Semiplena  Probat.  Dis.  1,  c.  4,  §  5  ;  Menochius,  De  Pre- 
sump.  lib.  2,  Presump.  57,  n.  20,  and  lib.  3,  Presurai..  63,  n.  12. 

8  1  Pothier  on  Obi.,  Part  iv.  c.  1,  art.  2,  §  4.  By  the  Code  Napoleon,  merchants 
books  are  required  to  be  kept  in  a  particular  manner  therein  prescribed,  and  none 
others  are  admitted  in  evidence.     Code  de  Commerce,  Liv.  1,  tit.  2,  art.  8-12. 

*  Tait  on  Evidence,  pp.  273-277.  This  degree  of  proof  is  there  defined  as  "  not 
merely  a  suspicion,  but  such  evidence  as  produces  a  reasonable  belief,  though  not  com- 
plete evidence."  See  also  Glassford  on  Evid.  p.  650  ;  Bell's  Digest  of  Laws  of  Scot- 
land, pp.  378,  898. 


CHAP,    v.]  OF    HEARSAY.  187 

between  third  persons.^  The  other  class  of  entries  consists  of 
those  which  constitute  parts  of  a  chain  or  combination  of  trans- 
actions between  the  parties,  the  proof  of  one  raising  a  presump- 
tion that  another  has  taken  jjlace.  Here,  the  value  of  the  entry, 
as  evidence,  lies  in  this,  that  it  was  contemporaneous  with  the 
jyrincipal  fact  done,  forming  a  link  in  the  chain  of  events,  and 
being  part  of  the  res  gestce.  It  is  not  merely  the  declaration  of 
the  party,  but  it  is  a  verbal  contemporaneous  act,  belonging,  not 
necessarily  indeed,  but  ordinarily  and  naturally,  to  the  principal 
thing.  It  is  on  this  ground,  that  this  latter  class  of  entries  is 
admitted;  and  therefore  it  can  make  no  difference,  as  to  their 
admissibility,  whether  the  party  who  made  them  be  living  or 
dead,  nor  whether  he  was,  or  was  not,  interested  in  making 
them,  his  interest  going  only  to  aft'ect  the  credibility  or  weight 
of  the  evidence  when,reccived.2  (a) 

§  121.  Indorsements  of  payment.  The  evidence  of  indebtment, 
afforded  by  the  indorsement  of  the  payment  of  interest,  or  a  par- 
tial payment  of  the  principal,  on  the  back  of  a  bond  or  other 
security,  seems  to  fall  within  the  principle  we  are  now  consider- 
ing, more  naturally  than  any  other ;  though  it  is  generally  classed 
with  entries  made  against  the  interest  of  the  party.  The  main 
fact  to  be  proved  in  the  cases,  where  this  evidence  has  been  ad- 
mitted, was  the  continued  existence  of  the  debt,  notwithstanding 
the  lapse  of  time  since  its  creation  was  such  as  either  to  raise 
the  presumption  of  payment,  or  to  bring  the  case  within  the 
operation  of  the  statute  of  limitations.  This  fact  was  sought  to 
be  proved  by  the  acknowledgment  of  the  debt  by  the  debtor  him- 
self;  and  this  acknowledgment  was  proved  by  his  having  actually 
paid  part  of  the  money  due.  It  is  the  usual,  ordinary,  and  Avell- 
known  course  of  business,  that  partial  payments  are  forthwith 
indorsed  on  the  back  of  the  security,  the  indorsement  thus  be- 
coming part  of  the  res  gestce.     Wherever,  therefore,  an  indorse- 

1  Warren  v.  Greenville,  3  Str.  1129  ;  Middleton  v.  Melton,  10  B.  &  C.  317  ;  Thomp- 
son V.  Stevens,  2  Nott  &  McC.  493  ;  Chase  v.  Smith,  5  Vt.  556  ;  Spiers  v.  Morris,  9 
Biug.  687  ;  Alston  v.  Taylor,  1  Hayw.  381,  395. 

2  This  distinction  was  taken  and  clearly  expounded  by  Mr.  Justice  Parke  in  Doe  d. 
Patteshall  v.  Turford,  3  B.  &  Ad.  890  ;  cited  and  approved  in  Poole  v.  Dices,  1  Bing. 
N.  C.  654.  See  also,  supra,  §§  115,  116  ;  Cluggage  v.  Swan,  4  Binn.  154  ;  Sherman 
V.  Crosby,  11  Johns.  70  ;  Holladay  v.  Littlepage,  2  Munf.  316  ;  Prather  v.  Johnson, 
3  H.  &  J.  487  ;  Shearman  v.  Akins,  4  Pick.  283  ;  Carroll  v.  Tyler,  2  H.  &  G.  54  ; 
James  v.  Wharton,  3  McLean,  492.  In  several  cases,  liowever,  letters  and  receipts  of 
third  persons,  living  and  within  tlie  reach  of  process,  have  been  rejected.  Longenecker 
V.  Hyde,  6  I>inn.  1  ;  Spargo  v.  Brown,  9  B.  &  C.  935;  Warner  v.  Price,  3  Wend.  397  ; 
Cutbush  1-.  Gilbert,  4  S.  &  R.  551. 

(a)  Reynolds  v.  Manning,  15  Md.  510,  holds  that  the  declarant  must  be  dead. 
See  ante,  §  115,  note,  (a) 


188  LAW   OP   EVIDENCE.  [PART   II. 

ment  is  shown  to  have  been  made  at  the  time  it  bears  date  (which 
will  be  inferred  from  its  face,  in  the  absence  of  opposing  circum- 
stances),^ the  presumption  naturally  arising  is,  that  the  money 
mentioned  in  it  was  paid  at  that  time.  If  the  date  is  at  a  period 
after  the  demand  became  stale,  or  affected  by  the  statute  of  limi- 
tations, the  interest  of  the  creditor  to  fabricate  it  would  be  so 
strong  as  to  countervail  the  presumption  of  payment,  and  require 
the  aid  of  some  other  proof;  and  the  case  would  be  the  same  if 
the  indorsement  bore  a  date  within  that  period,  the  instrument 
itself  being  otherwise  subject  to  the  bar  arising  from  lapse  of 
time.2  (a)  Hence  the  inquiry  which  is  usually  made  in  such  cases, 
namely,  whether  the  indorsement,  when  made,  was  against  the 
interest  of  the  party  making  it,  that  is,  of  the  creditor ;  which,  in 
other  language,  is  only  inquiring  whether  it  was  made  while  his 
remedy  was  not  yet  impaired  by  lapse  of  time.  The  time  when 
the  indorsement  was  made  is  a  fact  to  be  settled  by  the  jury ;  and 
to  this  end  the  writing  must  be  laid  before  them.  If  there  is  no 
evidence  to  the  contrary,  the  presumption  is  that  the  indorse- 

1  Smith  V.  Battens,  1  Moo.  k  R.  341.  See  also  Nicliolls  v.  Webb,  8  Wheat.  326  ; 
12  S.  &  K.  49,  87  ;  16  S.  &  K.  89,  91. 

2  Tamer  v.  Crisp,  2  Stra.  827  ;  Rose  v.  Bryant,  2  Campb.  321  ;  Glynn  v.  Bank  of 
England,  2  Ves.  38,  43.  See  also  Whitney  v.  Bigelovv,  4  Pick.  110  ;  Roseboom  v.  Bil- 
lington,  17  Johns.  182  ;  Gibson  v.  Peebles,  2  McCord,  418. 

(a)  Clap  V.  Ingersoll,  2  Fairf.  (Me.)  tions,  unless  the  bar  was  removed  by 
83  ;  Coffin  'v.  Bucknam,  3  Id.  471  ;  Beatty  partial  payments.  The  plaintitf  olfered 
V.  Clement,  12  La.  An.  82;  Addams  v.  as  evidence  of  the  payments  the  entries 
Seitzinger,  1  Watts  &  S.  (Pa.)  243.  of  them  as  credits  on  the  partnership 
The  same  point  has  been  raised  in  salts  on  books  of  the  plaintiff's  firm  in  the  hand- 
book accounts  which  are  barred  by  the  writing  of  the  deceased  partner.  It  was 
statute  of  limitations,  unless  the  plain-  held  that  such  entries  of  credits  were  not 
tiffs  book  of  account  be  considered  evi-  admissible  to  prove  a  partial  payment  by 
deuce  of  remittances  on  account  of  the  defendant  for  the  puipose  of  removing  the 
debt.  In  a  recent  case  of  this  kind  the  statute  bar.  Such  entries  were  als<i  of- 
book  was  proved  as  a  book  of  original  en-  fered  and  excluded  in  Hancock  i;.  Cook, 
tries,    and   was   ottered   to   prove  the  ac-  18  Pick.  30. 

count  and  the  credits,  but  it  was  rejected  In   Maine,  it  was  formerly  held,  prior 

at  the  trial  as  evidence  for  the  latter  pur-  to  any  statute  upon  the  subject,  that  an 

pose,  and  this  decision  was  upheld  in  the  indorsement  made  by  the  holder  of  a  note 

Supreme  Court,  the  court  holding  that  a  of  a  payment  thereon,  such  indorsement 

party's   books   of  account  are    legitimate  being  made  before  the  debt  was  barred,  was 

prima  facie  evidence  to  show  the  sale  and  some   evidence   of  such  payment   at   the 

delivery,  in  the  usual  course  of  business,  date  of  the  indorsement.     Coffin  v.  Buck- 

of  personal  property  and  its  price,  and  of  nam,  12  Me.   471.     The  doctrine  of  that 

work  and  labor  performed  and  the  sums  case  was  soon  after  overthrown  by  statute 

due  for  such  services,  but  not  of  a  pay-  R.  S.  1841,   ch.  146,  sec.  23,  now  R.  S. 

ment  received  by  the  party  offering  them.  1883,  ch.  81,  sec.  100,  which  declared  that 

Oberg  i;.  Breen,  50  N.  J.  L.  145.  The  same  such  indorsement  sliall  not   be  sufBcient 

decision  was  given  in  Maine.      Libby  v.  evidence.     The  rule  of  that  case  was  never 

Brown,  78  Me.   493.      In   this   case  "the  extended    beyond    indorsements    on    the 

action  was  by  a  surviving  partner  on  an  written    evidence    of    debt.        Libby    v. 

account    stated.      The    action    was    ad-  Brown,  78  Me.  493. 
mittedly  barred  by  the  statute  of  limita- 


CHAP,    v.]  OP    HEARSAY.  189 

mcnt  was  made  at  the  time  it  purports  to  bear  date ;  and  the  I'ur- 
den  of  proviii<^  the  date  to  be  false  lies  on  the  other  party. ^  If 
the  indorsement  does  not  purport  to  be  made  contemporaneously 
with  the  receipt  of  the  money,  it  is  inadmissible  as  part  of  the 
res  c/estce, 

§  122.  Same  subject.  This  doctrine  has  been  very  much  con- 
sidered in  the  discussions  which  have  repeatedly  been  had  upon 
the  case  of  Searle  v.  Barrington.'^  In  that  case  the  bond  was 
given  in  1697,  and  was  not  sued  until  after  the  death  of  the  ob- 
ligee, upon  whose  estate  administration  was  granted  in  1723. 
The  obligor  died  in  1710;  the  obligee  probably  survived  him,  but 
it  did  not  appear  how  long.  To  repel  the  presumption  of  pay- 
ment, arising  from  the  lapse  of  time,  the  plaintiff  offered  in  evi- 
dence two  indorsements,  made  upon  the  bond  by  the  obligee 
himself,  bearing  date  in  1699  and  in  1707,  and  purporting  that 
the  interest  due  at  those  respective  dates  had  been  then  paid  by 
the  obligor.  And  it  appears  that  other  evidence  was  also  offered, 
showing  the  time  when  the  indorsements  were  actually  made.^ 
The  indorsements,  thus  proved  to  have  been  made  at  the  times 
when  they  purported  to  have  been  made,  were,  upon  solemn  argu- 
ment, held  admissible  evidence,  both  by  the  judges  in  the  Ex- 
chequer Chamber,  and  by  the  House  of  Lords.  The  grounds  of 
these  decisions  are  not  stated  in  any  of  the  reports :  but  it  may 
be  presumed  that  the  reasoning  on  the  side  of  the  prevailing 

8  Per  Taunton,  J.,  in  Smith  v.  Battens,  1  Moo.  &  R.  343.     See  also  Hunt  v.  Massey, 

5  B.  &  Ad.  902  ;  Baker  v.  Milburn,  2  M.  &  W.  853  ;  Sinclair  v.  Baggaley,  4  M.  &  W. 
312  ;  Anderson  v.  Weston,  6  Bing.   N.  C.  2^6. 

^  There  were  two  successive  actions  on  the  same  bond  between  these  parties.  The 
first  is  reported  in  8  Stra.  826,  2  Mod.  278,  and  2  Ld.  Eaym.  1370  ;  and  was  tried 
before  Pratt,  C.  J.,  who  refused  to  admit  the  indorsement,  and  nonsuited  the  plaintiff  ; 
but,  on  a  motion  to  set  the  nonsuit  aside,  the  three  other  judges  were  of  opinion  that 
the  evidence  ought  to  have  been  left  to  the  jury,  the  indorsement  in  such  cases  being 
according  to  tiie  usual  course  of  business,  and  perhaps  in  this  case  made  with  the 
privity  of  the  obligor  ;  but  on  another  ground  the  motion  was  denied.  Afterwards 
another  action  was  brought,  which  was  tried  before  Lord  Raymond,  C.  J.,  who  admitted 
the  evidence  of  the  indorsement  ;  but  to  which  the  defendant  filed  a  bill  of  exeejitioiis. 
This  judgment  was  affirmed  on  error  in  the  Exchequer  Chamber,  and  again  in  the 
House  of  Lords.  See  2  Stra.  827  ;  3  Bro.  P.  C.  593.  The  first  case  is  mostly  fully 
reported  in  8  Mod.  278. 

2  This  fact  was  stated  by  Bayley,  B.,  as  the  result  of  his  own  research.     See  1  Cr. 

6  M.  42  L  So  it  was  understood  to  be,  and  so  stated,  by  Lord  Hardwicke,  in  2  Ves. 
43.  It  may  have  constituted  the  "other  circumstantial  evidence,"  mentioned  in  Mr. 
Brown's  report,  3  Bro.  P.  C.  594  ;  which  he  literally  transcribed  from  tlie  case,  as 
drawn  up  by  Messrs.  Lutwyche  and  Fazakerley,  of  counsel  for  the  original  plaintiff,  for 
argument  in  the  House  of  Lords.  See  a  folio  volume  of  original  printed  briefs,  marked 
"Cases  in  Parliament,  1728  to  1731,"  p.  529,  in  the  Law  Library  of  Harvard  Univer- 
sity, in  which  this  case  is  stated  more  at  large  than  in  any  book  of  Reports.  By  Stat. 
9  Geo.  IV.  c.  14,  it  is  enacted,  that  no  indorsement  of  partial  payment,  made  by  or 
on  behalf  of  the  creditor,  shall  be  deemed  sufficient  proof  to  take  the  case  out  of  the 
statute  of  limitations.  The  same  enactment  is  found  in  the  laws  of  some  of  the  United 
States. 


190  LAW   OP   EVIDENCE.  [PART   II. 

party  was  approved,  namely,  that  the  indorsement  being  made 
at  the  time  it  purported  to  bear  date,  and  being  according  to  the 
usual  and  ordinary  course  of  business  in  such  cases,  and  which  it 
was  not  for  the  interest  of  the  obligee  at  that  time  to  make,  was 
entitled  to  be  considered  by  the  jury;  and  that  from  it,  in  the 
absence  of  opposing  proof,  the  fact  of  actual  payment  of  the  in- 
'terest  might  be  inferred.  This  doctrine  has  been  recognized  and 
confirmed  by  subsequent  decisions.^  (a) 

§  123.  Summary.  Thus,  we  have  seen  that  there  are  four 
classes  of  declarations,  which,  though  usually  treated  under  the 
head  of  hearsay,  are  in  truth  original  evidence ;  the  first  class 
consisting  of  cases  where  thcfact  that  the  declaration  was  made, 
and  not  its  truth  or  falsity,  is  the  point  in  question ;  the  second, 
including  expressions  of  bodily  or  mental  feelings,  where  the 
existence  or  nature  of  such  feelings  is  the  subject  of  inquiry ;  the 
third,  consisting  of  cases  of  pedigree,  and  including  the  declara- 
tion of  those  nearly  related  to  the  party  whose  pedigree  is  in 
question;  and  the  fourth,  embracing  all  other  cases  where  the 
declaration  offered  in  evidence  may  be  regarded  as  part  of  the  res 
gestce.  All  these  classes  are  involved  in  the  principle  of  the  last ; 
and  have  been  separately  treated,  merely  for  the  sake  of  greater 
distinctness. 

§  124.  Principle  of  the  rule  of  exclusion  of  hearsay  evidence. 
Subject  to  these  qualifications  arfd  seeming  exceptions,  the  gen- 
eral rule  of  law  rejects  all  hearsay  reports  of  transactions,  whether 
verbal  or  written,  given  by  persons  not  produced  as  witnesses.  ^ 
The  principle  of  this  rule  is,  that  such  evidence  requires  credit 
to  be  given  to  a  statement  made  by  a  person  who  is  not  subjected 
to  the  ordinary  tests  enjoined  by  the  law  for  ascertaining  the 
correctness  and  completeness  of  his  testimony;  namely,  that  oral 
testimony  should  be  delivered  in  the  presence  of  the  court  or  a 
magistrate,  under  the  moral  and  legal  sanctions  of  an  oath,  and 
where  the  moral  and  intellectual  character,  the  motives  and 
deportment  of  the  witness  can  be  examined,  and  his  capacity  and 

8  Bosworth  V.  Cotchett,  Dom.  Proc.  May  6,  1824;  Phil.  &  Am.  on  Evid.  348; 
Gleadow  v.  Atkin,  1  Cr.  &  M.  410  ;  Anderson  v.  Weston,  6  Bing.  N.  C.  296  ;  2  Smith's 
Lead.  Cas.  197  ;  Addams  v.  Seitzinger,  1  Watts  &  Serg.  243. 

1  "  If,"  saj's  Mr.  Justice  Buller,  "  the  first  speech  were  without  oath,  another  oath, 
that  there  was  such  speech,  makes  it  no  more  than  a  bare  speaking,  and  so  of  no  value 
in  a  court  of  Justice."     Bull.  N.  P.  294. 

(rt)  But  the  admission  of  a  payment  at  tations,  will  not  have  the  effect  to  remove 

the  time  a  note  fell  due,  although  signed  the  bar,  the  effect  being  the  same  only  a3 

by  both   parties  and    indorsed    upon  the  if  made  at  the  time  the  admitted  payment 

note  at  a  period  within  the  statute  of  limi-  was  made.     Hayes  v.  Morse,  8  Vt.  316. 


CHAP,    v.]  OP   HEARSAY.  191 

opportunities  for  observation,  and  his  memory,  can  be  tested  by 
a  cross-examination.  Such  evidence,  moreover,  as  to  oral  dec- 
larations, is  very  liable  to  be  fallacious,  and  its  value  is,  there- 
fore, greatly  lessened  by  the  probability  that  the  declaration  was 
imperfectly  heard,  or  was  misunderstood,  or  is  not  accurately 
remembered,  or  has  been  perverted.  It  is  also  to  be  observed, 
that  the  persons  communicating  such  evidence  are  not  exposed 
to  the  danger  of  a  prosecution  for  perjury,  in  which  something 
more  than  the  testimony  of  one  witness  is  necessary,  in  order 
to  a  conviction;  for  where  the  declaration  or  statement  is  sworn 
to  have  been  made  when  no  third  person  was  present,  or  by  a 
person  who  is  since  dead,  it  is  hardly  possible  to  punish  the  wit- 
ness, even  if  his  testimony  is  an  entire  fabrication. ^  To  these 
reasons  may  be  added  considerations  of  public  interest  and  con- 
venience for  rejecting  hearsay  evidence.  The  greatly  increased 
expense  and  the  vexation  which  the  adverse  party  must  incur  in 
order  to  rebut  or  explain  it,  the  vast  consumption  of  public  time 
thereby  occasioned,  the  multiplication  of  collateral  issues  for 
decision  by  the  jury,  and  the  danger  of  losing  sight  of  the  main 
question  and  of  the  justice  of  the  case  if  this  sort  of  proof  were 
admitted,  are  considerations  of  too  grave  a  character  to  be  over- 
looked by  the  court  or  the  legislature,  in  determining  the  ques- 
tion of  changing  the  rule.^ 

§  125.  Declarations  under  oath.  The  rule  applies,  though  the 
declaration  offered  in  evidence  was  made  upon  oath,  and  in 
the  course  of  a  judicial  proceeding,  if  the  litigating  parties  are 
not  the  same.  Thus,  the  deposition  of  a  pauper,  as  to  the  place 
of  his  settlement,  taken  ex  'parte  before  a  magistrate,  was  re- 
jected, though  the  pauper  himself  had  since  absconded,  and  was 
not  to  be  found.  ^  The  rule  also  applies,  notwithstanding  no 
better  evidence  is  to  be  found,  and  though  it  is  certain,  ^hat,  if 
the  declaration  offered  is  rejected,  no  other  evidence  can  pos- 
sibly be  obtained ;  as,  for  example,  if  it  purports  to  be  the  de- 
claration of  the  only  eye-witness  of  the  transaction,  and  he  is 
since  dead.^ 

2  Phil.  &  Am.  on  Evid.  217  ;  1  Phil.  Evid.  205,  206.  See,  as  to  the  liability  of 
words  to  iiiiscoiistruction,  the  remarks  of  Mr.  Justice  Foster,  in  his  discourse  on  High 
Treason,  c.  1,  §  7.  The  rule  excluding  hearsay  is  not  of  great  antii^uity.  One  of  the 
earliest  cases  in  which  it  was  administered,  was  that  of  Sampson  v.  Yardly  and  Tottill, 
2  Keb.  223,  pi.  74,  19  Car.  II. 

3  Mima  Queen  v.  Hepburn,  7  Cranch,  290,  296,  per  Marshall,  C.  J. 

1  Rex  V.  Nuneham  Courtney,  1  East,  373  ;  Rex  v.  Ferry  Frystone,  2  East,  fi4 ; 
Rex  V.  Eriswell,  3  T.  R.  707-725,  per  Lord  Kenyou,  C.  J.,  and  Grose,  J.,  whose 
opinions  are  approved  and  adopted  in  Mima  Queen  v.  Hepburn,  7  Craiidi,  296. 

^  Phil.  &  Am.  on  Evid.  220,  221  ;  1  Phil.  Evid.  209,  210.  In  Scotland,  the  rule  is 
otherwise  ;   evidence  on  the  relation  of  others  being  admitted,  where  the  relator  is 


192  LAW   OF   EVIDENCE.  [PART   II. 

§  126.    Exception.     An  exception  to  this  rule  has  been  con- 
tended for  in  the  admission  of  the  declarations  of  a  deceased  at- 
testing witness  to  a  deed  or  will,  in  disparagement  of  the  evidence 
afforded  by  his  signature.     This  exception  has  been  asserted,  on 
two  grounds :  first,  that  as  the  party  offering  the  deed  used  the 
declaration  of  the  witness,  evidenced  by  his  signature,  to  prove 
the  execution,  the  other  party  might  well  be  i)ermitted  to  use  any 
other  declaration  of  the  same  witness  to  disprove  it;  and,  sec- 
ondhj,  that  such  declaration  was  in  the  nature  of  a  substitute  for 
the  loss  of  the  benefit  of  a  cross-examination  of  the   attesting 
witness ;  by  which,  either  the  fact  confessed  would  have  been 
proved,   or  the  witness  might  have  been  contradicted,   and  his 
ciedit  impeached.      Both  these  grounds  were  fully  considered  in 
a  case  in  the  exchequer,  and  were  overruled  by  the  court :  the 
first,  because  the  evidence  of  the  handwriting,  in  the  attestation, 
is  not  used  as  a  declaration  by  the  witness,  but  is  offered  merely 
to  show  the  fact  that  he  put  his  name  there,  in  the  manner  in 
which  attestations  are  usually  placed  to  genuine  signatures ;  and 
the  second,  chiefly  because  of  the  mischiefs  which  would  ensue, 
if  the  general  rule  excluding  hearsay  were  thus  broken  in  upon. 
For  the  security  of  solemn  instruments  would  thereby  become 
much  impaired,  and  the  rights  of  parties  under  them  would  be 
liable  to  be  affected  at  remote  periods,  by  loose  declarations  of 
the  attesting  witnesses,  which  could  neither  be  explained  nor 
contradicted  by  the  testimony  of  the  witnesses  themselves.     In 
admitting  such  declarations,  too,  there  would  be  no  reciprocity ; 
for,  though  the  party  impeaching  the  instrument  would  thereby 
have  an  equivalent  for  the  loss  of  his  power  of  cross-examination 
of  the  living  witness,  the  other  party  would  have  none  for  the 
loss  of  his  power  of  re-examination.'  {a) 

since  dead,  and  would,  if  living,  have  been  a  competent  witness.  And  if  the  relation 
has  been  handed  down  to  the  witness  at  second-hand,  and  through  several  successive 
relators,  each  only  stating  what  he  received  from  an  intermediate  relator,  it  is  still 
admissible,  if  the  original' and  intermediate  relators  are  all  dead,  and  would  have  been 
competent  witnesses  if  living.  Tait  on  Evid.  pp.  430,  431.  But  the  reason  for 
receiving  hearsay  evidence,  in  cases  where,  as  is  generally  the  case  in  Scotland,  the 
judges  determine  upon  the  facts  in  dispute,  as  well  as  upon  the  law,  is  stated  and 
vindicated  by  Sir  James  Mansfield,  in  the  Berkeley  Peerage  Case,  4  Campb.  415. 
1  Stobart  v.  Dryden,  1  M.  &  W.  615. 

[a)  But  the  doctrine  of  Stobart  V.  Dry-  times,   with    a    view    to    show    that   the 

den   has   been   denied,    and   it    has   been  will  was  never  duly   executed.     Ottersou 

held  that,  on  the  production  of  a  certified  v.    Hotford,    36    N.    J.    129;     Reformed 

copy  of  a  will  and  of  the  affidavit  of  the  Dutch   Church   v.    Ten    fLyck,    1    Dutch, 

subscriljing  witnesses  made  at  the  time  of  (N.  J.)  40.      So  the  had  character  of  the 

probate,  it  is  permissible  to  impeach  the  subscribing  witness  may  be  shown  for  the 

affidavit  of  one  of  tlie  witnesses  by  showing  same  purpose.     Losee  v.  Losee,  2  Hill  (N. 

contradictory  statements    made    at   other  Y.),  609. 


CHAP.    VI.]  MATTERS   OP   GENERAL   INTEREST.  193 


CHAPTER   VI. 

OF   MATTERS   OF   PUBLIC    AND   GENERAL   INTEREST. 

§  127.  When  hearsay  admissible.  Having  thus  illustrated  the 
nature  of  hearsay  evidence,  and  shown  the  reasons  on  which  it  is 
generally  excluded,  we  are  now  to  consider  the  cases  in  which 
this  rule  has  been  relaxed,  and  hearsay  admitted.  The  excep- 
tions, thus  allowed,  will  be  found  to  embrace  most  of  the  points 
of  inconvenience,  resulting  from  a  stern  and  universal  applica- 
tion of  the  rule,  and  to  remove  the  principal  objections  which  have 
been  urged  against  it.  These  exceptions  may  be  conveniently 
divided  into  four  classes :  first,  those  relating  to  matters  of  public 
and  general  interest ;  secondly,  those  relating  to  ancient  posses- 
sions; thirdly,  declarations  against  interest;  fourthly,  dying 
declarations,  and  some  others  of  a  miscellaneous  nature ;  and  in 
this  order  it  is  proposed  to  consider  them.  It  is,  however,  to 
be  observed,  that  these  exceptions  are  allowed  only  on  the  ground 
of  the  absence  of  better  evidence,  and  from  the  nature  and 
necessity  of  the  case. 

§  128.  Matters  of  general  interest.  And  first,  as  to  matters  of 
public  atid  general  interest.  The  terms  public  and  general  are 
sometimes  used  as  synonymous,  meaning  merely  that  which  con- 
cerns a  multitude  of  persons.  ^  But,  in  regard  to  the  admissibility 
of  hearsay  testimony,  a  distinction  has  been  taken  between  them ; 
the  term  public  being  strictly  applied  to  that  which  concerns  all 
the  citizens,  and  every  member  of  the  State ;  and  the  term  gen- 
eral being  referred  to  a  lesser,  though  still  a  large,  portion  of  the 
community.  In  matters  of  public  interest,  all  persons  must  be 
presumed  conversant,  on  the  principle  that  individuals  are  pre- 
sumed to  be  conversant  in  their  own  aifairs;  and,  as  common 
rights  are  naturally  talked  of  in  the  community,  what  is  thus 
dropped  in  conversation  may  be  presumed  to  be  true.^  It  is  the 
prevailing  current  of  assertion  that  is  resorted  to  as  evidence,  for 
it  is  to  this  that  every  member  of  the  community  is  supposed  to 

1  Weeks  r.  Sparke,  1  M.  &  S.  690,  per  Bayley,  J. 

2  Morewood  v.  Wood,  14  East,  329  n.,  per  Ld.  Kcnyon  ;  Weeks  v.  Sparke.  1  M. 
&  S.  686,  per  Ld.  EUenborough  ;  Berkeley  Peerage  Case,  4  Campb.  416,  per  Mans- 
field, C.  J. 

VOL.    I.  —  13 


194  LAW   OF   EVIDENCE.  [PART   II. 

be  privy,  and  to  contribute  his  share.  Evidence  of  common 
reputation  is,  therefore,  received  in  regard  to  public  facts  (a 
claim  of  highway,  or  a  right  of  ferry,  for  example),  on  ground 
somewhat  similar  to  that  on  which  public  documents,  not  judi- 
cial, are  admitted ;  namely,  the  interest  which  all  have  in  their 
truth,  and  the  consequent  probability  that  they  are  true.^  In 
these  matters,  in  which  all  are  concerned,  reputation  from  any 
one  appears  to  be  receivable ;  but  of  course  it  is  almost  worthless, 
unless  it  comes  from  persons  who  are  shown  to  have  some  means 
of  knowledge ;  such  as,  in  the  case  of  a  highway,  by  living  in  the 
neighborhood:  but  the  want  of  such  proof  of  their  connection 
with  the  subject  in  question  affects  the  value  only,  and  not  the 
admissibility,  of  the  evidence.  On  the  contrary,  where  the  fact 
in  controversy  is  one  in  which  all  the  members  of  the  community 
have  not  an  interest,  but  those  only  who  live  in  a  particular  dis- 
trict, or  adventure  in  a  particular  enterprise,  or  the  like,  hearsay 
from  persons  wholly  unconnected  with  the  place  or  business 
would  not  only  be  of  no  value,  but  altogether  inadmissible.^  (a) 

§  129.  Rights  in  common.  Thus,  in  an  action  of  trespass  quare 
clausum  fregit,  where  the  defendant  pleaded  in  bar  a  prescrip- 
tive right  of  common  in  the  locus  in  quo,  and  the  plaintiff'  replied, 
prescribing  the  right  of  his  messuage  to  use  the  same  ground  for 
tillage  with  corn  until  the  harvest  was  ended,  traversing  the 
defendant's  prescription ;  it  appearing  that  many  persons  beside 
the  defendant  had  a  right  of  common  there,  evidence  of  repu- 
tation, as  to  the  plaintiff's  right,  was  held  admissible,  provided 
it  were  derived  from  persons  conversant  with  the  neighbor- 
hood.^ {h)    But  where  the  question  was,  whether  the  city  of  Ches- 

3  1  Stark.  Evid.  195  ;  Pirn  v.  Curell,  6  M.  &  W.  234.  And  see  Noyes  v.  Ward,  19 
Conn.  250. 

*  Crea.se  v.  Barrett,  1  Cr.  M.  &  R.  929,  per  Parke,  B.  By  the  Roman  law,  leputa- 
tion  or  common  fame  seems  to  have  been  admissible  in  evidence,  in  all  cases  ;  but  it 
was  not  generally  deemed  sufficient  proof,  and,  in  some  cases,  not  even  semiplena  proha- 
tio,  unless  corroborated:  "nisi  aliis  adminiculis  adjuvetur."  Mascardus,  De  Prob. 
vol.  i.  Concl.  171,  n.  1  ;  Concl.  183,  n.  2  ;  Concl.  547,  n.  149.  It  was  held  sufficient 
plena  prohatio,  wherever,  from  the  nature  of  the  case,  better  evidence  was  not  attaina- 
ble :  "  ubi  a  communiter  accidentibus,  probatio  difficilis  est,  fama  plenam  solet  proba- 
tionem  facere  ;  ut  in  probatione  filiationis."  But  Mascardus  deems  it  not  sufficient,  in 
cases  of  pedigree  within  the  memory  of  man,  which  he  limits  to  fifty-six  years,  unless 
aided  by  other  evidence,  "  tunc  nempe  non  sufficeret  publica  vox  et  fama,  sed  una  cum 
ipsa  deberet  tractatus  et  nominatio  probari  vel  alia  adminicula  urgentia  adhiberi." 
Mascard.   De  Prob.  vol.  i.  Concl.  411,  n.  1,  2,  6,  7. 

1  Weeks  v.  Sparke,  1  M.  &  S.  679,  688,  per  Le  Blanc,  J.  The  actual  discussion  of 
the  subject  in  the  neighborhood  was  a  fact  also  relied  on  in  the  Roman  Law,  in  cases  of 

(a)  Persons  living  out  of  such  district  {h)  Lord   Dunraven   v.  Llewellyn,   15 

are  not  presumed  to  know  such  fact,  and  Q.  B.    809  ;  Warrick  v.  Queen's  College, 

cannot  therefore  be  affected  by  proof  of  it.  40  L.  J.  C.  785. 
Dunbar  v.  Mulry,  8  Gray,  163. 


CHAP.    Vr.]  MATTERS   OP   GENERAL   INTEREST.  195 

ter  anciently  formed  part  of  the  county  palatine,  an  ancient 
document,  purporting  to  be  a  decree  of  certain  law  officers  and 
dignitaries  of  the  crown,  not  having  authority  as  a  court,  was 
held  inadmissible  evidence  on  the  ground  of  reputation,  they 
having,  from  their  situations,  no  peculiar  knowledge  of  the  fact.^ 
And,  on  the  other  hand,  where  the  question  was,  whether  Not- 
tingham Castle  was  within  the  hundred  of  Broxtowe,  certain 
ancient  orders,  made  by  the  justices  at  the  quarter-sessions  for 
the  county,  in  which  the  castle  was  described  as  being  within 
that  hundred,  were  held  admissible  evidence  of  reputation ;  the 
justices,  though  not  proved  to  be  residents  within  the  county  or 
hundred,  being  presumed,  from  the  nature  and  character  of  their 
offices  alone,  to  have  sufficient  acquaintance  with  the  subject  to 
which  their  declarations  related. ^  Thus  it  appears  that  compe- 
tent knowledge  in  the  declarant  is,  in  all  cases,  an  essential  pre- 
requisite to  the  admission  of  his  testimony ;  and  that  though  all 
the  citizens  are  presumed  to  have  that  knowledge,  in  some  de- 
gree, where  the  matter  is  of  public  concernment,  yet,  in  other 
matters,  of  interest  to  many  persons,  some  particular  evidence 
of  such  knowledge  is  required,  (b) 

§  130.  Rights  must  be  ancient  and  declarants  dead.  It  is  to  be 
observed,  that  the  exception  we  are  now  considering  is  admitted 
onl]/  in  the  case  of  ancient  rights,  and  in  respect  to  the  declara- 
tions of  persons  supposed  to  be  dead.'^  It  is  required  by  the  na- 
ture of  the  rights  in  question;  their  origin  being  generally  ante- 
cedent to  the  time  of  legal  memory,  and  incapable  of  direct  proof 
by  living  witnesses,  both  from  this  fact,  and  also  from  the  un- 
defined generality  of  their  nature.  It  has  been  held,  that,  where 
the  nature  of  the  case  admits  it,  a  foundation  for  the  reception 
of  hearsay  evidence,  in  matters  of  public  and  general  interest, 
should  first  be  laid  by  proving  acts  of  enjoyment  within  the 
period  of  living  memory. ^     But  this  doctrine  has  since  been 

proof  by  common  fame.  "  Quando  testis  vult  prohare  aliquem  scivisse,  non  videtur 
sufficere,  ijuod  dicat  ille  scivit  quia  erat  vicinus  ;  sed  debet  addere,  in  vicinia  hoc  erat 
cognitum  per  famam,  vel  alio  niodo  ;  et  ideo  iste,  qui  erat  vicinus.  potuit  id  scire." 
J.   Menochius,  De  Pra^sump.  torn.  ii.  lib.  6,  Prses.  24,  n.  17,  p.  772. 

2  Rogers  v.  Wood,  2  Barn.  &  Ad.  245. 

3  Duke  of  Newcastle  v.  Broxtowe,  4  Barn.  &  Ad.  273. 

1  Moseley  v.  Davies,  11  Price,  162  ;  Regina  v.  Milton,  1  Car.  &  Kir.  58  ;  Davis  v. 
Fuller,  12  Vt.  178. 

2  Per  Buller,  J.,  in  Morewood  v.  Wood,  14  East,  330,  n.  ;  per  Le  Blanc,  J.,  in  Weeks 
V.  Sparke,  1  M.  &  S.  G88,  689. 

(h)  Tf  the  quality  of  the  hearsay  evi-  subject,  the  courts  will  not  require  inde- 
dence  raises  a  natural  inference  that  "it  was  pendent  proof  of  that  fact.  Freeman  v. 
derived  from  persons  acquainted  with  the     Phillipps,  4  M.  &  S.  486. 


196  LAW   OF   EVIDENCE,  [PART    II. 

overruled ;  and  it  is  now  held,  that  such  proof  is  not  an  essential 
condition  of  the  reception  of  evidence  of  reputation,  but  is  only 
material  as  it  affects  its  value  when  received. ^  Where  the  na- 
ture of  the  subject  does  not  admit  of  proof  of  acts  of  enjoyment, 
it  is  obvious  that  proof  of  reputation  alone  is  sufficient.  So, 
where  a  right  or  custom  is  established  by  documentary  evidence, 
no  proof  is  necessary  of  any  particular  instance  of  its  exercise ; 
for,  if  it  were  otherwise,  and  no  instance  were  to  happen  within 
the  memory  of  man,  the  right  or  custom  would  be  totally  de- 
stroyed.* In  the  case  of  a  private  right,  however,  where  proof  of 
particular  instances  of  its  exercise  has  first  been  given,  evidence 
of  reputation  has  sometimes  been  admitted  in  confirmation  of  the 
actual  enjoyment;  but  it  is  never  allowed  against  it.^(a) 

§  131.  Declarations  must  be  ante  litem  motam.  Another  impor- 
tant qualification  of  the  exception  we  have  been  considering,  by 
which  evidence  of  reputation  or  common  fame  is  admitted,  is, 
that  the  declaration  so  received  must  have  been  made  before  any 
controversy  arose  touching  the  matter  to  which  it  relates ;  or,  as 
it  is  usually  expressed,  ante  litem  motam.  The  ground  on  which 
such  evidence  is  admitted  at  all  is,  that  the  declarations  "are 
the  natural  effusions  of  a  party  who  must  know  the  truth,  and 
who  speaks  upon  an  occasion  when  his  mind  stands  in  an  even 
position,  without  any  temptation  to  exceed  or  fall  short  of  the 
truth. "  1  But  no  man  is  presumed  to  be  thus  indifferent  in  regard 
to  matters  in  actual  controversy :  for,  when  the  contest  has  be- 
gun, people  generally  take  part  on  the  one  side  or  the  other; 
their  minds  are  in  a  ferment;  and,  if  they  are  disposed  to  speak 

3  Crease  v.  Barrett,  1  Cromp.  Mees.  &  Rose.  919,  930.  See  also  ace.  Curzon  v.  Lo- 
max,  5  Esp.  60,  per  Ld.  Elleiiborough  ;  Steele  v.  Prickett,  2  Stark.  463,  466,  per  Ab- 
bott, C.  J.  ;  Ratcliffe  v.  Chapman,  4  Leon.  242,  as  explained  by  Grose,  J.,  in  Beebe 
V.  Parker,  5  T.  R.  32. 

4  Beebe  v.  Parker,  5  T.  R.  26,  32  ;  Doe  v.  Sisson,  12  East,  62  ;  Steele  v.  Prickett, 
2  Stark.  463,  466.  A  single  act,  undisturbed,  has  been  held  sufficient  evidence  of  a 
custom,  the  court  refusing  to  set  aside  a  verdict  finding  a  custom  upon  such  evidence 
alone.     Roe  v.  Jeffery,  2  M.  &  S.  92  ;  Doe  v.  Mason,  3  Wils.  63. 

5  White  V.  Lisle,  4  Mad.  214,  225.  See  Morewood  v.  Wood,  14  East,  330,  n.,  per 
Buller,  J.  ;  Weeks  v.  Sparke,  1  M.  &  S.  690,  per  Bayley,  J.  ;  Rogers  v.  Allen,  1  Campb. 
309 ;  Richards  v.  Bassett,  10  B.  &  C.  662,  663,  per  Littledale,  J.  A  doctrine  nearly 
similar  is  held  by  the  civilians,  in  cases  of  ancient  private  rights.  Thus  Mascardus, 
after  stating,  upon  the  authority  of  many  jurists,  that  "  Dominium  in  antiquis  probari 
jier  famam,  traditum  est,  —  veluti  si  fama  sit,  banc  domum  fuisse  Dantis  Poets,  vel 
alterius,  qui  decessit,  jam  sunt  centum  anni,  et  nemo  vidit  qui  viderit,  quern  refert," 
&c.,  subsequently  qualifies  this  general  proposition  in  these  words  :  "  Primo  limita  prin- 
cipalem  conclusionem,  ut  non  procedat,  nisi  cum  fama  concurrant  alia  adminicula, 
saltern  praesentis  possession  is,"  &c.     Mascard.  De  Prob.  vol.  ii.  Concl.  547,  n.  1,  14. 

1  Per  Ld.  Eldon,  in  Whitelocke  v.  Baker,  13  Ves.  514  ;  Rex  v.  Cotton,  3  Campb. 
444,  446,  per  Dampier,  J. 

(a)  Reg.  V.  Bedfordshire,  4  E.  &  B.  535  ;  Pritchard  v.  Powell,  10  Q.  B.  599  :  Drink- 
water  I'.  Porter,  7  C.  &  P.  181. 


CHAP.    VI.]  MATTERS   OP   GENERAL   INTEREST.  197 

the  truth,  facts  are  seen  by  them  through  a  false  medium.  To 
avoid,  therefore,  the  mischiefs  which  would  otherwise  result,  all 
ex  "parte  declarations,  even  though  made  upon  oath,  referring  to 
a  date  subsequent  to  the  beginning  of  the  controversy,  are  re- 
jected.2  This  rule  of  evidence  was  familiar  in  the  Roman  law; 
but  the  term  lu  mota  was  there  applied  strictly  to  the  commence 
ment  of  the  action,  and  was  not  referred  to  an  earlier  period  of 
the  controversy.^  But  in  our  law  the  term  lis  is  taken  in  the 
classical  and  larger  sense  of  controversy ;  and  by  lis  mota  is  un- 
derstood the  commencement  of  the  controversy,  and  not  the 
commencement  of  the  suit.*  (a)  The  commencement  of  the  con- 
troversy has  been  further  defined  by  Mr.  Baron  Alderson,  in  a 
case  of  pedigree,  to  be  "  the  arising  of  that  state  of  facts  on  which 
the  claim  is  founded,  without  anything  more.  "^(5)  . 

§  132.  Lis  mota  defined.  The  lis  mota^  in  the  sense  of  our 
law,  carries  with  it  the  further  idea  of  a  controversy  upon  the 
same  particular  subject  in  issue.  For,  if  the  matter  under  discus- 
sion at  the  time  of  trial  was  not  in  controversy  at  the  time  to 
which  the  declarations  offered  in  evidence  relate,  they  are  ad- 
missible, notwithstanding  a  controversy  did  then  exist  upon 
some  other  branch  of  the  same  general  subject.  The  value  of 
general  reputation,  as  evidence  of  the  true  state  of  facts,  depends 
upon  its  being  the  concurrent  belief  of  minds  unbiassed,  and  in 
a  situation  favorable  to  a  knowledge  of  the  truth,  and  referring 
to  a  period  when  this  fountain  of  evidence  was  not  rendered  tur- 
bid by  agitation.     But  the  discussion  of  other  topics,  however 

2  The  Berkeley  Peerage  Case,  4  Campb.  401,  409,  412,  413  ;  Monkton  v.  Attorney- 
General,  2  Russ.  &  My.  160,  161  ;  Richards  v.  Bassett,  10  B.  &  C.  657. 

'  "  Lis  est,  ut  prirnum  in  jus,  vel  in  judicium  ventum  est  ;  antequam  in  judicium 
veniatur,  controversia  est,  non  lis."  Cujac.  Optna  Posth.  torn.  v.  col.  193,  B.  and  col. 
162,  D.  "  Lis  inchoata  est  ordinata  per  lihellum,  et  satisdationem,  licet  non  sit  lis 
contestata."  Corpus  Juris,  Glossatum,  tom.  i,  col.  553,  ad.  Dig.  lib.  iv.  tit.  6,  1.  12. 
"Lis  mota  censetur,  etiamsi  solus  actor  egerit."     Calv.  Lex.  verb.  Lis  Mota. 

*  Per  Mansfield,  C.  J.,  in  the  Berkeley  Peerage  Case,  4  Campb.  417  ;  Monkton  i-. 
Attorney-General,  2  Russ.  &  My.  161. 

5  Walker  v.  Countess  of  Beauchamp,  6  C.  &  P.  552,  561.  But  see  Reilly  v.  Fitz- 
gerald, 1  Drury  (Ir. ),  122,  where  this  is  questioned. 

(a)  Mr.  Stephen  (Digest  of  Evidence,  pute,  but  a  lis  mota  or  suit,  or  controversy 

art.  3)   says,  these  declarations  must   be  preparatory  to  a  suit  actually  commenced, 

made   before   the  question   in   relation  to  And  upon  the  subject-matter  in  litigation, 

which  they  are  to  be  proved  has  arisen,  but  Davies  v.   Lowndes,  7   Scott,   N.   R.   214. 

they  do  not  cease  to  be  deemed  to  be  rele-  And  in  the  late  case  of  Butler  v.  Mount- 

vant  because  they  were  made  for  the  pur-  garret,  7  H.  L.  Cas.  633,  it  was  held  that 

pose    of    preventing    the    question    from  a  controversy  in  a  family,  though  not  at 

arising.  that  moment  the  subject  of  a  suit,  consti- 

ip)  See  Shedden  v.  Attorney-General,  tntes  sufficiently  a  lis  mota,  to  render 
2  Sw.  &  Tr.  170,  where  this  case  is  over-  inadmissible  a  letter  written  on  that  sub- 
ruled  ;  and  it  is  now  lield  that  this  must  jcct  by  one  member  of  the  family  and  ad- 
be  not  merely  facts  which  may  lead  to  dis-  dressed  to  another. 


198  LAW   OF   EVIDENCE.  [PART   II. 

similar  in  their  general  nature,  at  the  time  referred  to,  does  not 
necessarily  lead  to  the  inference  that  the  particular  point  in  issue 
was  also  controverted,  and,  therefore,  is  not  deemed  sufiicient  to 
exclude  the  sort  of  proof  we  are  now  considering.  Thus,  where, 
in  a  suit  between  a  copyholder  and  the  lord  of  the  manor,  the 
point  in  controversy  was,  whether  the  customary  fine,  payable 
upon  the  renewal  of  a  life-lease,  was  to  be  assessed  by  the  jury 
of  the  lord's  court,  or  by  the  reasonable  discretion  of  the  lord 
himself;  depositions  taken  for  the  plaintiff,  in  an  ancient  suit 
by  a  copyholder  against  a  former  lord  of  the  manor,  where  the 
controversy  was  upon  the  copyholder's  right  to  be  admitted  at 
all,  and  not  upon  the  terms  of  admission,  in  which  depositions 
the  customary  fine  was  mentioned  as  to  be  assessed  by  the  lord 
or  his  steward,  were  held  admissible  evidence  of  what  was  then 
understood  to  be  the  undisputed  custom.^  In  this  case,  it  was  ob- 
served by  one  of  the  learned  judges  that  "  the  distinction  had  been 
correctly  taken,  that,  where  the  lis  mota  was  on  the  very  point, 
the  declarations  of  persons  would  not  be  evidence ;  because  you 
cannot  be  sure,  that  in  admitting  the  depositions  of  witnesses, 
selected  a,nd  brought  forward  on  a  particular  side  of  the  question, 
who  embark,  to  a  certain  degree,  with  the  feelings  and  prejudices 
belonging  to  that  particular  side,  you  are  drawing  evidence  from 
perfectly  unpolluted  sources.  But  where  the  point  in  controversy 
is  foreign  to  that  which  was  before  controverted,  there  never  has 
been  a  Us  mota,  and  consequently  the  objection  does  not  apply. " 

§  133.  Declarations  post  litem  motam.  Declarations  made  after 
the  controversy  has  originated  are  excluded,  even  though  proof  is 
offered  that  the  existence  of  the  controversy  was  not  known  to 
the  declarant.  The  question  of  his  ignorance  or  knowledge  of 
this  fact  is  one  which  the  courts  will  not  try :  partly  because  of 
the  danger  of  an  erroneous  decision  of  the  principal  fact  by  the 
jury,  from  the  raising  of  too  many  collateral  issues,  thereby  in- 
troducing great  confusion  into  the  cause;  and  partly  from  the 
fruitlessness  of  the  inquiry,  it  being  from  its  very  nature  impos- 
sible, in  most  cases,  to  prove  that  the  existence  of  the  contro- 
versy was  not  known.  The  declarant,  in  these  cases,  is  always 
absent,  and  generally  dead.  The  light  afforded  by  his  declarations 
is  at  best  extremely  feeble,  and  far  from  being  certain ;  and  if  in- 
troduced, with  the  proof  on  both  sides,  in  regard  to  his  knowl- 
edge of  the  controversy,  it  would  induce  darkness  and  confusion, 
perilling  the  decision  without  the  probability  of  any  compensat- 

1  Freeman  v.  Phillipps,  4  M.  &  S.  486,  497  ;  Elliott  v.  Peirsol,  1  Peters,  328,  337. 


CHAP.    VI.] 


MATTERS   OF   GENERAL   INTEREST. 


199 


ing  good  to  the  parties.     It  is  therefore  excluded,  as  more  likely 
to  prove  injurious  than  beneficial.  ^  (a) 

1  Berkeley  Peerage  Case,  4  Campb.  417,  per  Mansfield,  C.  J.  ;  supra,  §  124.  This 
distinction,  and  tlie  reasons  of  it,  were  recognized  in  the  lionian  law  ;  but  there  the 
rule  was  to  admit  the  declarations,  though  made  post  litem  motam,  if  they  were  made 
at  a  place  so  very  far  remote  from  the  scene  of  the  controversy,  as  to  remove  all  suspi- 
cion that  the  declarant  had  heard  of  its  existence.  Thus  it  is  stated  by  Mascardus  : 
"  Istud  auteni  cpiod  diximus,  debere  testes  dcponere  ante  litem  motam,  sic  est  accipien- 
dura,  ut  verum  sit,  si  ibidem,  ubi  res  agitur,  auilierit  ;  at  si  alibi,  in  loco  ([ui  luiigis- 
sime  distaret,  sir,  intellexerit,  etiam  post  litem  motam  testes  de  auditu  admittuntur. 
Longincjuitas  eiiim  loci  in  causa  est,  ut  omnis  suspicio  abesse  videatur  qua'  quidem 
suspicio  adesse  potest,  quando  testis  de  auditu  post  litem  motam,  ibidem,  ubi  res  agi- 
tur, deponit."     Mascard.  De  Probat.  voL  1,  p.  401  [429],  Concl.  410,  n.  5,  6. 


{a)  It  follows  from  the  above  explana- 
tion of  lis  viotii,  first,  that  declarations 
will  not  be  rejected,  in  consequence  of  their 
having  been  made  with  the  express  view  of 
preventing  disputes;  secondly,  that  they 
are  admissible  if  no  dispute  has  arisen, 
though  made  in  direct  support  of  the  title  of 
the  declarant  ;  and,  thirdly,  that  the  mere 
fact  of  the  declarant  having  stood,  or 
having  believed  that  he  stood,  in  pari 
jure  with  the  party  relying  on  the  decla- 
ration, will  not  render  his  statement  inad- 
missible. In  support  of  the  lirst  proposi- 
tion, the  Bei-keley  Peerage  Case  may  be 
referred  to,  where  the  judges  unanimously 
held,  in  conlbrmity  with  an  earlier  opinion 
expressed  by  Lord  Mansfield  (Goodright 
V.  Moss,  2  Cowp.  591),  that  an  entry  made 
by  a  father  in  any  book,  for  the  express 
purpose  of  establishing  the  legitimacy  of 
his  son  at  the  time  of  his  birth,  in  case  the 
same  should  be  called  in  question,  will  be 
receivable  in  evidence,  notwithstanding 
the  professed  view  with  which  it  was  made. 
4  Campb.  418.  This  doctrine  has  since 
been  sanctioned  by  Lords  Brougham, 
(iMonkton  v.  Attorney-General,  2  Russ.  & 
Myl.  147,  160,  1(31,  164)  and  Cottenham 
in'England  (Slaney  iJ.  Wade,  1  Myl.  &  Gr. 
338),  and  by  Lord  St.  Leonards  in  Ireland 
(Reilly  v.  Fitzgerald,  6  Ir.  Eq.  33.5,  344- 
349),  and  may  now  be  considered  as  estab- 
lished law  in  lioth  countries  ;  but  a  decla- 
ration made  in  a  prior  cause  is  inadmissi- 
ble if  the  same  point  was  in  issue  in  that 
cause,  as  in  the  cause  in  which  the  decla- 
ration is  offered.  Jenkins  v.  Davies,  10  Q. 
B.  314.  One  of  the  latest  decisions  in 
support  of  the  second  proposition  is  Doe 
V.  Davies,  10  Q.  B.  314,  325,  where  the 
court  observed  that  although  a  feeling  of 
interest  will  often  cast  suspicion  on  decla- 
rations, it  has  never  been  held  to  render 
them  inadmissible.  The  third  propsition 
is  equally  clear  law ;  for  although  one 
peerage  case  appeal's  at  first  sight  to  throw 
some  doubt  upon  the  subject  (Zouch  Peer., 


Pr.  Min.  297),  yet  it  is  highly  probable 
that  the  pedigree  was  there  rejected,  not  as 
having  been  made  by  a  party  while  stand- 
ing in  the  same  situation  as  the  claimant, 
but  as  having  been  concocted  by  such  per- 
son in  direct  contemplation  of  himself  lay- 
ing clainr  to  the  dignity. 

But  even  if  the  case  be  not  susceptible 
of  this  explanation,  a  single  isolated  deci- 
sion can  scarcely  controvert  a  rule  of  law 
which  has  been  sanctioned  and  acted  upon 
by  numerous  judges,  Moseley  v.  Davies,  11 
Price,  162, 179,  ]ier  Graham,  B. ;  Harwood 
V.  Sims,  Wightw.  112;  Deacle  v.  Hancock, 
13  Price,  236,  237  ;  Monkton  v.  Attorney- 
General,  2  Russ.  &  Myl.  159,  160,  per  Ld. 
Brougham  ;  Freeman  v.  Phillipps,  4  M.  & 
S.  486,  491,  per  Ld.  Ellenborough,  cited 
with  approbation  by  Ld.  Lvndhurst,  C. 
B.,  in  Davies  v.  Morgan,  1  C.  &  J.  593, 
594  ;  NichoUs  v.  Parker,  14  East,  331,  n.; 
Doe  V.  Tarver,  Ry.  &  M.  141,  142,  per 
Abbott,  C.  .J.,  and  which  is  so  founded  on 
reason,  that  a  contrary  doctrine  would  go 
far  towards  excluding  all  evidence  of  repu- 
tation. For  instance,  in  cases  of  public 
and  general  interest,  the  rejection  of  such 
evidence  would  be  wholly  inconsistent  with 
the  rule  which  requires  the  statement  to 
have  been  made  by  some  person  having 
competent  knowledge  of  the  subject,  post, 
§  136;  and  in  cases  of  pedigrees,  thougli  the 
result  of  excluding  declaintions  of  persons 
inparijure  would  not  be  equally  mischiev- 
ous, it  would  frequently  liave  the  effect 
of  drying  up  sources  of  information  which 
would  be  highly  valuable  in  the  investiga- 
tion of  truth.  In  any  one  of  the  three 
classes  of  declarations  just  mentioned,  it 
is  very  possible  that  the  declarant  may 
have  had  some  secret  wish  or  bias  which 
may  have  induced  him  to  make  a  state- 
ment either  partially  or  totally  false  ;  but 
the  same  observation  might  apply  to  all 
evidence  of  this  nature,  and  its  weight  in 
each  particular  case  must  be  determined 
by  the  jury.     Tay.  Ev.  §§  565,  566. 


200  LAW   OF   EVIDENCE.  [PART  II. 

§  134.  Exception  of  declarations  as  to  pedigree.  Tt  has  some- 
times been  laid  down,  as  an  exception  to  the  rule  excluding 
declarations  made  post  litem  motam,  that  declarations  concern- 
ing jyt^c^/^r^je  will  not  be  invalidated  by  the  circumstance  that  they 
were  made  during  family  discussions,  and  for  the  purpose  of  pre- 
venting future  controversy;  and  the  instance  given,  by  way  of 
illustration,  is  that  of  a  solemn  act  of  parents,  under  their  hands, 
declaring  the  legitimacy  of  a  child.  But  it  is  conceived  that 
evidence  of  this  sort  is  admissible,  not  by  way  of  exception  to  any 
rule,  but  because  it  is,  in  its  own  nature,  original  evidence ;  con- 
stituting part  of  the  fact  of  the  recognition  of  existing  relations 
of  consanguinity  or  affmity ;  and  falling  naturally  under  the  head 
of  the  expression  of  existing  sentiments  and  affections,  or  of 
declarations  against  the  interest,  and  peculiarly  within  the 
knowledge  of  the  party  making  them,  or  of  verbal  acts,  part  of 
the  res  gestce.^ 

§  135.  Witness  need  not  specify  from  whom  he  heard.  Where 
evidence  of  reputation  is  admitted,  in  cases  of  public  or  general 
interest,  it  is  not  necessary  that  the  witness  should  be  able  to 
specif y  from  ivhom  he  heard  the  declarations.  For  that,  in  much 
the  greater  number  of  cases,  would  be  impossible ;  as  the  names 
of  persons  long  since  dead,  by  whom  declarations  upon  topics  of 
common  repute  have  at  some  time  or  other  been  made,  are  mostly 
forgotten.  ^  And,  if  the  declarant  is  known,  and  appears  to  have 
stood  in  pari  casu  with  the  party  offering  his  declarations  in 
evidence,  so  that  he  could  not,  if  living,  have  been  personally 
examined  as  a  witness  to  the  fact  of  which  he  speaks,  this  is  no 
valid  objection  to  the  admissibility  of  his  declarations.  The 
reason  is,  the  absence  of  opportunity  and  motive  to  consult  his 
interest,  at  the  time  of  speaking.  Whatever  secret  wish  or  bias 
he  may  have  had  in  the  matter,  there  was,  at  that  time,  no  ex- 
cited interest  called  forth  in  his  breast,  or,  at  least,  no  means 
were  afforded  of  promoting,  nor  danger  incurred  of  injuring,  any 
interest  of  his  own;  nor  could  any  such  be  the  necessary  result 
of  his  declarations.  Whereas,  on  a  trial,  in  itself  and  of  neces- 
sity directly  affecting  his  interest,  there  is  a  double  objection  to 
admitting  his  evidence,  in  the  concurrence  both  of  the  tempta- 
tion of  interest  and  the  excitement  of  the  lis  mota.^ 

8  Stipra,  §§  102-108,  131  ;  Goodright  v.  Moss,  Cowp.  591  ;  Monkton  v.  Attorney- 
General,  2  Russ.  &  My.  147,  160,  161,  164  ;  Slaney  v.  Wade,  1  My.  &  Cr.  338  ;  Berke- 
ley Peerage  Case,  4  Campb.  418,  per  Mansfield,  C.  J. 

1  Moseley  v.  Davies,  11  Price,  162,  174,  per  Richards,  C.  B.  ;  Harvvood  v.  Sims, 
Wight  w.  112. 

2  Moseley  v.  Davies,  11  Price,  179,  per  Graham,  B. ;  Deacle  v.  Hancock,  13  Price, 


CHAP.    VI.]  MATTERS   OP   GENERAL   INTEREST.  201 

§  136.  Must  have  knowledge.  Indeed  the  rejection  of  the 
evidence  of  reputation,  in  cases  of  public  or  general  interest, 
because  it  may  have  come  from  persons  iyi  pari  casu  with  the 
party  offering  it,  would  be  inconsistent  with  the  qualification  of 
the  rule  which  has  already  been  mentioned ;  namely,  that  the 
statement  thus  admitted  must  appear  to  have  been  made  by  per^ 
sons  having  competent  knowledge  of  the  subject.^  Without  such 
knowledge,  the  testimony  is  worthless.  In  matters  of  public 
right,  all  persons  are  presumed  to  possess  that  degree  of  knowl- 
edge which  serves  to  give  some  weight  to  their  declarations  re- 
specting them,  because  all  have  a  common  interest.  But  in 
subjects  interesting  to  a  comparatively  small  portion  of  the  com- 
munity, as  a  city  or  parish,  a  foundation  for  admitting  evidence 
of  reputation,  or  the  declarations  of  ancient  and  deceased  per- 
sons, must  first  be  laid,  by  showing  that,  from  their  situation, 
they  probably  were  conversant  with  the  matter  of  which  they 
were  speaking. ^  (a) 

§  137.  Matters  of  private  interest.  The  probable  want  of  com- 
petent knowledge  in  the  declarant  is  the  reason  generally  assigned 
for  rejecting  evidence  of  reputation  or  common  fame,  in  matters 

236,  237  ;  Nicholls  v.  Parker,  14  East,  331,  n.  ;  Harwood  v.  Sims,  Wightw.  112; 
Freeman  v.  Phillipps,  4  M.  &  S.  486,  491,  cited  and  approved  by  Lyndhurst,  C.  B., 
in  Davies  v.  Morgan,  1  C.  &  J.  593,  594  ;  Monkton  v.  Attorney-General,  2  Russ.  & 
My.  159,  160,  per  Ld.  Ch.  Brougham  ;  Reed  v.  Jackson,  1  East,  355,  357  ;  Chapman 
V.  Cowlan,  13  East,  10. 

1  Supra,  §§  128,  129. 

2  Weeks  v.  Sparke,  1  M.  &  S.  679,  6S6,  690  ;  Doe  d.  Moleswovth  v.  Sleeman,  1 
New  Pr.  Gas.  170  ;  Morewood  v.  Wood,  14  East,  327,  n.  ;  Crease  v.  Barrett,  1  Cr.  M. 
&  Ros.  929  ;  Duke  of  Newcastle  v.  Broxtowe,  4  B.  &  Ad.  273.  Rogers  v.  Wood,  2  B. 
&  Ad.  245.  The  Roman  law,  as  stated  by  Mascardus,  agrees  with  the  doctrine  in  the 
text.  "  Confines  probantur,  per  testes.  Verum  scias  velim,  testes  in  hac  materia,  qui 
vicini,  et  ciruum  ibi  habitant  esse  magis  idoneos  quam  alios.  Si  testes  non  sentiant 
commodum  vel  iucommodum  inimediatum,  possint  pro  sua  comnuinitate  deponere. 
Licet  hujusmodi  testes  sint  de  universitate,  et  deponant  super  confinibus  sua;  universi- 
tatis,  probant,  dummodum  prsecipuum  ipsi  commodum  non  sentiant,  licent  inferant 
commodum  in  universum."  Mascard.  De  Probat.  vol.  iv.  pp.  389,  390,  Concl.  395, 
n.  1,  2,  9,  19. 

{ri)  So  in  Hammond  v.  Bradstreet,  10  described  by  them.     What  circumstances 

Ex.  390,  when  an  ancient  map  made  by  were   given   in   evidence   to   render   such 

Joshua  and  William  Kirby  was  otfered  in  declaration   admissible?     The  relation   of 

evidence  to  prove  the  boundaries  of  two  Joshua  and  William  to  John  Kirby  would 

counties,  Coleridge,  J.,  while  rejecting  the  not  have  that  effect.     They  do  not  appear 

evidence  says,    "but   assuming   it   to   be  to  have  been  deputed  to  make  the  map  by 

what  the  inscription  on  it  declared  it  to  be,  any  persons  interested  in  the  question,  nor 

a  map  prepared  in  1766,  in  part  from  an  to  have  anij  knowledge  of  their  own  on  the 

older  map  in  1736,  by  Joshua  and  William  subject,  nor  to  have  been  in  any  way  con- 

Kirby,  sons  of  John  Kirby,  who  made  a  nected  with  the  district,  so  as  to  make  it 

survey  in  1736,  at  the  utmost  this  was  only  probable  that  they  had  such  knowledge." 

a  declaration  by  Joshua  and  William  that  To  the  same  efl'ect  is  Beaufort  v.  Smith,  4 

they   believed    the    boundaries   to    be   as  Ex.  450. 
described  by  them,  or  that  they  were  as 


202  LAW   OF   EVIDENCE.  [PART   II. 

of  mere  private  right.  "Evidence  of  reputation,  upon  general 
points,  is  receivable,"  said  Lord  Kenyon,  "because,  all  mankind 
being  interested  therein,  it  is  natural  to  suppose  that  they  may 
be  conversant  with  the  subjects,  and  that  they  should  discourse 
together  about  them,  having  all  the  same  means  of  information. 
But  how  can  this  apply  to  private  titles,  either  with  regard  to 
particular  customs,  or  private  prescriptions  ?  How  is  it  possible 
for  strangers  to  know  anything  of  what  concerns  only  private 
titles? "  ^  The  case  of  prescriptive  rights  has  sometimes  been 
mentioned  as  an  exception;  but  it  is  believed,  that,  where  evi- 
dence of  reputation  has  been  admitted  in  such  cases,  it  will  be 
found  that  the  right  was  one  in  which  many  persons  were  equally 
interested.  The  weight  of  authority,  as  well  as  the  reason  of  the 
rule,  seems  alike  to  forbid  the  admission  of  this  kind  of  evidence, 
except  in  cases  of  a  public  or  quasi  public  nature. ^ 

§  138.  Particular  facts.  This  principle  may  serve  to  explain 
and  reconcile  what  is  said  in  the  books  respecting  the  admis- 
sibility of  reputation^  in  regard  to  particular  facts.  Upon  gen- 
eral points,  as  we  have  seen,  such  evidence  is  receivable,  because 
of  the  general  interest  which  the  community  have  in  them ;  but 
particular  facts  of  a  private  nature,  not  being  notorious,  may  be 
misrepresented  or  misunderstood,  and  may  have  been  connected 
with  other  facts,  by  which,  if  known,  their  effect  might  be  lim- 
ited or  explained.  Reputation  as  to  the  existence  of  such  par- 
ticular facts  is,  therefore,  rejected,  (a)    But,  if  the  particular  fact 

1  Moiewood  V.  "Wood,  14  East,  329,  n.,per  Ld.  Kenyon;  1  Stark.  Evid.  30,  31  ; 
Clothier  v.  Chapman,  14  East,  331,  n.  ;  Reed  v.  Jackson,  1  East,  357  ;  Outram  v.  More- 
wood,  5  T.  R.  121,  123  ;  Weeks  v.  Sparke,  1  M.  &  S.  679. 

2  EUicott  V.  Pearl,  10  Peters,  412;  Richards  v.  Bassett,  10  B.  &  C.  657,  662,  663, 
per  Littledale,  J.  ;  supra,  §  130.  The  following  are  cases  of  a  quasi  public  nature  ; 
though  they  are  usually,  but,  on  the  foregoing  principles,  erroneously,  cited  in  favor  of 
the  admissibility  of  evidence  of  reputation  in  cases  of  mere  private  right.  Bishop  of 
Meath  v.  Lord  Belfield,  Bull.  N.  P.  295,  where  the  question  was,  who  presented  the 
former  incumbent  of  a  parish, — a  fact  interesting  to  all  the  parishioners;  Price  v. 
Littlewood,  3  Campb.  288,  where  an  old  entry  in  the  vestry-book,  by  the  church- 
wardens, showing  by  what  persons  certain  parts  of  the  church  were  repaired,  in  consid- 
eration of  their  occupancy  of  pews,  was  admitted,  to  show  title  to  a  ])ew  in  one  under 
whom  the  plaintiff  claimed  ,  Barnes  v.  Mawson,  1  M.  &  S.  77,  which  was  a  question 
of  boundary  between  two  large  districts  of  a  manor  called  the  Old  and  New  Lands  ; 
Anscomb  v.  Shore,  1  Taunt.  261,  where  the  right  of  common  prescribed  for  was  claimed 
by  all  the  inhabitants  of  Hampton ;  Blackett  v.  Lowes,  2  M.  &  S.  494,  500,  where  the 
question  was  as  to  the  general  usage  of  all  the  tenants  of  manor,  the  defendant  being 
one,  to  cut  certain  woods;  Brett  v.  Beales,  1  Mood.  &  Malk.  416,  which  was  a  claim 
of  ancient  tolls  belonging  to  the  corporation  of  Cambridge  ;  White  v.  Lisle,  4  Madd. 
Ch.  214,  224,  225,  where  evidence  of  reputation,  in  regard  to  st.  parochial  modus,  was 
held  admissible,  because  "a  class  or  district  of  persons  who  concerned  ;  "  but  denied 
in  regard  to  a.  farm  modus,  because  none  but  the  occupant  of  the  farm  was  concerned. 
In  Davies  v.  Lewis,  2  Chitty,  535,  the  declarations  offered  in  evidence  were  clearly 
admissible,  as  being  those  of  tenants  in  possession,  stating  under  whom  they  held. 
See  supra,  §  108. 

(a)  Rex  V.  Bliss,  7  A.  &  E.  550. 


CHAP.    VI.]  MATTERS   OF   GENERAL   INTEREST.  203 

is  proved  aliunde,  evidence  of  general  reputation  may  be  received 
to  qualify  and  explain  it.  Thus,  in  a  suit  for  tithes  where  a 
parochial  modus  of  sixpence  per  acre  was  set  up,  it  was  conceded 
that  evidence  of  reputation  of  the  payment  of  that  sum  for  one 
piece  of  land  would  not  be  admissible ;  but  it  was  held,  that  such 
evidence  would  be  admissible  to  the  fact  that  it  had  always  been 
customary  to  pay  that  sum  for  all  the  lands  in  the  parish.  ^  And 
where  the  question  on  the  record  was  whether  a  turnpike  was 
within  the  limits  of  a  certain  town,  evidence  of  general  reputa- 
tion was  admitted  to  show  that  the  bounds  of  the  town  extended 
as  far  as  a  certain  close,  but  not  that  formerly  there  were  houses, 
where  none  then  stood;  the  latter  being  a  particular  fact,  in 
which  the  public  had  no  interest. 2(&)  So,  where,  upon  an  in- 
formation against  the  sheriff  of  the  county  of  Chester,  for  not 
executing  a  death-warrant,  the  question  was  whether  the  sheriff 
of  the  county  or  the  sheriffs  of  the  city  were  to  execute  sentence 
of  death,  traditionary  evidence  that  the  sheriffs  of  the  county 
had  always  been  exempted  from  the  performance  of  that  duty 
was  rejected,  it  being  a  private  question  between  two  individuals ; 
the  public  having  an  interest  only  that  execution  be  done,  and 
not  in  the  person  by  whom  it  was  performed.^  The  question  of 
the  admissibility  of  this  sort  of  evidence  seems,  therefore,  to  turn 
upon  the  nature  of  the  reputed  fact,  whether  it  was  interesting  to 
one  party  only  or  to  many.  If  it  were  of  a  public  or  general 
nature,  it  falls  within  the  exception  we  are  now  considering,  by 
which  hearsay  evidence,  under  the  restrictions  already  mentioned, 
is  admitted.  But  if  it  had  no  connection  with  the  exercise  of 
any  public  right,  nor  the  discharge  of  any  public  duty,  nor  with 
any  other  matter  of  general  interest,  it  falls  within  the  general 
rule  by  which  hearsay  evidence  is  excluded.* 

'  Harwood  v.  Sims,  Wiglitw.  122,  more  fully  reported  and  explained  in  Moseley  v. 
Davies,  11  Price,  162,  169-172  ;  Chatfield  v.  Fryer,  1  Price,  253  ;  Wells  v.  Jesus  Col- 
lege, 7  C.  &  P.  284  ;  Leathes  v.  Newitt,  4  Price,  355. 

^  Ireland  v.  Powell,  Salop.  Spr.  Ass.  1802,  per  Chambre,  J.;  Peake's  Evid.  13,  14 
(Norris's  edit.  p.  27). 

3  Rex  V.  Antrobus,  2  Ad.  &  Kl.  788,  794. 

<  White  V.  Lisle,  4  Madd.  Ch.  214,  224,  225  ;  Bishop  of  Meath  v.  Lord  Relfield,  1 
Wils.  215  ;  Bull.  N.  P.  295  ;  Weeks  v.  Sparke,  1  M.  &  S.  679  ;  Withnell  v.  Gartliam, 
1  Esp.  322  ;  Doe  v.  Thomas,  14  East,  323  ;  Phil.  &  Am.  on  Evid.  258  ;  1  Stark.  Evid. 
34,  35  ;  Outram  v.  Morewood,  5  T.  R.  121,  123  ;  Rex  v.  Eriswell,  3  T.  R.  709,  per 
Grose,  J.  Where  paiticular  knowledge  of  a  fact  is  sought  to  be  brought  home  to  a 
party,  evidence  of  the  general  reputation  and  belief  of  the  existence  of  that  fact,  among 
his  neighbors,  is  admissible  to  the  jury  as  tending  to  show  that  he  also  had  knowledge 
of  it  as  well  as  they.     Brander  v.  Ferriday,  16  La.  296.  (c) 

(b)  It  is  no  ground  of  objection  to  the  shire,  4  El.  &  Bl.  535  ;  s.  c.  29  Eng.  Law 

admissibility  of  such  evidence,  that  mat-  &  Eq.  89. 

ters  of  private  interest  are  also  involved  in  (c)  Not,  however,  unless  it  is  a  matter 

the  public  controversy.     Reg.  v.  Bedford-  of  public  interest.  Notoriety,  for  instance. 


204  LAW   OP   EVIDENCE.  [PART   II. 

§  139.  Documents,  maps,  verdicts.  Hitherto  we  have  men- 
tioned oral  declarations,  as  the  medium  of  proving  traditionary- 
reputation  in  matters  of  public  and  general  interest.  The  prin- 
ciple, however,  upon  which  these  are  admitted  applies  to  docu- 
mentary and  all  other  kinds  of  proof  denominated  hearsay.  If  the 
matter  in  controversy  is  ancient,  and  not  susceptible  of  better 
evidence,  any  proof  in  the  nature  of  traditionary  declarations  is 
receivable,  whether  it  be  oral  or  written ;  subject  to  the  quali- 
fications we  have  stated.  Thus,  deeds,  leases,  and  other  private 
documents,  have  been  admitted  as  declaratory  of  the  public  mat- 
ters recited  in  them.^  Maps,  also,  showing  the  boundaries  of 
towns  and  parishes,  are  admissible,  if  it  appear  that  they  have 
been  made  by  persons  having  adequate  knowledge. ^  (a)  Verdicts, 
also,  are  receivable  evidence  of  reputation,  in  questions  of  public 
or  general  interest. ^  Thus,  for  example,  where  a  public  right  of 
way  was  in  question,  the  plaintiff  was  allowed  to  show  a  verdict 
rendered  in  his  own  favor,  against  a  defendant  in  another  suit,  in 

1  Curzon  v.  Lomax,  5  Esp.  60  ;  Brett  v.  Beales,  1  M.  &  M.  416  ;  Plaxtan  v.  Dare, 
10  B.  &  C.  17  ;  Clarkson  v.  Woodhouse,  5  T.  R.  412,  n.  ;  s.  c.  3  Doug.  189  ;  Barnes 
V.  Mawson,  1  M.  &  S.  77,  78  ;  Coo^nbs  v.  Coether,  1  M.  &  M.  398  ;  Beebe  v.  Parker,  5 
T.  R.  26  ;  Freeman  v.  Phillipps,  4  M.  &  S.  486  ;  Crease  v.  Barrett,  1  Cr.  Mees.  &  Ros. 
923  ;  Demi  v.  Spray,  1  T.  R.  466 ;  Bullen  v.  Michel,  4  Dow,  298 ;  Taylor  v.  Cook,  8 
Price,  650. 

■■'  1  Phil.  Evid.  250,  251  ;  Alcock  v.  Cooke,  2  Moore  &  Payne,  625  ;  s.  c.  5  Bing. 
340  ;  Noyes  v.  Ward,  19  Conn.  250.  Upon  a  question  of  boundary  between  two  farms, 
it  being  proved  that  the  boundary  of  one  of  them  was  identical  with  that  of  a  hamlet, 
evidence  of  reputation,  as  to  the  bounds  of  the  hamlet,  was  held  admissible.  Thomas 
V.  Jenkins,  1  N.  &  P.  588.(6)  But  an  old  map  of  a  parish  produced  from  the  parish 
chest,  and  which  was  made  under  a  private  enclosure  act,  was  held  inadmissible  evi- 
dence of  boundary,  without  proof  of  the  enclosure  act.      Reg.  v.  Milton,  1  C.  &  K.  58. 

3  But  an  interlocutory  decree  for  preserving  the  status  quo,  until  a  final  decision 
upon  the  right  should  be  had,  no  final  decree  ever  having  been  made,  is  inadmissible 
as  evidence  of  reputation.     Pim  v.  Curell,  6  M.  &  W.  234. 

will  not  prove  a  dissolution   of   partner-  between    two    counties ;    its  location  was 

.ship.    Pitchers.  Barrows,  17  Pick.  (Mass.)  allowed  to  be  proved  by  ancient  plans  of 

361  ;  ante,  §  137  ;  post,  vol.  ii.  §  483.  the  adjacent  lands.    And  in  Morris  v.  Cal- 

(a)  So  an  ancient  survey  of  a  manor,  lanan,  105  Mass.  129,  it  was  held  that 
if  it  comes  from  a  proper  custody,  and  has  where  the  boundary  of  private  lands  was 
evidence  of  competent  knowledge  in  the  coincident  with  the  division  line  of  two 
maker,  is  admissible  to  prove  a  right  of  commons,  an  ancient  deed  was  admissible 
common  in  all  the  inhabitants  of  the  to  prove  the  location  of  the  line.  The  Ian- 
manor.  Smith  V.  Earl  Brownlow,  L.  R.  guage  of  the  Court,  in  Syiarhawk  v.  Bul- 
9  Eq.  241  ;  Daniel  v.  Wilkins,  7  Ex.  429;  lard,  1  Mete.  (Mass.)  95,  is  broad  enough 
Beaufort  v.  Smith,  4  Ex.  450.  The  case  of  to  extend  this  principle  to  cases  of  private 
Evans  ?;.  Taylor,  7  A.  &  E.  617,  where  such  boundaries.  Wilde,  J.,  says:  "Recitals 
evidence  was  rejected,  was  criticised  in  all  in  ancient  deeds  are  always  competent 
of  these  cases,  and  must  be  supported  if  evidence,  and  are  presumed  to  be  true  un- 
at  all,  on  the  ground  that  the  declarant  less  the  contrary  can  be  made  to  appear." 
was  not  shown  to  have  been  sufficiently  But  the  statement  is  probably  too  broad, 
qualified.  See  Wilberforce  v.   Hearfield,  L.  R.  5  Ch. 

(b)  So  in  Drury  i;.  Midland  R.  R.  Co.,  Div.  709;  Phillipps  v.  Hudson,  L.  R.  2 
127  Mass.  571,  where  the  boundary  to  be     Ch.  243. 

proved  was  shown  to  be  the  dividing  line 


CHAP.    VI.]  MATTERS   OP   GENERAL    INTEREST.  205 

which  the  same  right  of  way  was  in  issue;  but  Lord  Kenyon  ob- 
served, that  such  evidence  was,  perhaps,  not  entitled  to  much 
weight,  and  certainly  was  not  conclusive.  The  circumstance, 
that  the  verdict  was  post  litem  motam,  does  not  affect  its 
admissibility.'*  (<?) 

§  140.  Against  a  public  right.  It  is  further  to  bc  observed,  that 
reputation  is  evidence  as  well  against  a  public  right  as  in  its  favor. 
Accordingly,  where  the  question  was,  whether  a  landing-place 
was  public  or  private  property,  reputation,  from  the  declaration 
of  ancient  deceased  persons,  that  it  was  the  private  landing- 
place  of  the  party  and  his  ancestors,  was  held  admissible;  the 
learned  judge  remarking,  that  there  was  no  distinction  between 
the  evidence  of  reputation  to  establish  and  to  disparage  a  public 
right.  ^  (a) 

*  Reed  v.  Jackson,  1  East,  355,  357  ;  Bull.  N.  P.  233  ;  City  of  London  v.  Gierke, 
Garth.  181  ;  Khodes  v.  Ainsworth,  1  B.  &  Aid.  87,  89,  per  Holroyd,  J.  ;  Lancuin  v. 
I.ovell,  9  Bine;.  465,  469  ;  Cort  v.  Birkbeck,  1  Doug.  218,  222,  per  Lord  Mansfield  ; 
Case  of  the  Manchester  Mills,  1  Doug.  221,  n.  ;  Berry  v.  Banner,  Peakes's  Cas.  156  ; 
Kiddulph  V.  Ather,  2  Wils.  23  ;  Brisco  v.  Loinax,  3  N.  &  P.  308  ;  Evans  v.  Kees,  2  P. 
&  D.  627  ;  s.  c.  10  Ad.  &  El.  151. 

1  Drinkwater  v.  Porter,  7  C.  &  P.  181  ;  R.  v.  Sutton,  3  N.  &  P.  569. 

(c)  Carnarvon  v.  Villebois,  13  M.  &  W.  (a)  Anglesey  v.  Hathertou,  10  M.  &  W. 

313  ;  Reg.  v.  Brightaide,  13  Q.  B.  933.        218  ;  Portland  V.  Hill,  L.  R.  2  Eq.  765. 


206  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER   VII. 

OF   ANCIENT   POSSESSIONS. 

§  141.  Ancient  possessions  and  documents.  A  second  exception 
to  the  rule,  rejecting  hearsay  evidence,  is  allowed  in  cases  of 
anciefit  possession,  and  in  favor  of  the  admission  of  ancient  docu- 
ments in  support  of  it.  In  matters  of  private  right,  not  affecting 
any  public  or  general  interest,  hearsay  is  generally  inadmissible. 
But  the  admission  of  ancient  documents,  purporting  to  constitute 
part  of  the  transactions  themselves,  to  which,  as  acts  of  ownership, 
or  of  the  exercise  of  right,  the  party  against  whom  they  are  pro- 
duced is  not  privy,  stands  on  a  different  principle.  It  is  true,  on 
the  one  hand,  that  the  documents  in  question  consist  of  evidence 
which  is  not  proved  to  be  part  of  any  res  gestae,  because  the  only 
proof  of  the  transaction  consists  in  the  documents  themselves ;  and 
these  may  have  been  fabricated,  or,  if  genuine,  may  never  have 
been  acted  upon.  And  their  effect,  if  admitted  in  evidence,  is 
to  benefit  persons  connected  in  interest  with  the  original  parties 
to  the  documents,  and  from  whose  custody  they  have  been  pro- 
duced. But,  on  the  other  hand,  such  documents  always  accom- 
pany and  form  a  part  of  every  legal  transfer  of  title  and  possession 
by  act  of  the  parties ;  and  there  is,  also,  some  presumption  against 
their  fabrication,  where  they  refer  to  coexisting  subjects  by  which 
their  truth  might  be  examined.^  (a)  On  this  ground,  therefore, 
as  well  as  because  such  is  generally  the  only  attainable  evidence 
of  ancient  possession,  this  proof  is  admitted,  under  the  qualifica- 
tions which  will  be  stated,  (h) 

§  1 42.  Documents  must  come  from  proper  custody.  As  the  value 
of  these  documents  depends  mainly  on  their  having  been  contem- 
poraneous, at  least,  with  the  act  of  transfer,  if  not  part  of  it,  care 

1  Phil.  Evid.  273  ;  1  Stark.  Evid.  66,  67;  Clarkson  v.  Woodhouse,  5  T.  R.  413,  n., 
per  Lord  Mansfield. 

{a)  An  ancient  docunipnt  is  one  more  admitted  if  it  is  of  that  age  at  the  date 

than  thirty   years  old.     See   n7ite,  §  21.  of  the  trial.     Gardner  v.  Granniss,  57  Ga. 

The  age  of  the  document  at  the  date  of  539. 

the  trial  determines  its  admissibility  ;  so  (J)  See  Stephen,  Digest  of  Evidence, 

a  deed  which  was  not  thirty  years  old  at  art.  88. 
the  time  the  suit  was  instituted  may  be 


CHAP.    VII.]  OP   ANCIENT   POSSESSIONS.  207 

ia  first  taken  to  ascertain  their  genuineness;  and  this  may  be  shown 
prima  facie,  by  proof  that  the  document  comes  from  the  projjer 
custody/,  or  by  otherwise  accounting  for  it.  Documents  found  in 
a  place  in  which,  and  under  the  care  of  persons  with  whom,  such 
papers  might  naturally  and  reasonably  be  expected  to  be  found, 
or  in  the  possession  of  persons  having  an  interest  in  them,  are 
in  precisely  the  custody  which  gives  authenticity  to  documents 
found  within  it.^  (a)  "For  it  is  not  necessary,"  observed  Tindal, 
C.  J.,  "that  they  should  be  found  in  the  best  and  most  proper 
place  of  deposit.  If  documents  continue  in  such  custody,  there 
never  would  be  any  question  as  to  their  authenticity:  but  it  is 
when  documents  are  found  in  other  than  their  proper  place  of 
deposit,  that  the  investigation  commences,  whether  it  is  reason- 
able and  natural,  under  the  circumstances  in  the  particular  case, 
to  expect  that  they  should  have  been  in  the  place  where  they  are 
actually  found ;  for  it  is  obvious,  that,  while  there  can  be  only 
one  place  of  deposit  strictly  and  absolutely  proper,  there  may  be 
many  and  various  that  are  reasonable  and  probable,  though  dif- 
fering in  degree;  some  being  more  so,  some  less;  and,  in  those 

1  Per  Tindal,  C.  J.,  in  Bishop  of  Meath  v.  Marquess  of  Winchester,  3  Bing.  N".  C. 
183,  200,  201,  expounded  and  confirmed  by  Parke,  B.,  in  Croughton  v.  Blake,  12 
M.  &  W.  205,  208  ;  and  in  Doe  d.  Jacobs  v.  Phillips,  10  Jur.  34 ;  8  Q.  B.  158.  See 
also  Lygon  v.  Strutt,  2  Anstr.  601  ;  Swinnerton  v.  Marquis  of  Stattbrd,  3  Taunt.  91 ; 
BuUeu  V.  Michel,  4  Dow,  297  ;  Earl  v.  Lewis,  4  Esp.  1 ;  Randolph  v.  Gordon,  5 
Price,  312  ;  Manby  v.  Curtis,  1  Price,  225,  232,  per  Wood,  B.  ;  Bertie  v.  Beaumont, 

2  Price,  303,  307  ;  Barr  v.  (Jratz,  4  Wheat.  213,  221  ;  Winn  v.  Patterson,  9  Peters, 
663-675  ;  Clarke  v.  Courtney,  5  Peters,  319,  344  ;  Jackson  v.  Laroway,  3  Johns.  Cas. 
283,  approved  in  Jackson  v.  Luquere,  5  Cowen,  221,  225  ;  Hewlett  v.  Cock,  7  Wend. 
371,  374;  Duncan  v.  Beard,  2  Nott  &  McC.  400  ;  Middleton  v.  Mass,  2  Nott  &  McC. 
55 ;  Doe  v.  Beynon,  4  P.  &  D.  193  ;  infra,  §  570  ;  Doe  v.  Pearce,  2  M.  &  Rob.  240  ; 
Tolman  v.  Emerson,  4  Pick.  160.  An  ancient  extent  of  crown  lands,  found  in  the 
office  of  the  land  revenue  records,  it  being  the  proper  repository,  and  purporting  to  have 
been  made  by  the  proper  officer,  has  been  held  good  evidence  of  the  title  of  the  crown 
to  lands  therein  stated  to  have  been  purchased  by  the  crown  from  a  subject.  Doe  d. 
Wm.  IV.  t;.  Roberts,  13  M.  &  W.  520.  Courts  will  be  liberal  in  admitting  deeds, 
where  no  suspicion  arises  as  to  their  authenticity.  Doe  v.  Keeling,  36  Leg.  Obs.  312; 
12  Jur.  433  ;  11  Q.  B.  884.  The  proper  custody  of  an  expired  lease  is  that  of  the 
lessor.  Ibid.,  jier  Wightman,  J.  Whether  a  document  comes  from  the  proper  custody 
is  a  question  for  the  judge  and  not  for  the  jury  to  determine.     Ibid.,  Rees  v.  Walters, 

3  M.  &  W.  527,  531.  The  rule  stated  in  the  text  is  one  of  the  grounds  on  which  we 
insist  on  the  genuineness  of  the  books  of  the  Holy  Scriptures.  They  are  found  in  the 
proper  custody,  or  place,  where  alone  they  ought  to  be  looked  for  ;  namely,  the  church, 
where  they  have  been  kept  from  time  immemorial.  They  have  been  constantly  referred 
to,  as  the  foundation  of  faith,  by  all  the  opjiosiug  sects,  whose  existence  God,  in  his 
wisdom,  has  seen  fit  to  permit ;  whose  jealous  vigilance  would  readily  detect  any 
attempt  to  falsify  the  text,  and  whose  diversity  of  creeds  would  render  any  mutual 
combination  moi'ally  impossible.  The  burden  of  proof  is,  therefore,  on  the  objector, 
to  impeach  the  genuineness  of  these  books  ;  not  on  the  Christian,  to  establish  it.  See 
Greenleaf  on  the  Testimony  of  the  Evangelists,  Prelim.  Obs.  §  9. 

{n)  Stephen,  Digest  of  Evidence,  art.     346.    An  ancient  private  survey  is  not  evi- 
88 ;  Whitman  v.  Heneberry,  73  111.  109  ;     dence.     Daniel  v.  Wilkin,  7  Ex.  429. 
United  States  v.  Castro,  24  How.  (U.  S.) 


208  LAW   OP   EVIDENCE.  [PART   II. 

cases,  the  proposition  to  be  determined  is,  whether  the  actual 
custody  is  so  reasonably  and  probably  accounted  for,  that  it  im- 
presses the  mind  with  the  conviction  that  the  instrument  found 
in  such  custody  must  be  genuine.  That  such  is  the  character 
and  description  of  the  custody  which  is  held  sufficiently  genuine 
to  render  a  document  admissible  appears  from  all  the  cases." 

§  143.  Must  be  shown  to  have  been  acted  on.  It  is  further 
requisite,  where  the  nature  of  the  case  will  admit  it,  that  proof 
be  given  of  some  act  done  in  reference  to  the  documents  offered  in 
evidence,  as  a  further  assurance  of  their  genuineness,  and  of  the 
claiming  of  title  under  them.  If  the  document  bears  date  post 
litem  motam,  however  ancient,  some  evidence  of  correspondent 
acting  is  always  scrupulously  required,  even  in  cases  where  tra- 
ditionary evidence  is  receivable.^  (a)  But  in  other  cases,  where 
the  transaction  is  very  ancient,  so  that  proof  of  contemporaneous 
acting,  such  as  possession,  or  the  like,  is  not  probably  to  be  ob- 
tained, its  production  is  not  required.2(6)  But  where  unexcep- 
tionable evidence  of  enjoyment,  referable  to  the  document,  may 
reasonably  be  expected  to  be  found,  it  must  be  produced.^  If 
such  evidence,  referable  to  the  document,  is  not  to  be  expected, 
still  it  is  requisite  to  prove  some  acts  of  modern  enjoyment,  with 
reference  to  similar  documents,  or  that  modern  possession  or  user 
should  be  shown,  corroborative  of  the  ancient  documents.* 

§  144.  Must  be  part  of  the  transaction.  Under  these  qualifica- 
tions, ancient  documents,  purporting  to  be  apart  of  the  transac- 
tions to  ivhich  they  relate,  and  not  a  mere  narrative  of  them,  are 
receivable  as  evidence  that  those  transactions  actually  occurred. 
And  though  they  are  spoken  of  as  hearsay  evidence  of  ancient 
possession,  and  as  such  are  said  to  be  admitted  in  exception  to 

1  I  Phil.  Evid.  277  ;  Brett  v.  Beales,  1  Mood.  &  M.  416. 

2  Clarkson  v.  Woodhouse,  5  T.  R.  412,  413,  :i.,per  Ld.  Mansfield;  supra,  §  130, 
and  cases  there  cited. 

3  1  Phil.  Evid.  277  ;  Plaxton  v.  Dare,  10  B.  &  C.  17. 

*  Rogers  v.  Allen,  1  Campb.  309,  311  ;  Clarkson  v.  Woodhouse,  5  T.  R.  412,  n. 
See  the  cases  collected  in  note  to  §  144,  infra. 

(a)  United  States  v.  Castro,  24  How.  ancient  documents,  either  with  or  without 

346.    Absence  of  the  support  derived  from  evidence  of  ancient  payment  of  rent,  to  be 

proof  of  some  act  done  goes  rather  to  the  given  as  evidence,  from  which  thejury  may 

weight  than  to  the   admissibility  of  the  properly  draw  an  inference  that  there  was 

document    as    evidence.      Malcomson   v.  such    possession.      For,    in   the   ordinary 

O'Dea,  10  H.  of  L.  614;  Doe  o.  Pulman,  course  of  things,  men  do  not  make  leases 

3  Q.  B.  622.  unless  they  act  on  them,  and  lessees  do  not 

(6)  This  is  upheld  in  the  English  case  in  general  pay  rent  unless  they  are  in  pos- 

of  Bristow   V.    Cormican,    L.   R.    3   App.  session,  so  that   the  ancient  payment  of 

Cas.  641,  where  Blackburn,  J.,  giving  his  rent  adds  weight   to  the  ancient   inden- 

opinion  says  :  "  Inasmuch  as,  after  a  long  ture."     Cf.   Gardner  v.   Granniss,  57  Ga. 

time,  all  the  witnesses  who  could  prove  539  ;   Thursby  v.  Myers,  Id.  155. 
such  possession  are  dead,  the  law  permits 


CHAP.    VII.]  OF   ANCIENT   POSSESSIONS.  209 

the  general  rule ;  yet  they  seem  rather  to  be  parts  of  the  res  gestce, 
and  therefore  admissible  as  original  evidence,  on  the  principle 
already  discussed,  (a)  An  ancient  deed,  by  which  is  meant  one 
more  than  thirty  years  old,  having  nothing  susjjicious  about  it, 
is  presumed  to  be  geimine  without  express  proof,  the  witnesses 
being  presumed  dead ;  and,  if  it  is  found  in  the  proper  custody, 
and  is  corroborated  by  evidence  of  ancient  or  modern  correspond- 
ing enjoyment,^  or  by  other  equivalent  or  explanatory  proof,  it  is 
to  be  presumed  that  the  deed  constituted  part  of  the  actual  trans- 
fer of  property  therein  mentioned ;  because  this  is  the  usual  and 
ordinary  course  of  such  transactions  among  men.  The  residue  of 
the  transaction  may  be  as  unerringly  inferred  from  the  existence 
of  genuine  ancient  documents,  as  the  remainder  of  a  statue  may 
be  made  out  from  an  existing  torso,  or  a  perfect  skeleton  from  the 
fossil  remains  of  a  part. 

^  It  has  been  made  a  question,  whether  the  document  may  he  read  in  evidence,  before 
the  proof  of  possession  or  other  equivalent  corroborative  i)roof  is  otieri'd  ;  but  it  is  now 
stated  that  the  document,  if  otherwise  apparently  genuine,  may  be  first  read  ;  for  the 
question,  whether  there  has  been  a  corresponding  possession,  can  hardly  be  raised  till 
the  court  is  made  acquainted  with  the  tenor  of  the  instrument.  Doe  v.  Passingham, 
2  C.  &  P.  440.  If  the  deed  appears,  on  its  face,  to  have  been  executed  under  an  au- 
thority which  is  matter  of  record,  it  is  not  admissible,  however  ancient  it  may  be,  as 
evidence  of  title  to  land,  without  proof  of  the  authority  under  which  it  was  executed. 
Tolman  v.  Emerson,  4  Pick.  "160.  A  graver  question  has  been,  whether  the  proof  of 
possession  is  indispensable  ;  or  whether  its  absence  may  be  supplieil  by  other  satisfac- 
tory corroborative  evidence.  In  Jackson  d.  Lewis  v.  Laroway,  3  Johns.  Cas.  283,  it  was 
held  by  Kent,  J.,  against  the  opinion  of  the  other  judges,  that  it  was  indispensable,  on 
the  authority  of  Fleta,  lib.  6,  c.  34  ;  Co.  Lit.  6  b ;  Isack  v.  Clarke,  1  Roll.  132  ;  James 
V.  Trollop,  Skin.  239  ;  2  Mod.  322  ;  Forbes  v.  Wale,  1  W.  Bl.  532  ;  and  the  same  doc- 
trine was  again  asserted  by  him,  in  delivering  the  judgment  of  the  court,  in  Jackson  d. 
Burhans  v.  Blanshan,  3  Johns.  292,  298.  See  also  Thompson  v.  Bullock,  1  Bay, 
364  ;  Middleton  v.  Mass,  2  Nott  &  McC.  55  :  Carroll  v.  Norwood,  1  Har.  &  J.  1 74, 
175  ;  Shaller  v.  Brand,  6  Binn.  439  ;  Doe  v.  Phelps,  9  Johns.  169,  171.  But  the 
weight  of  authority  at  present  seems  cleaily  the  other  way ;  and  it  is  now  agreed,  that, 
where  proof  of  possession  cannot  be  had,  the  deed  may  be  read,  if  its  genuineness  is 
satisfactorily  established  by  other  circumstances.  See  Ld.  Rancliffe  v.  Parkins,  6  Dow, 
202,  per  Ld.  Eldon  ;  McKenire  v.  Fraser,  9  Ves.  5 ;  Doe  v.  Passingham,  2  C.  &  P. 
440  ;  Barr  v.  Oratz,  4  Wheat.  213,  221  ;  Jackson  d.  Lewis  v.  Laroway,  3  Johns.  Cas. 
283,  287  ;  Jackson  d.  Hunt  v.  Luquere,  5  Cowen,  221,  225  ;  Jackson  d.  Wilkins  v. 
Lamb,  7  Cowen,  431  ;  Hewlett  v.  Cock,  7  Wend.  371,  373,  374  ;  Willson  v.  Betts, 
4  Denio,  201.  Where  an  ancient  document,  purporting  to  be  an  exemplification,  is 
produced  fiom  the  proper  place  of  deposit,  having  the  usual  slip  of  parchment  to 
which  the  great  seal  is  appended,  but  no  appearance  that  any  seal  was  ever  affixed, 
it  is  still  to  be  presumed  that  the  seal  was  once  there  and  has  been  accidentally  re- 
moved, and  it  may  be  read  in  evidence  as  an  exemplification.  Mayor,  &c.  of  Beverley 
V.  Craven,  2  Moo.  &  R,  140. 

(a)  The  question  how  far  a  book  of  v.  Heffron,  102  Mass.  161,  and  the  con- 
assessment  of  taxes,  made  and  kept  by  the  elusion  arrived  at  that  unless  the  book  is 
assessors  in  the  performance  of  their  offi-  adniiasUAe  nnderthe  ancient docmnent  rule, 
cial  duty,  in  accordance  with  the  require-  it  is  not  admissible  at  all.  Kenerson  v. 
nients  of  statute  is  evidence  of  the  facts  Henry,  101  Mass.  152  ;  Edson  v.  Mun- 
stated  in  it,  in  other  cases  than  those  re-  sell,  10  Allen  (Mass.),  557  ;  Doe  v.  Ark- 
lating  to  the  assessment  or  collection  of  wright,  5  C.  &  P.  575,  2  Ad.  &  El.  182. 
the  tax,  is  discussed  by  Gray,  J.,  in  Com, 
VOL.  I.  —  14 


210  LAW   OF   EVIDENCE.  [PART  II, 

§  145.  Ancient  boundaries.  Under  this  head  may  be  men- 
tioned the  case  of  ancient  boundaries ;  in  proof  of  which,  it  has 
sometimes  been  said  that  traditionary  evidence  is  admissible 
from  the  nature  and  necessity  of  the  case.  But,  if  the  principles 
already  discussed  in  regard  to  the  admission  of  hearsay  are  sound, 
it  will  be  difficult  to  sustain  an  exception  in  favor  of  such  evi- 
dence merely  as  applying  to  boundar}',  where  the  fact  is  particu- 
lar, and  not  of  public  or  general,  interest.  Accordinglv,  though 
evidence  of  reputation  is  received,  in  regard  to  the  boundaries  of 
parishes,  manors,  and  the  like,  which  are  of  public  interest,  and 
generally  of  remote  antiquity,  yet,  by  the  weight  of  authority  and 
upon  better  reason,  such  evidence  is  held  to  be  inadmissible  for 
the  purpose  of  proving  the  boundary  of  a  private  estate,  when  such 
boundary  is  not  identical  with  another  of  a  public  or  quasi  public 
nature.  1     Where  the  question  is  of  such  general  nature,  whether 

1  Ph.  &  Am.  on  Evid.  255,  256  ;  supra,  §  139,  n.  (2)  ;  Thomas  v.  Jenkins,  1  N.  & 
P.  588  ;  Keed  v.  Jackson,  1  East,  355,  357,  per  Ld.  Kenyou  ;  Doe  v.  Thomas,  14  East, 
323 ;  Morewood  v.  Wood,  Id.  327,  n.  ;  Outiam  v.  Morewood,  5  T.  R.  121,  123,  per 
Ld.  Kenyon  ;  Nichols  v.  Parker,  and  Clothier  v.  Chapman,  in  14  East,  331,  n.  ;  Weeks 
V.  Sparke,  1  M.  &  S.  688,  689  ;  Dunraven  v.  Llewellyn,  15  Q.  B.  791,  Exch.  Ch.  ; 
Cherry  v.  Boyd,  Litt.  Sel.  Cas.  8,  9  ;  1  Phil.  Evid.  182  (3d  Lond.  ed.),  cited  and  ap- 
proved  by  Tilghman,  C.  J.,  in  Buchanan  v.  Moore,  10  S.  &  R.  281.  In  the  passage 
thus  cited,  the  learned  author  limits  the  admissibility  of  this  kind  of  evidence  to  ques- 
tions of  a  public  or  general  nature  ;  including  a  right  of  common  by  custom  ;  which  he 
observes,  "  is,  strictly  speaking,  a  private  right ;  but  it  is  a  general  right,  and  therefore, 
so  far  as  regards  the  admissibility  of  this  species  of  evidence,  has  been  considered  as 
public,  because  it  ajfecfs  a  large  number  of  occupiers  tvithin  a  district."  Supra,  §§  128, 
138  ;  Gresley  on  Evid.  220,  221.  And  more  recently,  in  England,  it  has  been  decided, 
upon  full  consideration,  that  traditionary  evidence,  respecting  rights  not  of  a  public 
nature,  is  inadmissible.  Dunraven  v.  Llewellyn,  15  Q.  B.  791.  The  admission  of  tra- 
ditionary evidence,  in  cases  of  boundary,  occurs  more  frequently  in  the  United  States 
than  in  England.  By  far  the  greatest  portion  of  our  territory  was  originally  surveyed 
in  large  masses  or  tracts,  owned  either  by  the  State,  or  by  the  United  States,  or  by  one, 
or  a  company  of  proprietors  ;  under  whose  authority  these  tracts  were  again  surveyed 
and  divided  into  lots  suitable  for  single  farms,  b}'  lines  crossing  the  whole  tract,  and 
serving  as  the  common  boundary  of  very  many  farm-lots  lying  on  each  side  of  it.  So 
that  it  is  hardly  possible,  in  such  cases,  to  prove  the  original  boundaries  of  one  farm, 
without  affecting  the  common  boundary  of  many  ;  and  thus  in  trials  of  this  sort,  the 
question  is  similar,  in  principle,  to  that  of  the  boundaries  of  a  manor,  and  therefore 
traditionary  evidence  is  freely  admitted.  Such  was  the  case  of  Boardman  v.  Eeed, 
6  Peters,  328.  where  the  premises  in  question,  being  a  tract  of  eight  thousand  acres, 
were  part  of  a  large  connection  of  surveys  made  together,  and  containing  between  fifty 
and  one  hundred  thousand  acres  of  land ;  and  it  is  to  such  tracts,  interesting  to  very 
many  persons,  that  the  remarks  of  Mr.  Justice  JI'Lean,  in  that  case  (p.  341),  are  to  \)G 
api)lied.  In  Conn  v.  Penn,  1  Pet.  C.  C.  496,  the  tract  whose  boundaries  were  in  con- 
troversy was  called  the  manor  of  Springetsbury,  and  contained  seventy  thousand  acres, 
in  which  a  great  number  of  individuals  had  severally  become  interested.  In  Doe  d. 
Taylor  v.  Roe,  4  Hawks,  116,  traditionary  evidence  was  admitted  in  regard  to  Earl 
Granville's  line,  which  was  of  many  miles  in  extent,  and  afterwards  constituted  the 
boundary  between  counties,  as  well  as  private  estates.  In  Ealston  v.  Miller,  3  Ran- 
doli)h,  44,  the  question  was  upon  the  boundaries  of  a  street  in  the  city  of  Richmond  ; 
concerning  which  kind  of  boundaries  it  was  said,  that  ancient  reputation  and  posses- 
sion were  entitled  to  infinitely  more  respect,  in  deciding  upon  the  bounda.ries  of  the  lots, 
than  any  experimental  surveys.  In  several  American  cases,  which  have  sometimes  been 
cited  in  favor  of  the  admissibility  of  traditionary  evidence  of  boundary,  even  though  it 


CHAP.   VII.]  OF   ANCIENT   POSSESSIONS.  211 

it  bo  of  boundary  or  of  right  of  common  by  custom,  or  the  like, 
evidence  of  reputation  is  admitted  only  under  the  (|ualifications 

consisted  of  particular  facts,  and  in  cases  of  merely  |irivate  conceiii,  the  evidence  was 
clcaily  admissible  on  other  grounds,  either  as  part  of  the  original  res  gestue,  or  as  the 
declaration  of  a  party  in  possession,  explanatory  of  the  nature  and  extent  of  his  claim. 
In  this  class  may  be  ranked  the  cases  of  Caufrnan  v.  Congiegation  of  Cedar  Spring,  6 
Binn.  59;  Sturgeon  v.  Waugh,  2  Yeates,  476;  Jackson  d.  McDonald  v.  JlcCall,  10  Johns. 
377  ;  Hamilton  v.  Menor,  2  S.  &  R.  70  ;  Higley  v.  Bidwell,  9  Conn.  477  ;  Hall  v.  Gid- 
dings,  2  Harr.  &  Johns.  112  ;  Kedding  v.  McCubbin,  1  Har.  &McHen.  3(38.  In  Wooster 
V.  Butler,  13  Conn.  309,  it  was  said  by  Church,  J.,  that  traditionary  evidence  was  receiv- 
able in  Connecticut,  to  prove  the  boundaries  of  land  between  individual  proprietore. 
But  tliis  dictum  was  not  called  for  in  the  case  ;  for  the  question  was,  whether  tliete  had 
anciently  been  a  highway  over  a  certain  tract  of  upland  ;  which  being  a  subject  of  com- 
mon and  general  interest,  was  clearly  within  the  rule.  It  has,  however,  subsequently 
been  settled  as  a  point  of  local  law  in  that  State,  that  such  evidence  is  admissible  to 
prove  private  boundaries.  Kinney  v.  Farnsworth,  17  Conn.  3,55,  363.  In  Pennsyl- 
vania, reputation  and  hearsay  are  held  entitled  to  respect,  in  a  question  of  boundary, 
where  from  lapse  of  time  there  is  great  difficulty  in  proving  the  existence  of  the  origi- 
nal landmarks.  Nieman  v.  Ward,  1  Watts  &  Serg.  68.  In  Den  d.  Tate  v.  Southard, 
1  Hawks,  45,  the  ([uestion  was,  whether  the  lines  of  the  surrounding  tracts  of  land,  if 
made  for  those  tracts  alone,  and  not  for  the  tract  in  dispute,  might  be  shown  by  repaLu- 
tioii  to  be  the  ^^ known  and  visible  boundaries"  oi  the  latter  tract,  within  the  fair 
meaning  of  those  words  in  the  statute  of  North  Carolina,  of  1791,  c.  15.  It  was  ob- 
jected that  the  boundaries  mentioned  in  the  act  were  those  only  wliieh  had  been  ex- 
pi'essly  recognized  as  the  bounds  of  the  particular  tract  in  question,  by  some  grant  or 
mesne  conveyance  thereof;  but  the  objection  was  overruled.  But  in  a  subsequent  case 
(Den  d.  Sasser  v.  Herring,  3  Dever.  Law  Eep.  340),  the  learned  chief  justice  admits, 
that,  in  that  State,  the  rules  of  the  common  law,  in  questions  of  private  boundary,  have 
been  broken  in  upon.  "  We  have,"  he  remarks,  "in  questions  of  boundary,  given  to 
the  single  declarations  of  a  deceased  individual,  as  to  a  line  or  corner,  the  weight  of 
common  reputation,  and  permitted  such  declarations  to  be  proven  ;  under  the  rule,  tliat, 
in  questions  of  boundary,  hearsay  is  evidence.  Whether  this  is  within  the  s[)irit  and 
reason  of  the  rule,  it  is  now  too  late  to  inquire.  It  is  the  well-established  law  of  this 
State.  And  if  the  propriety  of  the  rule  was  now  res  integra,  perhaps  the  necessity  of 
the  case,  arising  from  the  situation  of  our  country,  and  the  want  of  self-evident  tcnaini 
of  our  lands,  would  require  its  adoption.  For,  although  it  sometimes  leads  to  false- 
hood, it  more  often  tends  to  the  establishment  of  truth.  From  necessity,  we  have,  in 
this  instance,  sacrificed  the  principles  upon  which  the  rules  of  evidence  are  founded."  (a) 

(a)  The  admissibility  of  such  evidence  ists  ;  i.  e.  that  declarations  are  admissible 
rests  either  upon  the  fact  that  it  expresses  if  made  by  persons  deceased,  while  in  pos- 
the  general  reputation  as  to  the  boundary  session  of  land  owned  by  them,  and  in  the 
in  question,  or  that  it  is  the  declaration  'of  act  of  pointing  out  the  boundaries,  and 
a  person  possessing  competent  knowledge  nothing  appears  to  show  an  inteiest  to 
of  the  facts.  The  practice  of  the  various  misrepresent.  Bartlett  v.  Emerson,  7  Gray 
States  in  regard  to  the  admission  of  such  (Mass.),  174;  Long  v.  Colton,  IIG  Mass. 
evidence  varies  considerably.  The  strict-  414.  Tliis  rule,  however,  is  rather  a  mod- 
est rule  is  that  which  obtains  in  Massachu-  ified  form  of  the  rule  as  to  declarations 
setts,  where  it  is  held  that  the  exceptions  qualifying  possession,  which  Mr.  Greenleaf 
to  the  general  rule  excluding  hearsay  evi-  suggests  as  the  true  rule  in  §  109. 
dence,  which  permit  the  introduction  of  In  a  recent  case  in  New  Jersey  (Curtis 
reputation  or  tradition,  or  of  the  declara-  v.  Aaronson,  49  N.  J.  L.  75),  the  strict 
tions  of  persons  deceased,  as  to  matters  of  rule  limiting  evidence  of  geneml  reputation 
public  or  general  interest  or  questions  of  to  cases  involving  public  boundaries,  was 
pedigree,  do  not  extend  to  a  question  of  supported.  The  Court  says:  "The  ad- 
privatc  hoxmdary  in  which  no  considerable  mission  of  such  evidence  of  common  repu- 
number  of  persons  have  a  legal  interest,  tation,  to  prove  ancient  facts  of  a  public 
Boston  Water  Power  Co.  v.  Hanlon,  132  or  quasi  public  nature,  is  a  recognized  ex- 
Mass.  483;  Hall  v.  Mayo,  97  Id.  416;  ception  to  the  rule  excluding  hearsay  evi- 
Green  v.  Chelsea,  24  Pick.  (Mass.)  80.  dence.  In  England,  on  questions  of 
Still,  an  analogous  rule  which  covers  a  por-  ancient  public  boundary,  this  source 
tion  of  the  same  kind  of  declarations  ex-  of  evidence   was   commonly   resorted    to. 


212 


LAW   OP   EVIDENCE. 


[part  IL 


already  stated,  requiring  competent  knowledge  in  the  declarants, 
or  persons  from  whom  the  information  is  derived,  and  that  they 

A  similar  course  has  been  adopted  in  Tennessee.  Beard  v.  Talhot,  1  Cooke,  142.  In 
South  Carolina,  the  declarations  of  a  deceased  surveyor,  who  oiigiually  surveyed  the 
land,  are  admissible,  on  a  question  as  to  its  location.  Speer  v.  Coate,  3  MeCord,  227  ; 
Blythe  v.  Sutherland,  Id.  258.  In  Kentucky,  the  latter  practice  seems  similar  to  that 
in  North  Carolina.  Smith  v.  Nowells,  2  Littell,  159  ;  Smith  v.  Prewit,  2  A.  K.  Marsh. 
155,  158.  lu  New  Hampshire,  the  like  evidence  has  in  one  case  been  held  admissible, 
upon  the  alleged  authority  of  the  rule  of  the  common  law,  in  1  Phil.  Evid.  182  ;  but 
in  the  citation  of  the  passage  by  the  learned  chief  justice,  it  is  plain,  from  the  omission 
of  part  of  the  text,  that  the  restriction  of  the  rule  to  subjects  of  ])ublic  or  general  inter- 
est was  not  under  his  consideration.  Shepherd  v.  Thompson,  4  N.  H.  213,  214.  More 
recently,  however,  it  has  been  decided  in  that  State,  "that  the  declarations  of  deceased 
persons,  who,  from  their  situation,  appear  to  have  had  the  means  of  knowledge  respect- 
ing private  boundaries,  and  who  had  no  interest  to  misrepresent,  may  well  be  admitted 
in  evidence."  Great  Falls  Co.  v.  Worster,  15  N.  H.  412,  437  ;  Smith  v.  Powers,  Id. 
546,  564.  Subject  to  these  exceptions,  the  general  practice  in  this  countiy,  in  the  ad- 
mission of  traditionary  evidence  as  to  boundaries,  seems  to  agree  with  the  doctrine  of 
the  common  law  as  stated  in  the  text.  In  Weems  v.  Disney,  4  Har.  &  McHen.  156, 
the  di'positions  admitted  were  annexed  to  a  return  of  commissioners,  appointed  under 
a  statute  of  Maryland,  "  for  marking  and  bounding  lands,"  and  would  seem,  therefore, 
to  have  been  admissible  as  part  of  tlie  return,  which  expressly  referred  to  them  ;  but 
no  final  decision  was  had  upon  the  point,  the  suit  having  been  compromised.  In 
Buchanan  v.  Moore,  10  S.  &  K.  275,  the  point  was  whether  traditionary  evidence  was 
admissible  while  the  declarant  was  living.  By  the  Roman  law,  traditionary  evidence 
of  common  fame  seems  to  have  been  deemed  admissible,  even  in  matters  of  private 
boundary.     Mascard.  De  Probat.  vol.  i.  p.  391,  Concl.  396. 


Knowledge  of  such  public  matters  was 
supposed  to  rest  in  the  possession  of  the 
public,  because  they  are  interested  therein 
and  in  any  litigation  touching  such  sub- 
ject, the  parties  to  it  had  a  common  resort 
for  ascertaining  the  truth.  And  there  it 
has  not  been  infrequent,  where  private 
lines  in  dispute  were  coincident  with  pub- 
lic or  quasi  public  boundaries,  to  admit 
evidence  of  reputation  in  determining  the 
private  right.  The  rule,  to  the  same  ex- 
tent, has  general  {)revalence  in  the  States 
of  this  country.  1  Greenl.  Ev.  145.  No 
such  exception  to  the  general  rule  has  ever 
been  recognized  in  England,  in  respect  to 
the  determination  of  mere  private  boun- 
daries, for  the  reason  that  such  private  in- 
terests could  not  be  matter  of  knowledge 
with  the  public,  or  of  any  public  interest 
or  concern.  It  has,  therefore,  been  the 
course  of  the  courts  there  to  entirely  ex- 
clude traditional  evidence  in  suits  concern- 
ing private  lines  and  monuments.  Outram 
V.  Morewood,  5  T.  R.  121  ;  Didsbury  v. 
Thomas,  14  East,  323,  and  cases  cited  in 
note  ;  Clothier  v.  Chapman,  14  East,  331  ; 
Uunraven  v.  Llewellyn,  15  Q.  B.  791." 

The  general  American  rule  on  this  point 
is  stated  in  Hunnicutt  v.  Peyton,  102 
U.  S.  333,  as  follows:  "In  questions  of 
private  boundaries,  declarations  of  par- 
ticular facts  as  distingiiislied  from  repu- 
tation, made  by  deceased  persons,  are  not 
admissible  unless  they  were  made  by  per- 


sons who,  it  is  shown,  had  knowledge  of 
that  whereof  they  spoke,  and  who  were 
on  the  land  or  in  possession  of  it  wlien  the 
declarations  were  made,  and  these  declara- 
tions, to  be  evidence,  must  have  been  made 
while  the  declarant  was  pointing  out  or 
marking  the  boundaries,  or  discharging 
some  duties  relating  thereto."  This  rule 
does  not  limit  the  declarations  to  those  of 
persons  having  an  interest  in  the  land,  in 
relation  to  which  the  statement  is  made, 
in  which  case  the  statement  would  be  ei- 
ther an  admission  against  the  interest  of 
the  declarant,  or  a  part  of  the  res  gcstce, 
being  connected  with  the  act  of  ownership, 
and  therefore  admissible  whenever  that  act 
is  relevant  ;  but  the  statement  derives  its 
force  from  the  supposed  know/edge  of  the 
declarant,  who  is  since  deceased,  though 
he  may  have  had  no  interest  in  the  land 
itself.  The  rule  also  admits  declarations 
of  particuhcr  facts,  as  distinguished  from 
reputation.  This  rule  seems  to  be  that 
which  is  followed  in  Texas.  Hurt  v. 
Evans,  49  Tex.  311  ;  Smith  v.  Russell, 
37  Tex.  247.  In  Wood  v.  Willard,  37  Vt. 
386  (in  which  a  thorough  discussion  of 
the  question  is  given  by  the  Court),  the 
rule  is  held  to  be  that  the  declarations  of 
deceased  persons,  who  had  actual  knowl- 
edge as  to  the  location  of  such  boundaries, 
or  who  from  their  connection  with  the 
property  itself,  or  their  situation  and  ex- 
perience in  regard  to  such  boundaries  and 


CHAP.    VII.]  OF    ANCIENT   POSSESSIONS.  213 

be  persons  free  from  particular  and  direct  interest  at  the  time, 
and  are  since  deceased.  ^ 

§  146.  Perambulations.  In  this  connection  may  be  mentioned 
the  subject  of  permnbulatious.  The  writ  de  perambulatione  faci- 
enda  lies  at  common  law,  when  two  lords  are  in  doubt  as  to  the 
limits  of  their  lordships,  villas,  &c.,  and  by  consent  appear  in 
chancery,  and  agree  that  a  perambulation  be  made  between  them. 
Their  consent  being  enrolled  in  chancery,  a  writ  is  directed  to 
the  sheriff  to  make  the  perambulation,  by  the  oaths  of  a  jury  of 
twelve  knights,  and  to  set  up  the  bounds  and  limits,  in  certainty, 
between  the  parties.  ^  {a)  These  proceedings  and  the  return  are 
evidence  against  the  parties  and  all  others  in  privity  with  them, 
on  grounds  hereafter  to  be  considered.  But  the  perambulation 
consists  not  only  of  this  higher  written  evidence,  but  also  of  the 
acts  of  the  persons  making  it,  and  their  assistants,  such  as  mark- 
ing boundaries,  setting  up  monuments,  and  the  like,  including 
their  declarations  respecting  such  acts,  made  during  the  trans- 
actions. Evidence  of  what  these  persons  were  heard  to  say  upon 
such  occasions  is  always  received ;  not,  however,  as  hearsay,  and 
under  any  supposed  exception  in  favor  of  questions  of  ancient 

2  Supra,  §§  128-130,  135-137.  It  is  held  in  New  York,  that  in  ascertaining  facts 
relative  to  the  possession  of  and  title  to  lands,  which  occurred  more  than  a  century 
before  the  time  of  trial,  evidence  is  admissible  which,  in  regard  to  recent  events,  could 
not  be  received;  such  as  histories  of  estaljlished  creilit  as  to  public  transactions  ;  the 
recitals  in  public  records,  statutes,  legislative  journals,  and  ancient  grants  and  char- 
ters ;  judicial  records  ;  ancient  maps,  and  depositions,  and  the  like.  But  it  is  ad- 
mitted that  this  evidence  is  always  to  be  received  with  great  caution,  and  with  due 
allowance  for  its  imperfection,  and  its  capability  of  misleading.  Bogardus  v.  Trinity 
Church,  Kinnev's  Law  Compend.  for  1850,  p.  159. 

1  5  Com.  Dig.  732,  Pleader,  3,  G.  ;  F.  N.  B.  [133]  D.  ;  1  Story  on  Eq.  Jurisp. 
§  611.  See  also  Stat.  13  Geo.  III.  c.  81,  §  14  ;  Stat.  41  Geo.  III.  c.  81,  §  14  ;  Stat.  58 
Geo.  III.  c.  45,  §  16. 

the  surveys  thereof,  had  peculiar  means  of  ble  to  locate  a  boundary  (McCausland  v, 
knowledge,  so  that  it  may  be  fairly  in-  Fleming,  ubi  supra ;  Ross  v.  Rhoads,  15 
ferred  that  they  had  actual  knowledge  of  Pa.  St.  163  :  Pfuny  Pot  Laiuling  v.  Phil- 
the  same  made  at  a  time  when  they  had  adelphia,  16  Id.  79  ;  VVhitehouse  v.  Bick- 
no  interest  to  misrepresent,  and  made  ford,  9  Foster,  471  ;  Adams  v.  Stanyan, 
when  upon  or  in  the  immediate  vicinity  4  Id.  405  ;  Daniel  v.  Wilkin,  12  English 
of  the  boundary  referred  to,  and  pointing  Law  &  Eq.  547  ;  8  Exch.  156)  ;  but  on 
it  out,  are  admissible.  But  in  a  later  case,  strict  principle  they  should  only  be  ad- 
Child  V.  Kingsbury,  46  Vt.  47,  the  rule  n)itted  when  they  relate  to  public  or  gen- 
is  said  to  admit  the  declarations  of  those  eral  rights.  See  nnte,  §  139,  notes, 
deceased  persons  shown  to  have  had  suf-  (a)  The  selectmen  have  no  authority 
ficient  knowledge  and  not  interested  to  to  change  the  boundaries,  or  to  adjudicate 
misrepresent  ;  and  to  this  effect  are  Hale  upon  the  limits  of  towns,  but  only  to 
V.  Rich,  48  Vt.  217;  Hadley  v.  Howe,  46  ascertaiyi  existing  lines,  and  renew  old 
Vt.  142.  The  same  rule  continues  to  marks  and  monuments.  Their  perambu- 
prevail  in  Pennsylvania.  McCausland  v.  lations  are  competent  and  strong  evidence 
Fleming,  63  Pa.  St.  36.  Cf.  Kennedy  v.  of  the  location  of  tiie  lines,  but  they  do 
Labold,  88  Pa.  St.  246.  not  exclude  other  evidence  of  the  location. 

It  is  said  that  on  the  same  extension  of  Com.  v.  Heffron,  102  Ma.ss.  143. 
principle,  ancient  maps,  &c.,  are  admissi- 


214  LAW    OP    EVIDENCE.  [PART   II. 

boundary,  but  as  part  of  the  res  gestcB,  and  explanatory  of  the 
acts  themselves,  done  in  the  course  of  the  ambit,  ^  Indeed,  in  the 
case  of  such  extensive  domains  as  lordships,  they  being  matters 
of  general  interest,  traditionary  evidence  of  common  fame  seems 
also  admissible  on  the  other  grounds  which  have  been  previously 
discussed.  3 

2  Weeks  v.  Spaike,  1  M.  &  S.  687,  per  Ld.  Ellenborough ;  supra,  §  108;  Ellicott 
V.  Fearl,  1  McLean,  211. 

^  Supra,  §§  128-137.  The  vfrit  de  perarnbulatione  facieiida  is  not  known  to  have 
been  adopted  in  pi'actice  in  the  United  States  ;  but  in  several  of  the  States,  reme- 
dies somewhat  similar  in  principle  have  been  provided  by  statutes.  In  some  of  the 
States,  provision  is  only  made  for  a  periodical  perambulation  of  the  boundaries  of 
towns  by  the  selectmen.  LL.  Maine  Kev.  1840,  c.  5  ;  LL.  N.  H.  1842,  c.  37  ;  Mass, 
Rev.  Stats,  c.  1.5  ;  LL.  Conn.  Rev.  1849,  tit.  3,  c.  7  ;  or,  for  a  definite  settlement  of 
controversies  respecting  them,  by  the  public  sur%'eyor,  as  in  New  York,  Kev.  Code, 
pt.  i.  c,  8,  tit.  6.  In  others  the  remedy  is  extended  to  the  boundaries  of  private  es- 
tates. See  Elmer's  Digest,  pp.  98,  99,  S'l.^,  316  ;  New  Jersey  Kev.  St.  1846,  tit.  22,  c. 
12  ;  Virginia,  Rev.  Code,  1819,  vol.  i,  pp.  358,  359.  A  very  complete  summary  remedy, 
in  all  cases  of  disputed  boundary,  is  provided  in  the  statutes  of  Delaware,  Revision  of 
1829,  pp.  80,  81,  tit.  Boundaries,  III.  To  perambulations  made  under  any  of  these 
statutes,  the  principles  stated  in  the  text,  it  is  conceived,  will  apply. 


CHAP.    VIII.]  DECLABATIONS   AGAINST   INTEREST.  215 


CHAPTER  VIII. 

OF  DECLARATIONS   AGAINST   INTEREST. 

§  147.  Declarations  against  interest.  A  third  exception  to  the 
rule,  rejecting  hearsay  evidence,  is  allowed  in  the  case  of  declara- 
tions and  entries  made  hy  persons  since  deceased^  and  against  the 
interest  of  the  persons  making  them,  at  the  time  when  they  were 
made.  We  have  already  seen,^  that  declarations  of  third  per- 
sona, admitted  in  evidence,  are  of  two  classes :  one  of  which  con- 
sists of  written  entries,  made  in  the  course  of  official  duty  or  of 
professional  employment;  where  the  entry  is  one  of  a  number  of 
facts  which  are  ordinarily  and  usually  connected  with  each  other, 
so  that  the  proof  of  one  affords  a  presumption  that  the  others 
have  taken  place;  and,  therefore,  a  fair  and  regular  entry,  such 
as  usually  accompanies  facts  similar  to  those  of  which  it  speaks, 
and  apparently  contemporaneous  with  them,  is  received  as  origi- 
nal presumptive  evidence  of  those  facts.  And,  the  entry  itself 
being  original  evidence,  it  is  of  no  importance,  as  regards  its 
admissibility,  whether  the  person  making  it  be  yet  living  or  dead. 
But  declarations  of  the  other  class,  of  which  we  are  now  to  speak, 
are  secondary  evidence,  and  are  received  only  in  consequence  of 
the  death  of  the  person  making  them.  This  class  embraces  not 
only  entries  in  books,  but  all  other  declarations  or  statements  of 
facts,  whether  verbal  or  in  writing,  and  whether  they  were  made 
at  the  time  of  the  fact  declared  or  at  a  subsequent  day.^  But,  to 
render  them  admissible,  it  must  appear  that  the  declarant  is  de- 
ceased ;  that  he  possessed  competent  knowledge  of  the  facts,  or 
that  it  was  his  duty  to  know  them ;  and  that  the  declarations  were 
at  variance  with  his  interest.  ^  (a)    When  these  circumstances  con- 

*  Supra,  §§  115,  116,  and  cases  there  cited. 

2  Ivat  V.  Finch,  1  Taunt.  141  ;  Doe  v.  Jones,  1  Campb.  367;  Davies  v.  Pierce,  2 
T.  R.  53,  and  HoUowav  v.  Raikes,  there  cited  ;  Doe  v.  Williams,  Cowp.  621  ;  Peace- 
able V.  Watson,  4  Taunt.  16  ;  Stanley  v.  White,  14  East,  332,  341,  per  Txl.  Ellen- 
borough  ;  Haddow  v.  Parry,  3  Taunt.  303  ;  Goss  v.  Watlington,  3  Brod.  &  Bing.  132; 
Strode  V.  Winchester,  1  Dick.  397  ;  Barker  v.  Ray,  2  Russ.  63,  76,  and  cases  in  p.  67, 
n.  ;  Warren  v.  Greenville,  2  Str.  1129  ;  s.  c.  2  Burr.  1071,  1072  ;  Doe  v.  Turford,  3 
B.  &  Ad.  898,  per  Parke.  J.  ;  Harrison  v.  Blades,  3  Campb.  457  ;  Manning  v.  Lech- 
mere,  1  Atk.  453. 

3  Short  V.  Lee,  2  Jac.  &  Walk.  464,  488,  per  Sir  Thomas  Plumer,  M.  R.  ;  Doe  u. 

(a)  Hosford  v.  Rowe,  41  Minn.  247  ;  23  111.  App.  63;  Friberg  v.  Donovan,  23 
Chic.  Burl.  &  Qu.  R.  R.  Co.  v,  Wilson,     111,  App.  62  ;  Percival  v.  Nanson,  21  L.  J. 


216  LAW   OF   EVIDENCE.  [PART  II. 

cur,  the  evidence  is  received,  leaving  its  weight  and  value  to  be 
determined  by  other  considerations. 

§  148.  Ground  of  their  admissibility.  The  ground  upon  which 
this  evidence  is  received,  is  the  extreme  improhability  of  its  false- 
hood. The  regard  which  men  usually  pay  to  their  own  interest 
is  deemed  a  sufficient  security,  both  that  the  declarations  were 
not  made  under  any  mistake  of  fact,  or  want  of  information  on 
the  part  of  the  declarant,  if  he  had  the  requisite  means  of  knowl- 
edge, and  that  the  matter  declared  is  true.  The  apprehension  of 
fraud  in  the  statement  is  rendered  still  more  improbable  from  the 
circumstance,  that  it  is  not  receivable  in  evidence  until  after  the 
death  of  the  declarant;  and  that  it  is  always  competent  for 
the  party  against  whom  such  declarations  are  adduced  to  point 
out  any  sinister  motive  for  making  them.  It  is  true,  that  the 
ordinary  and  highest  tests  of  the  fidelity,  accuracy,  and  com- 
pleteness of  judicial  evidence  are  here  wanting :  but  their  place 
is,  in  some  measure,  supplied  by  the  circumstances  of  the  de- 
clarant; and  the  inconveniences  resulting  from  the  exclusion  of 
evidence,  having  such  guarantees  for  its  accuracy  in  fact,  and  for 
its  freedom  from  fraud,  are  deemed  much  greater,  in  general,  than 
any  which  would  probably  be  experienced  from  its  admission.  ^  {a) 

§  149.  Must  be  against  interest.  In  some  cases,  the  courts 
seem  to  have  admitted  this  evidence,  without  requiring  proof  of 

Rohson,  15  East,  32,  34;  Hicrham  v.  Ridgvvay,  10  East,  109,  per  Ld.  Ellenborough  ; 
Middleton  v.  Melton,  10  B.  &  C.  317,  327,  per  Tarke,  J.  ;  Kegina  v.  Worth,  4  Q.  B. 
137,  per  Ld.  Deniiian  ;  2  Smith's  Lead.  Cas.  193,  n.,  and  cases  there  cited  ;  Spargo 
V.  Brown,  9  B.  &  C.  935.  The  interest  with  whicli  the  declarations  were  at  variance 
must  be  of  a  pecuniary  nature.  Davis  v.  Lloyd,  1  C.  &  K.  276.  The  apprehension  of 
possible  danger  of  a  prosecution  is  not  sufficient.  The  Sussex  Peerage  Case,  11  Clark 
&  Fin.  85.  In  HoUaday  v.  Littlepage,  2  Munf.  316,  the  joint  declarations  of  a  de- 
ceased shipmaster  and  the  living  ow-ner,  that  the  defendant's  passage  money  had  been 
paid  by  the  plaintiff,  were  held  admissible,  as  parts  of  the  res  gcslce,  being  contempo- 
raneous with  the  time  of  sailing.  This  case,  therefore,  is  not  opposed  to  the  others 
cited.  Neither  is  Sherman  v.  Crosby,  11  Johns.  70,  where  a  receipt  of  payment  of  a 
judgment  recovered  by  a  third  person  against  the  defendant  was  held  admissible  in  an 
action  for  the  money  so  paid,  by  the  party  paying  it,  he  having  had  authority  to  ad- 
just the  demand,  and  the  receipt  being  a  documentary  fact  in  the  adjustment ;  though 
the  attorney  who  signed  the  receipt  was  not  produced,  nor  proved  to  be  dead.  In  au- 
diting the  accounts  of  guardians,  administrators,  &c.,  the  course  is,  to  admit  receipts, 
as  prima  facie  sufficient  vouchers.  Shearman  v.  Akins,  4  Pick.  283;  Nicholls  r.  Webb, 
8  Wheat.  326  ;  Welsh  v.  Barrett,  15  Mass.  380  ;  Wilbur  v.  Selden.  6  Cowen,  162  ; 
Farmers'  Bank  v.  Whitehill,  16  S.  &  R.  89,  90  ;  Stokes  v.  Stokes,  6  Martin,  N.  .s.  351. 
1  Phil.  &  Am.  on  Evid.  307,  308  ;  1  Phil.  Evid.  293,  294  ;  Gresley  on  Evid.  221. 

N.  s.  Ex.  1.     Cf.  Stephen,  Digest  of  Evi-  B.  166;  Stephen,  uhi sup.    The  pecuniary 

dence,  art.  28.     A  statement  made  by  a  amount  of  interest  in  the  declarant  is  im- 

declarant  holding  a  limited  interest  in  any  material  of  the  question  of  tlie  admissi- 

property,  and  opposed  to  such  interest,  is  bility  of  the  declaration.    Orrett  j;.  Corser, 

only  admissible  as  against  those  who  claim  21  Beav.  52. 

under  him,  and  not  as  against  the  rever-  (a)  Bird  v.  Hueston,  10  Ohio  St.  418. 

sioner.     Papendick  v.  Bridgwater,  5  E.  & 


CHAP.    VIII.]  DECLARATIONS    AGAINST    INTEREST.  217 

adverse  interest  in  the  declarant;  while  in  others  stress  is  laid  on 
the  fact,  that  such  interest  had  already  apjjearcd,  aliunde,  in  the 
course  of  the  trial.  In  one  case  it  was  argued,  upon  the  authori- 
ties cited,  that  it  was  not  material  that  the  declarant  ever  had 
any  actual  interest,  contrary  to  his  declaration;  but  this  position 
was  not  sustained  by  the  court.  ^  In  many  other  cases,  where  the 
evidence  consisted  of  entries  in  books  of  account  and  the  like, 
they  seem  to  have  been  clearly  admissible  as  entries  made  in  the 
ordinary  course  of  business  or  duty,  or  parts  of  the  res  gestce,  and 
therefore  as  original  and  not  secondary  evidence ;  though  the  fact 
that  they  were  made  against  the  interest  of  the  person  making 
them  was  also  adverted  to.^  But  in  regard  to  declarations  in  gen- 
eral, not  being  entries  or  acts  of  the  last-mentioned  character, 
and  which  are  admissible  only  on  the  ground  of  having  been 
made  contrary  to  the  interest  of  the  declarant,  the  weight  of 
authority,  as  well  as  the  principle  of  the  exception  we  are  con- 
sidering, seem  plainly  to  require  that  such  adverse  interest  should 
appear,  either  in  the  nature  of  the  case  or  from  extraneous  proof.  ^ 
And  it  seems  not  to  be  sufficient,  that,  in  one  or  more  points  of 
view,  a  declaration  may  be  against  interest,  if  it  appears,  upon 
the  whole,  that  the  interest  of  the  declarant  would  be  rather  pro- 
moted than  impaired  by  the  declaration.* 

§  150.  Entries  in  books  of  account.  Though  the  exception  we 
are  now  considering  is,  as  we  have  just  seen,  extended  to  declara- 
tions of  any  kind,  yet  it  is  much  more  frequently  exemplified  in 
documentary  evidence,  and  particularly  in  entries  in  books  of 
account.  Where  these  are  books  of  collectors  of  taxes,  stewards, 
bailiffs,  or  receivers,  subject  to  the  inspection  of  others,  and  in 

1  Barker  r.  Ray,  2  Russ.  63,  67,  68,  cases  cited  in  note ;  M.  p.  76.  Upon  this  point 
Ekion,  Lord  Chancellor,  said  :  "  The  cases  satisfy  mo,  that  evidence  is  admissible 
of  declarations  made  by  persons  who  have  a  competent  knowledge  of  the  subject  to 
which  such  declarations  refer,  and  where  their  interest  is  concerned  ;  and  the  only 
doubt  I  have  entertained  was  as  to  the  position  that  you  are  to  receive  evidence  of 
declarations  where  there  is  no  interest.  At  a  certain  period  of  my  professional  life,  I 
should  have  said  that  this  doctrine  was  quite  new  to  me.  I  do  not  n)ean  to  say  more 
than  that  I  still  doubt  concerning  it.  When  I  have  occasion  to  express  my  opinion 
judicially  upon  it,  I  will  do  so  ;  but  I  desire  not  to  be  considered  as  bound  by  that, 
as  a  rule  of  evidence."  The  objection  arising  from  the  rejection  of  such  evidence  in 
the  case  was  disposed  of  in  another  manner. 

2  It  has  been  questioned,  whether  there  is  any  difference  in  the  principle  of  admissi- 
bility between  a  written  entry  and  an  oral  declaration  of  an  agent  concerning  his  hav- 
ing received  money  for  his  "principal.  See  supra,  §  113,  n.  ;  Fursdon  v.  Clogg,  10 
M'.  &  W.  572  ;  infra,  §  152,  n. 

8  Higham  v.  Ridgway,  10  East,  109  ;  Warren  v.  Greenville,  2  Str.  1129,  exponnded 
by  Lord  Mansfield,  in  2  Burr.  1071,  1072  ;  Gleadow  v.  Atkin,  3  Tyrwh.  302,  303  ;  1 
C.  k  M.  423,  424  ;  Short  v.  Lee,  2  Jac;.  &  W.  489  ;  Marks  i;.  Lahee.  3  Bing.  N.  C. 
408,  420,  per  Parke,  J.  ;  Barker  v.  Kay,  2  Russ.  63,  76  ;  supra,  §  147,  and  cases  in 
notes. 

*  Phil.  &  Am,  on  Evid.  320  ;  1  Phil.  Evid.  305,  306  ;  Short  v.  Lee,  2  Jac.  &  W.  464. 


218  LAW    OF    EVIDENCE.  [PART   II. 

which  the  first  entry  is  generally  of  money  received,  charging 
the  party  making  it,  they  are,  doubtless,  within  the  principle  of 
the  exception.  1(a)  But  it  has  been  extended  still  farther,  to 
include  entries  in  private  books  also,  though  retained  within  the 
custody  of  their  owners :  their  liability  to  be  produced  on  notice, 
in  trials,  being  deemed  sufficient  security  against  fraud;  and  the 
entry  not  being  admissible,  unless  it  charges  the  parti/  making  it 
with  the  receipt  of  money  on  account  of  a  third  person,  or  acknowl- 
edges the  payment  of  money  due  to  himself;  in  either  of  which 
cases  it  would  be  evidence  against  him,  and  therefore  is  consid- 
ered as  sufficiently  against  his  interest  to  bring  it  within  this 
exception.^  The  entry  of  a  mere  memorandum  of  an  agreement  is 
not  sufficient.  Thus,  where  the  settlement  of  a  pauper  was  at- 
tempted to  be  proved  by  showing  a  contract  of  hiring  and  service, 
the  books  of  his  deceased  master,  containing  minutes  of  his  con- 
tracts with  his  servants,  entered  at  the  time  of  contracting  with 
them,  and  of  subsequent  payments  of  their  wages,  were  held  in- 
admissible ;  for  the  entries  were  not  made  against  the  writer's 
interest,  for  he  would  not  be  liable  unless  the  service  were  per- 
formed, nor  were  they  made  in  the  course  of  his  duty  or  em- 
ployment.^ 

§  151.  Admissible,  though  the  entry  itself  is  the  only  evidence  of 
the  charge.  Where  the  entry  is  itself  the  only  evidence  of  the  charge, 
of  which  it  shows  the  subsequent  liquidation,  its  admission  has 

1  Barry  v.  Bebbington,  4  T.  R.  514  ;  Goss  v.  Watlington,  3  Brod.  &  Bing.  132  ; 
Middleton  v.  Melton,  10  B.  &  C.  317  ;  Stead  v.  Heaton,  4  T.  R.  669  ;  Short  v.  Lee, 
2  Jac.  &  W.  464  ;  Whituash  v.  George,  8  B.  &  C.  5i>Q  ;  Dean,  &c.  of  Ely  v.  Caldecott, 
7  Bing.  433  ;  Marks  v.  Laliee,  3  Bing.  N.  C.  408 ;  Wynne  v.  Tyrwhitt,  4  B.  &  Aid. 
376  ;  De  Rutzen  v.  Farr,  4  Ad.  &  El.  53  ;  2  Smith's  Lead  Gas.  193,  n.  ;  Plaxton  v. 
Dare,  10  B.  &  C.  17,  19  ;  Doe  v.  Cartwright,  Ry.  &  M.  62.  An  entry  by  a  steward  in 
his  books,  in  his  own  favor,  unconnected  with  other  entries  against  him,  is  held  not 
admissible  to  prove  the  facts  stated  in  such  entry.  Knight  v.  Marquess  of  Waterford,  4 
Y.  &  C.  284.  But  where  the  entry  goes  to  show  a  general  balance  in  his  own  favor,  it 
has  been  ruled  not  to  affect  the  admissibility  of  a  particular  entry  charging  himself. 
Williams  v.  Geaves,  8  0.  &  P.  592.  (b)  And  see  Musgrave  v.  Emerson,  16  Law  Jour. 
Q.  B.  174. 

2  Warren  v.  Greenville,  2  Str.  1029;  s.  c.  2  Burr,  1071,  1072;  Higham  v.  Ridg- 
way,  10  East,  109;  Middleton  v.  Melton,  10  B.  &.  C.  317.  Intliose  States  of  the  Union 
in  which  the  original  entries  of  the  party,  in  his  own  account-books,  may  be  evidence 
for  him,  and  where,  therefore,  a  false  entry  may  sometimes  amount  to  the  crime  of 
forgery,  there  is  much  stronger  reason  for  admitting  the  entries  in  evidence  against  third 
persons.     See  also  Hoare  v.  Coryton,  4  Taunt.  560. 

3  Regina  v.  Worth,  4  Q.  B.  132. 

(a)  An  ancient  book  kept   among  the  order  in  fnvor  of  the  collector  for  a  dis- 

records  of  a  town,  purporting  to  be  the  "  Se-  count  of  a  particular  individual's  taxes  was 

lectmen's  book  of  accounts  with  the  treas-  held  to  be  evidence  of  the  .nbatement  of  the 

ury  of  the  town,"  is  admissible  in  evidence  tax  of  such  individual.     Boston  v.  Wey- 

of  the  facts  therein  stated  ;  and,  the  se-  mouth,  4  Gush.  (Mass.)  538. 
lectmen  being  at  the  same  time  assessors,  (6)  Eowe  v.  Brenton,  3  M.  &  R.  268. 

an  entry  in  such  book  of  a  credit  by  an 


CHAP.    VIII.]  DECLARATIONS   AGAINST   INTEREST.  219 

been  strongly  opposed,  on  the  ground,  that,  taken  together,  it  is 
no  longer  a  declaration  of  the  party  against  his  interest,  and  may 
be  a  declaration  ultimately  in  his  own  favor.  This  point  was 
raised  in  tne  cases  of  Higham  v.  Ridyway^  where  an  entry  was 
simply  marked  as  paid  in  the  margin ;  and  of  Rowe  v.  Brenton, 
which  was  a  debtor  and  creditor  account,  in  a  toller's  books,  of 
the  money  received  for  tolls,  and  paid  over.  But  in  neither  of 
these  cases  was  the  objection  sustained.  In  the  former,  indeed, 
there  was  evidence  aliunde,  that  the  service  charged  had  been 
performed;  but  Lord  Ellenborough,  though  he  afterwards  ad- 
verted to  this  fact,  as  a  corroborating  circumstance,  first  laid 
down  the  general  doctrine  that  "  the  evidence  was  properly  ad- 
mitted, upon  the  broad  principle  on  which  receivers'  books  have 
been  admitted. "  But  in  the  latter  case  there  was  no  such  proof ; 
and  Lord  Tenterden  observed,  that  almost  all  the  accounts  which 
were  produced  were  accounts  on  both  sides,  and  that  the  objec- 
tion would  go  to  the  very  root  of  that  sort  of  evidence.  Upon 
these  authorities,  the  admissibility  of  such  entries  may  perhaps 
be  considered  as  established.^  And  it  is  observable,  in  corrobo- 
ration of  their  admissibility,  that  in  most,  if  not  all,  of  the  cases, 
they  appear  to  have  been  made  in  the  ordinary  course  of  business 
or  of  dut}'-,  and  therefore  were  parts  of  the  res  gestce."^ [a) 

§  152.  Matters  not  against  interest.  It  has  also  been  ques- 
tioned, whether  the  entry  is  to  be  received  in  evidence  of  matters 

1  Higham  v.  Ridgway,  10  East,  109  ;  Rowe  v.  Brenton,  3  Man.  &  R.  267  ;  2 
Smith's  Lead.  Cas.  196,  n.  In  Williams  v.  Geaves,  8  C.  &  P.  692,  the  entries  in  a 
deceased  steward's  account  were  admitted,  though  the  balance  of  the  account  was  in 
his  favor.  See  also  Doe  v.  Tyler,  4  M.  &  P.  377  ;  there  cited.  Doe  v.  Wittcomb,  15 
Jur.  778 ; 

2  In  Doe  V.  Vowles,  1  Moo.  &  R.  261,  the  evidence  offered  was  merely  a  tradesman's 
till,  receipted  in  full ;  which  was  properly  rejected  by  Littledale,  J.,  as  it  had  not  the 
merit  of  an  original  entry :  for,  though  the  receipt  of  payment  was  against  the  party's 
interest,  yet  the  main  fact  to  be  established  was  the  performance  of  the  services  charged 
in  the  bill,  the  appearance  of  which  denoted  that  better  evidence  existed,  in  the  orig- 
inal entry  in  the  tradesman's  book.  The  same  objection,  indeed,  was  taken  here,  by 
the  learned  counsel  for  the  defendant,  as  in  the  cases  of  Higham  v.  Ilidgway,  and  of 
Rowe  V.  Brenton  ;  namely,  that  the  proof,  as  to  interest,  was  on  both  sides, 'and  neu- 
tralized itself  :  but  the  objection  was  not  particularly  noticed  by  Littledale,  J.,  before 
whom  it  was  tried  ;  though  the  same  learned  judge  afterward  intimated  his  opinion,  by 
observing,  in  reply  to  an  objection  similar  in  principle,  in  Rowe  v.  Brenton,  that  "a 
man  is  not  likely  to  charge  himself,  for  the  purpose  of  getting  a  discharge." 

(«)  The  rule  seems  now  settled  that  a  Reg.  v.  Heyford,  note  to  Higham  v.  Ridg- 

declaration  may  be  against  the  pecuniary  way,     2    Smith's     L.    C.    333,     7th    ed. 

interest  of  the  person  who  makes  it,  if  part  Stephen,  Digest  of  Evidence,  art  28.     In 

of  it  charges  him  with  a  liability,  though  Doe    v.    Burton,    9    C.    &  P.    254,    Mr. 

other  parts  of  the  book   or  document  in  Baron  Gurney  seems  to  have  followed  Doe 

which  it  occurs  may  discharge  him  from  v.  Vowles,  1  M.  &  Rob.  261,  but  neither 

such  liability  in  whole   or  in   part,   and  would  probably  be  followed  now  in  Eng- 

though  there  may  be  no  proof  other  than  land.     Taylor,  Evidence,  §  610.     See  also 

the  statement  itself  either  of  such  liability  infra,  §  152. 
or  of  its  discharge  in  whole  or  iu  part. 


220  LAW    OF   EVIDENCE.  [PART   II. 

which,  though  forming  part  of  the  declaration,  were  not  in  them- 
selves against  the  interest  of  the  declarant.  This  objection  goes  not 
only  to  collateral  and  independent  facts,  but  to  the  class  of  en- 
tries mentioned  in  the  preceding  section;  and  would  seem  to  be 
overruled  by  those  decisions.  But  the  point  was  solemnly  argued 
in  a  later  case,  where  it  was  adjudged  that  though,  if  the  point 
were  now  for  the  first  time  to  be  decided,  it  would  seem  more 
reasonable  to  hold  that  the  memorandum  of  a  receipt  of  payment 
was  admissible  only  to  the  extent  of  proving  that  a  payment  had 
been  made,  and  the  account  on  which  it  had  been  made,  giving  it 
the  effect  only  of  verbal  proof  of  the  same  payment ;  yet,  that  the 
authorities  had  gone  beyond  that  limit,  and  the  entry  of  a  pay- 
ment against  the  interest  of  the  party  making  it  had  been  held 
to  have  the  effect  of  proving  the  truth  of  other  statements 
contained  in  the  same  entry,  and  connected  with  it.  (a)  Accord- 
ingly, in  that  case,  where  three  persons  made  a  joint  and  several 
promissory  note,  and  a  partial  payment  was  made  by  one  which 
was  indorsed  upon  the  note  in  these  terms,  "  Received  of  W.  D. 
the  sum  of  £280,  on  account  of  the  within  note,  the  £300" 
(which  was  the  amount  of  the  note)  "  having  been  originally 
advanced  to  E.  -Si,"  for  which  payment  an  action  was  brought 
by  the  party  paying,  as  surety,  against  E.  H.,  as  the  principal 
debtor ;  it  was  held,  upon  the  authority  of  Higham  v.  Ridgtvay,  and 
of  Doe  V.  Robson,  that  the  indorsement,  the  creditor  being  dead, 
was  admissible  in  evidence  of  the  whole  statement  contained  in 
it;  and,  consequently,  that  it  was  prima  facie  proof,  not  only  of 
the  payment  of  the  money,  but  of  the  person  who  was  the  prin- 
cipal debtor,  for  whose  account  it  was  paid ;  leaving  its  effect  to 
be  determined  by  the  jury.^ 

1  Davies  v.  Humphreys,  6  M.  &  W.  153,  166.  See  also  Stead  v.  Heaton,  4  T.  K. 
669  ;  Koe  v.  Ravviings,  7  East,  279  ;  Marks  v.  Lahee,  3  Bing.  N.  C.  408.  The  case  of 
Chambers  v.  Bernasconi,  1  Cr.  &  Jer.  451,  1  Ti'rwh.  335,  which  may  seem  opposed  to 
these  decisions,  turned  on  a  different  principle.  That  case  involved  the  eff'ect  of  an 
under-sherifTs  return,  and  the  extent  of  the  circumstances  which  the  sheriff's  return 
ought  to  include,  and  as  to  which  it  would  be  conclusive  evidence.  It  seems  to  have 
been  considered,  that  the  return  could  properly  narrate  only  those  things  which  it  was 
the  officer's  duty  to  do ;  and,  therefore,  though  evidence  of  the  fact  of  the  arrest,  it  was 
held  to  be  no  evidence  of  the  place  where  the  arrest  was  made,  though  this  was  stated 
in  the  return.  The  learned  counsel  also  endeavored  to  maintain  the  admissibility  of 
the  under-sheriff"s  return,  in  proof  of  the  place  of  arrest,  as  a  written  declaration  by  a 
deceased  person  of  a  fact  against  his  interest ;  but  the  court  held,  that  it  did  not  belong 
to  that  class  of  cases.  1  Tyrwh.  333,  per  Bayley,  B.  Afterwards,  this  judgment  was 
affirmed  in  the  Exchequer  Chamber,  4  Tyrwh.  531  ;  1  Cr.  M.  &  E.  347,  368 ;  the  court 
being  "all  of  opinion,  that  whatever  eff'ect  may  be  due  to  an  entry,  made  in  the  course 
of  any  office,  reporting  facts  necessary  to  the  performance  of  a  duty,  the  statement  of 
other  circumstances,  however  naturally  they  may  be  thought  to  find  a  place  in  the  uar- 

(a)  But  statements  not  referred  to  in  or  made  at  the  same  time  or  recorded  in  the 
necessary  to  explain  such  declarations,  are  same  jilace.  Livingston  v.  Arnoux,  56  N. 
not  admissible  merely  because  they  were     Y,  507. 


CHAP.    VIII.]  DECLARATIONS    AGAINST    INTEREST.  221 

§  153.  Competency  of  declarant.  In  order  to  render  dedara- 
tions  against  interest  admissible,  it  is  not  necessary  that  the  declar- 
ant should  have  been  competent,  if  living,  to  testify  to  the  facts 
contained  in  the  declaration ;  the  evidence  being  admitted  on  the 
broad  ground,  that  the  declaration  was  against  the  interest  of 
the  party  making  it,  in  the  nature  of  a  confession,  and,  on  that 
account,  so  probably  true  as  to  justify  its  reception,  ^  For  the 
same  reason,  it  does  not  seem  necessary  that  the  fact  should  have 
been  stated  on  the  personal  knowledge  of  the  declarant. ^  Neither 
is  it  material  whether  the  same  fact  is  or  is  not  provable  by  other 
witnesses  who  are  still  living. ^  Whether  their  testimony,  if  pro- 
duced, might  be  more  satisfactory,  or  its  non-production,  if  attain- 
able, might  go  to  diminish  the  weight  of  the  declarations,  are 
considerations  for  the  jury,  and  do  not  affect  the  rule  of  law. 

§  151.  Entries  by  agents,  stewards,  &c.  But  where  the  evi- 
dence consists  of  entries  made  by  persons  acting  for  others,  in 
the  capacity  of  agents,  steivards,  or  receivers,  some  proof  of  such 
agency  is  generally  required  previous  to  their  admission.  The 
handwriting,  after  thirty  years,  need  not  be  proved. ^  (a)  In  re- 
gard to  the  proof  of  official  character,  a  distinction  has  been 
taken  between  public  and  private  offices,  to  the  effect  that,  where 
the  office  is  public  and  must  exist,  it  may  always  be  presumed 
that  a  person  who  acts  in  it  has  been  regularly  appointed;  but 
that,  where  it  is  merely  private,  some  preliminary  evidence  must 
be  adduced  of  the  existence  of  the  office,  and  of  the  appointment 
of  the  agent  or  incumbent. ^  Where  the  entry,  by  an  agent, 
charges  himself  in  the  first  instance,  that  fact  has  been  deemed 
sufficient  proof  of  his  agency ;  ^  but  where  it  was  made  by  one 
styling  himself  clerk  to  a  steward,  that  alone  was  considered  not 

rative,  is  no  proof  of  those  circumstances."  See  also  Thompson  v.  Stevens,  2  Nott  & 
McC.  493  ;  Sherman  v.  Crosby,  11  Johns.  70.  Whether  a  verbal  declaration  of  a  de- 
ceased agent  or  otiicer,  made  while  he  was  paying  over  mone}'^  to  his  principal  or  supe- 
rior, and  designating  the  person  from  whom  he  received  a  particular  sum  entered  by 
him  in  his  books,  is  admissible  in  evidence  against  that  person,  quccre  ;  and  see  Furs- 
don  V.  Clogg,  10  M.  &  W.  572.  The  true  distinction,  more  recently  taken,  is  this,  — 
that  where  the  entry  is  admitted  as  being  against  the  interest  of  the  party  making  it, 
it  carries  with  it  the  whole  statement ;  but  that,  where  it  was  made  merely  in  the 
course  of  a  man's  duty,  it  does  not  go  beyond  the  matters  which  it  was  his  duty  to 
enter.     Percival  v.  Nanson,  7  Eng.  Law  &  Eq.  53S,  per  Pollock,  C.  B. ;  s.  c.  7  Exch.  1. 

1  Doe  V.  Robson,  15  East,  32  ;  Short  v.  Lee,  2  Jac.  &  W.  464,  489  ;  Gleadow  v. 
Atkin,!  Cr.  &  M.  410;  Middleton  v.  Melton,  10  B.  &  C.  317,  326;  Bosworth  v. 
Crotchet,  Pli.  &  Am.  on  Evid.  348,  n. 

2  Crease  v.  Barrett,  1  Cr.  M.  &  R.  919. 

8  Middleton  v.  Melton,  10  B.  &  C.  327,  per  Parke,  J.  ;  Barry  v.  Bebliington,  4  T. 
K.  514.  1  Wynne  v.  Tyrwhitt,  4  B.  &  Aid.  376, 

2  Short  V.  Lee,  2  Jac.  &  W,  464,  468.       »  Doe  v.  Stacey,  6  C.  &  P.  139. 

(rt)  Though  not  in  the  declarant's  hand-  or  adopted  by  him  ;  otherwise  not.  Baron 
writing,  they  are  admissible  if  authorized    de  Rutzen  i;.  Farr,  4  A.  &  E.  53. 


222  LAW   OP   EVIDENCE.  [PART   II. 

sufficient  to  prove  the  receipt,  by  either  of  them,  of  the  money 
therein  mentioned.^  Yet,  where  ancient  books  contain  stronar 
internal  evidence  of  their  actually  being  receivers'  or  agents' 
books,  they  may,  on  that  ground  alone,  be  submitted  to  the  jury.^ 
Upon  the  general  question,  how  far  mere  antiquity  in  the  entry 
,  will  avail  as  preliminary  proof  of  the  character  of  the  declarant 
or  party  making  the  entry,  and  how  far  the  circumstances  which 
are  necessary  to  make  a  document  evidence  must  be  proved 
aliunde,  and  cannot  be  gathered  from  the  document  itself,  the 
law  does  not  seem  perfectly  settled.^  But  where  the  transaction 
is  ancient,  and  the  document  charging  the  party  with  the  receipt 
of  money  is  apparently  genuine  and  fair,  and  comes  from  the 
proper  repository,  it  seems  admissible,  upon  the  general  prin- 
ciples already  discussed  in  treating  of  this  exception. '^(6) 

§  155.  Books  of  deceased  rector.  There  is  another  class  of 
entries  admissible  in  evidence  which  sometimes  has  been  re- 
garded as  anomalous,  and  at  others  has  been  deemed  to  fall 
within  the  principle  of  the  present  exception  to  the  general  rule ; 
namely,  the  private  books  of  a  deceased  rector  or  vicar,  or  of  an 
ecclesiastical  corporation  aggregate,  containing  entries  of  the 
receipt  of  ecclesiastical  dues,  when  admitted  in  favor  of  their 
successors,  or  of  parties  claiming  the  same  under  the  interest  as 
the  maker  of  the  entries.  Sir  Thomas  Plumer,  in  a  case  before 
him,i  said:  "It  is  admitted,  that  the  entries  of  a  rector  or  vicar 
are  evidence  for  or  against  his  successors.  It  is  too  late  to  argue 
upon  that  rule,  or  upon  what  gave  rise  to  it ;  whether  it  was  the 
cursus  Scaccarii,  the  protection  of  the  clergy,   or  the  peculiar 

*  De  Rutzen  v.  Farr,  4  Ad.  &  El.  53.     And  see  Doe  v.  Wittcomb,  15  Jur.  778. 

6  Doe  V.  Lord  Geo.  Thynne,  10  East,  206,  210. 

®  In  one  case,  where  the  point  at  issue  was  the  existence  of  a  custom  for  the  exclu- 
sion of  foreign  cordwainers  from  a  certain  town,  an  entry  in  the  corporation  books, 
signed  by  one  acknowledging  himself  not  a  freeman,  or  free  of  the  corporation,  and 
promising  to  pay  a  iine  assessed  on  him  for  breach  of  the  custom  ;  and  another  entry, 
signed  by  two  others,  stating  that  they  had  distrained  and  appraised  nine  pairs  of  shoes 
from  another  person,  for  a  similar  offence,  —  were  severally  held  inadmissible,  without 
previously  offering  some  evidence  to  show  by  whom  the  entries  were  subscribed,  and  in 
what  situation  the  several  parties  actually  stood  ;  although  the  latest  of  the  entries  was 
more  than  a  hundred  years  old.  Davies  v.  Morgan,  1  Cr.  &  Jer.  587,  590,  593,  per 
Ld.  Lyndhurst,  C.  B.  In  another  case,  which  was  a  bill  for  tithes,  against  which  a 
modus  was  alleged  in  defence,  a  receipt  of  more  than  fifty  years  old  was  offered,  to 
prove  a  money  payment  therein  mentioned  to  have  been  received  for  a  prescrijition  rent 
in  lieu  of  tithes ;  but  it  was  held  inadmissible,  without  also  showing  who  tlie  parties 
were,  and  in  what  character  they  stood.  Manby  v.  Curtis,  1  Price,  225  per  Thompson, 
C.  B.,  Graham,  B.,  and  Richards,  B.  ;  Wood,  B.,  disscntiente. 

■^  See  Phil.  &  Am.  on  Evid.  331,  n.  (2)  ;  1  Phil.  Evid.  316,  n.  (6),  and  cases  there 
cited  ;  Fenwick.v.  Read,  6  Madd.  8,  per  Sir  J.  Leach,  Vice-Ch.  ;  Bertie  v.  Beaumont, 
2  Price,  307  ;  Bishop  of  Meath  v.  Marquess  of  Winchester,  3  Bing.  N.  C.  183,  203. 

1  Short  V.  Lee,  2  Jac.  &  W.  477,  478. 

(6)  Doe  V.  Michael,  24  Eng.  L.  &  Eq.  180  ;   16  Q.  B.  320. 


CHAP.    VIII.]  DECLARATIONS    AGAINST   INTEREST.  223 

nature  of  property  in  tithes.  It  is  now  the  settled  law  of  the 
land.  It  is  not  to  he  presumed  that  a  person,  having  a  temporary 
interest  only,  will  insert  a  falsehood  in  his  hook  from  which  he  can 
derive  no  advantage.  Lord  Kenyon  has  said,  that  the  rule  is  an 
exception ;  and  it  is  so :  for  no  other  proprietor  can  make  evi- 
dence for  those  who  claim  under  him,  or  for  those  who  claim  in 
the  same  right  and  stand  in  the  same  predicament.  But  it  has 
been  the  settled  law,  as  to  tithes,  as  far  back  as  our  research  can 
reach.  We  must,  therefore,  set  out  from  this  as  a  datum  ;  and 
we  must  not  make  comparisons  between  this  and  other  corpora- 
tions. No  corporation  sole,  except  a  rector  or  vicar,  can  make 
evidence  for  his  successor."  But  the  strong  presumption  that  a 
person,  having  a  temporary  interest  only,  will  not  insert  in  his 
books  a  falsehood,  from  which  he  can  derive  no  advantage,  which 
evidently  and  justly  had  so  much  weight  in  the  mind  of  that 
learned  judge,  would  seem  to  bring  these  books  within  the  prin- 
ciple on  which  entries  made,  either  in  the  course  of  duty  or 
against  interest,  are  admitted.  And  it  has  been  accordingly 
remarked,  by  a  writer  of  the  first  authority  in  this  branch  of  the 
law,  that  after  it  has  been  determined  that  evidence  may  be  ad- 
mitted of  receipts  of  payment,  entered  in  private  books  by  per- 
sons who  are  neither  obliged  to  keep  such  books  nor  to  account 
to  others  for  the  money  received,  it  does  not  seem  any  infringe- 
ment of  principle  to  admit  these  books  of  rectors  and  vicars. 
For  the  entries  cannot  be  used  by  those  who  made  them;  and 
there  is  no  legal  privity  between  them  and  their  successors.  The 
strong  leaning,  on  their  part,  in  favor  of  the  church,  is  nothing 
more,  in  legal  consideration,  than  the  leaning  of  every  declarant 
in  favor  of  his  own  interest,  affecting  the  weight  of  the  evidence, 
but  not  its  admissibility.  General  observations  have  occasion- 
ally been  made  respecting  these  books,  which  may  seem  to  au- 
thorize the  admission  of  any  kind  of  statement  contained  in  them. 
But  such  books  are  not  admissible,  except  where  the  entries  con- 
tain receipts  of  money  or  ecclesiastical  dues,  or  are  otherwise 
apparently  prejudicial  to  the  interests  of  the  makers,  in  the 
manner  in  which  entries  are  so  considered  in  analogous  cases. ^ 
And  proof  will  be  required,  as  in  other  cases,  that  the  writer  had 
authority  to  receive  the  money  stated,  and  is  actually  dead ;  and 
that  the  document  came  out  of  the  proper  custody.^ 

2  Phil.  &  Am.  on  Evid.  322,  323,  and  cases  in  n.  (2)  and  (3)  ;  1  Phil.  Evid.  308, 
n.  (1),  (2);  Ward  y.  Pomfret,  5  Sim.  475. 

8  Gresley  on  Evid.  223,  224 ;  Carrington  v.  Jones,  2  Sim.  &  Stu.  ]35,  140  ;  Perigal 
».  Nicholson,  1  Wightw.  63. 


224  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER   IX. 

OP   DYING    DECLARATIONS. 

§  156.  Dying  declarations.  A  fourth,  exception  to  the  rule,  re- 
jecting hearsay  evidence,  is  allowed  in  the  case  of  dying  declara- 
tions. The  general  principle  on  which  this  species  of  evidence 
is  admitted,  was  stated  by  Lord  Chief  Baron  Eyre  to  be  this, — 
that  they  are  declarations  made  in  extremity,  when  the  party  is 
at  the  point  of  death,  and  when  every  hope  of  this  world  is  gone ; 
when  every  motive  to  falsehood  is  silenced,  and  the  mind  is  in- 
duced, by  the  most  powerful  considerations,  to  speak  the  truth. 
A  situation  so  solemn  and  so  awful  is  considered  by  the  law  as 
creating  an  obligation  equal  to  that  which  is  imposed  by  a  posi- 
tive oath  in  a  court  of  justice.  ^  It  was  at  one  time  held,  by  re- 
spectable authorities,  that  this  general  principle  warranted  the 
admission  of  dying  declarations  in  all  cases,  civil  and  criminal ; 
but  it  is  now  well  settled  that  they  are  admissible,  as  such,  only 
in  cases  of  homicide,  "where  the  death  of  the  deceased  is  the 
subject  of  the  charge,  (a)  and  the  circumstances  of  the  death  are 

^  Rex  V.  Woodcock,  2  Leach's  Cr.  Cas.  256,  567 ;  Druramond's  Case,  1  Leach's  Cr. 
Cas.  378.  The  rule  of  the  Roman  civil  law  was  the  same.  "  Moiti  pioximum,  sive 
moribundum,  non  prfesumeTidum  est  mentiri,  iiec  esse  immemorem  saliitis  feternse  ; 
licet  non  prsesumatur  semper  dicere  veium."  Mascard.  De  Probat.  Concl.  1080.  In 
the  earliest  reported  case  on  this  subject,  the  evidence  was  admitted  without  objection, 
and  apparently  on  this  general  ground.  Rex  v.  Reason,  6  State  Tr.  195,  201. 
The  rule  of  the  common  law,  under  which  this  evidence  is  admitted,  is  held  not  to  be 
repealed  by,  nor  inconsistent  with,  those  express  provisions  of  constitutional  law,  which 
secure  to  the  person  accused  of  a  crime  the  right  to  be  confronted  with  the  witnesses 
against  him.  Anthony  v.  State,  1  Meigs,  265  ;  VVoodsides  v.  State,  2  How.  (Miss.) 
655.  {b) 

(a)  Crookham  v.  State,  5  W.  Va.  510.  that   State   in    prosecutions    for   abortion 

But  where  by  statute  certain  crimes  are  which  result  in  tlie  death  of  the  person 

expressly  declared  to  be  murder  or  man-  operated  upon,  was  thorouglily  discussed. 

slaughter   if   they   result   fatally,    for  in-  It  was  argued  by  counsel   for  the  State, 

stance,  i)rocuring  an  abortion  which  kills  that  the  death  of  the  woman,  when  it  oc- 

the  mother,  the  declaration  is  admissible  curs,  is  a  necessary  ingredient  of  the  of- 

at  the  trial  of  an  indictment  for  such  a  fence,  under  the  statute  of  Pennsylvania, 

crime.     State  v.   Dickinson,  41  Wis.  299.  and  therefore  would  bring  tlie  case  within 

In  a  recent  case  in  Pennsylvania  (Railing  the  rule  ;  and  that  the  death  is  in  part,  at 

V.   Com.,   110  Pa.   St.    103),  the  (juestion  least,    the   subject   of    the   charge.      The 

whether   such   evidence  is   admissible   in  court,  however,  held  that  the  death  was 


(h)   Com.    V.   Gary.    12  Cush.    (Mass.)     inson,  41  Wis.  299;   Campbell  v.   State, 
246;  Brown  v.  Com.,  73  Pa.  St.  321;  Rob-     11  Ga.  353. 
binsv.  State,  8  Ohio  St.  131;  State  v.  Dick- 


CHAP.    IX.] 


DYING    DECLARATI0NF5. 


225 


the  subject  of  the  dying  declarations."  ^  (c)     The  reasons  for  thus 

2  Rex  V.  Mead,  2  15.  &  C.  605.  In  this  ca.se  tlie  prisoner  had  l)een  convicted  of  jinr- 
jury  and  moved  for  a  new  trial,  because  convicted  against  the  weight  of  evidence;  after 
which  he  sliot  the  prosecutor.  Ujion  sliowing  cause  against  the  rule,  the  counsel  for 
the  prosecution  offered  the  dying  declarations  of  the  prosecutor  relative  to  the  fact  of 
perjury  ;  hut  the  evidence  was  adjudged  inadmissible.  The  same  point  was  ruled  by 
Bayley,  J.,  in  Kex  v.  Hutchinson,  who  was  indicted  for  administering  poison  to  a  woman 
pregnant,  but  not  quick  with  child,  in  order  to  procure  abortion.  2  B.  &  C.  608,  n. 
Tliis  doctrine  was  well  considered  and  approved  in  Wilson  w.  Boerem,  15  Johns.  286. 
In  Rex  V.  Lloyd,  4  C.  &  P.  233,  such  declarations  were  rejected  on  a  trial  for  robbery. 
Ujion  an  indif:tnient  for  the  murder  of  A,  by  poison,  which  was  also  taken  by  B, 
who  died  in  consequence,  it  was  held  that  the  dying  <leclarations  of  B  were  admissi- 
ble, {d)  though  the  prisoner  was  not  indicted  for  murdering  her,  Rex  v.  Baker,  2 
M.  &  Rob.  53. 


no  part  of  the  facts  which  went  to  make 
up  or  constitute  the  crime,  but  affected 
only  the  amount  of  the  punishment.  The 
court  further  said  that  if  the  statute  had 
declared  that  when  death  resulted  the 
oll'ence  should  be  manslaughter  or  any 
other  grade  of  homicide,  the  case  would 
be  entirely  different.  Then  the  death 
would  be  an  essential  ingredient  of  the  of- 
fence, and  would  be  the  subject  of  the 
charge,  and  the  rule  as  to  dying  declara- 
tions would  apply.  In  the  case  of  People 
V.  Davis,  56  N.  Y.  95,  where  the  statute 
is  {^uite  similar  to  the  Pennsylvania  stat- 
ute, the  ])enalty  being  increased  when  the 
woman  dies  in  con.sequeuce  of  the  unlaw- 
ful acts,  it  was  held  that  the  dying  decla- 
ratio7is  of  the  woman  were  incompetent 
on  the  general  ground  that  the  death  was 
not  the  subject  of  the  charge.  In  the  case 
of  State  V.  Harper,  35  Ohio  St.  78,  the 
same  doctrine  was  held  under  a  statute 
almost  identical  with  the  Pennsylvania 
statute.  The  Chief  Justice  said  :  "This 
was  an  indictment  for  unlawfully  using  an 
instrument  with  the  intent  of  producing 
abortion,  and  not  an  indictment  for  homi- 
cide. State  V.  Barker,  28  Ohio  St.  583  ; 
People  V.  Davis,  56  N.  Y.  96.  The  death 
was  not  the  subject  of  the  charge,  and 
was  alleged  only  as  a  consequence  of  the 
illegal  act  charged,  which  latter  was  the 
only  subject  of  investigation."  On  the  other 
hand,  the  Supreme  Court  of  Indiana  has 
held  that  such  declarations  were  admis- 
sible in  an  indictment  under  a  similar 
statute.  Montgomery  v.  State,  80  Ind. 
338.  This  case  in  Indiana  appears  to  be 
the  only  one  in  a  court  of  last  resort  in 
which  tlie  declarations  have  been  held 
admissible. 

In  other  criminal  cases  such  decla- 
rations are  not  admitted  (Reg.  v.  Hind, 
8  Cox,  C.  C.  300  ;  State  v.  Harper,  35 
Ohio  St.  78  ;  Johnson  v.  State,  50  Ala. 
456  ;  People  v.  Davis,  56  N.  Y.  95  ;  State 
V.  Bohan,  15  Kan.  407)  ;  nor  in  civil  cases. 
VOL.  I.  —  15 


Dailv  V.  N.  Y.  &  N.  H.  R.  R.,  32  Conn. 
356  ;  Waldele  v.  N.  Y.  Cent.  R.  R.,  19 
Hun  (N.  Y.),  69;  Friedman  i'.  Railway 
Co.,  7  Phila.  Rep.  203  ;  Wootcn  v.  Wil- 
kins,  39  Ga.  223. 

(c)  People  y.  Knapp,  26  Mich.  113; 
West  V.  State,  7  Tex.  App.  150  ;  Lister  v. 
State,  1  Tex.  App.  739  ;  Walker  v.  State, 
52  Ala.  192  ;  State  v.  Shelton,  2  Jones  (N. 
C),  Law,  360.  Declarations  as  to  previous 
relations  of  enmity  between  the  deceased 
and  his  assailant  were  held  not  admissible 
in  Hackett  v.  People,  54  Barb.  370,  but  in 
Wright  V.  State,  41  Tex.  246,  they  were 
admitted  upon  the  question  of  malice.  So, 
too,  if  the  expres.sions  used  are  too  vague 
and  indefinite  to  be  legal  evidence,  they  are 
inadmissible,  as  "it  is  hard  to  die  by  the 
hand  of  another  and  leave  one's  family." 
Crookham  v.  State,  5  W.  Va.  510;  post, 
§  159. 

(cl)  The  case  of  Rex  v.  Baker,  which  is 
stated  in  note  (1),  is  called  by  Mr.  Stephen 
"  a  curious  case"  (Steph.  Dig.  Evid.  note 
XVII.),  audit  has  been  the  subject  of  much 
comment  in  later  cases.  The  ground  on 
which  the  declarations  were  admitted  by 
Coltman,  J.,  was  that  the  two  deaths  by 
the  same  poisoning  were  all  one  transac- 
tion. It  has  been  followed  in  State  v. 
Terrell,  12  Rich.  (S.C.)  321,  a  case  where 
the  facts  singularly  resembled  those  in  Rex 
V.  Baker,  and  in  which  Rex  v.  Baker  is  cited 
with  approval  by  the  court,  and  also  in 
State  V.  Wilson.  23  La.  An.  559,  in  which 
case,  two  ])prsons  were  killed  by  the  same 
liullet,  and  the  declarations  of  one  admitted 
on  a  trial  for  the  death  of  the  other.  Rex 
V.  Baker  was  cited  here  also  with  approval. 
In  Brown  v.  Com.  73  Penn.  St.  321,  how- 
ever. Rex  V.  Baker  and  State  v.  Terrell 
wei-e  criticised  by  the  court,  though  they 
considered  them  different  from  the  case  at 
bar.  The  facts  in  that  case  weie  that  A., 
for  whose  murder  the  prisoner  was  indicted, 
was  found  dead  some  300  yards  from  his 
house,  in  which  his  wife  was  found  at  the 


226  LAW   OP   EVIDENCE.  [PART   II. 

restricting  it  may  be,  that  the  credit  is  not  in  all  cases  due  to 
the  declarations  of  a  dying  person :  for  his  body  may  have  sur- 
vived the  powers  of  his  mind;  or  his  recollection,  if  his  senses 
are  not  impaired,  may  not  be  perfect ;  or,  for  the  sake  of  ease, 
and  to  be  rid  of  the  importunity  and  annoyance  of  those  around 
him,  he  may  say,  or  seem  to  say  whatever  they  may  choose  to 
suggest.^  These,  or  the  like  considerations,  have  been  regarded 
as  counterbalancing  the  force  of  the  general  principle  above 
stated ;  leaving  this  exception  to  stand  only  upon  the  ground  of 
the  public  necessity  of  preserving  the  lives  of  the  community  by 
bringing  manslayers  to  justice,  (e)  For  it  often  happens,  that 
there  is  no  third  person  present  to  be  an  eye-witness  to  the  fact; 
and  the  usual  witness  in  other  cases  of  felony,  namely,  the  party 
injured,  is  himself  destroyed.*  But,  in  thus  restricting  the  evi- 
dence of  dying  declarations  to  cases  of  trial  for  homicide  of  the 
declarant,  it  should  be  observed  that  this  applies  only  to  declara- 
tions offered  on  the  sole  ground  that  they  Avere  made  in  extremis; 
for  where  they  constitute  part  of  the  res  gestce,  or  come  within 
the  exception  of  declarations  against  interest,  or  the  like,  they 


3  Jackson  v.  Kniffen,  2  Johns.  31,  35,  per  Livingston,  J. 
*  1  East,  P.  C.  353. 

same  time  unconscious  and  badly  beaten,  sion  ;  for,  if  that  were  all  that  is  requisite 
She  recovered  sufiBcieutly  to  make  certain  to  render  the  declarations  evidence,  the 
declarations  relative  to  the  death  of  her  apprehension  of  death  should  have  the 
husband,  implicating  the  prisoner.  These  same  effect,  since  it  would  place  the  de- 
were  offered  at  the  trial  and  admitted,  but  clarant  under  the  same  restraint  as  if  the 
on  appeal  the  full  court  reversed  the  apprehension  were  founded  in  fact.  But 
judf^ment.  both  must  concur,  both  the  fact  and  the 
The  fact  that  the  declarant  and  the  per-  apprehension  of  being  in  e-Arevns.  And 
son  for  whose  death  the  prisoner  is  on  trial,  although  it  is  not  indispensable  that  there 
were  both  killed  at  the  same  time,  or  in  should  be  no  other  evidence  of  the  same 
the  same  brawl,  has  been  held  several  facts,  the  rule  is  no  doubt  based  upon  the 
times,  insufficient  to  admit  such  declara-  presumption  that  in  the  majority  of  cases 
tions.  State  v.  Westfall,  49  Iowa,  328  ;  there  will  be  no  other  equally  satisfactory 
Krebs  v.  State,  3  Tex.  App.  348  ;  State  v.  proof  of  the  same  facts.  This  presumption, 
Bohan,  15  Kan.  407  (ili.sai)iiroving  State  and  the  consequent  probability  of  the  crime 
D.  Terrell,  and  State  r.  AVilson).  Probably  going  unpunished,  is  unquestionably  the 
if  the  two  deaths  are  identical  in  time  and  chief  ground  of  this  exception  in  the  law 
place,  and  are  caused  by  the  same  weapon  of  evidence.  And  the  great  reason  why  it 
or  missile  or  means,  the  declarations  of  could  not  be  received  generally,  as  evidence 
either  victim  would  be  held  admissible  on  in  all  cases  where  the  facts  involved  should 
a  trial  for  the  death  of  the  other.  thereafter  come  in  question,  seems  to  be 
(c)  It  is  Tiot  received,  says  Judge  Red-  that  it  wants  one  of  the  most  important 
field,  upon  any  other  ground  than  that  of  and  indispensable  elements  of  testimon}-, 
necessity,  in  order  to  prevent  murder  going  that  of  an  opportunity  for  cross-examina- 
unpunished.  What  is  said  in  the  books  tion  by  the  party  against  whom  it  is  offered, 
about  the  situation  of  the  declarant,  he  See  also  Railing  v.  Com.,  110  Pa.  St.  103, 
being  \nrtually  under  the  most  solemn  where  the  objections  to  this  evidence  are 
sanction  to  speak  the  truth,  is  far  from  well  set  forth, 
presenting  the  true  ground  of  the  admis- 


CHAP.    IX,]  DYING    DECLARATIONS.  227 

are  admissible  as  in  other  cases,  irrespective  of  the  fact  that  the 
dechirant  was  under  apprehension  of  dt!ath.5(/) 

§  157.  Grounds  of  admission.  The  persons  whosc  decUirations 
are  thus  admitted  are  considered  as  standing  in  the  same  situa- 
tion as  if  they  were  sworn;  the  danger  of  impending  death  being 
eipiivalcnt  to  the  sanction  of  an  oath.  It  follows,  therefore,  that 
where  the  declarant,  if  living,  would  have  been  incompetent  to 
testify,  by  reason  of  infamy,  or  the  like,  his  dying  declarations 
are  inadmissible.^  And,  as  an  oath  derives  the  value  of  its 
sanction  from  the  religious  sense  of  the  party's  accountability  to 
his  Maker,  and  the  deep  impression  that  he  is  soon  to  render  to 
Him  the  final  account,  wherever  it  appears  that  the  declarant 
was  incapable  of  this  religious  sense  of  accountability,  whether 
from  infidelity,  imbecility  of  mind,  or  tender  age,  the  declara- 
tions are  alike  inadinissible.2(a)  On  the  other  hand,  as  the  tes- 
timony of  an  accomplice  is  admissible  against  his  fellows,  the 
dying  declarations  of  a  partieeps  erlminis  in  an  act  which  re- 
sulted in  his  own  death  arc  admissible  against  one  indicted  for 
the  same  murder.^  {h) 

5  Supra,  §§  102,  108,  109,  110,  147,  148,  149.  To  some  of  these  classes  may  be 
referred  the  cases  of  Wi'i^lit  v.  Littler,  3  Burr.  1244  ;  Aveson  v.  \A.  Kinnainl,  6  East, 
188  ;  and  some  others.  It  was  once  thought  that  the  dying  declaritions  of  the  sub- 
scribing witness  to  a  forged  instrument  were  admissible  to  impeach  it  ;  but  such  evi- 
dence is  now  rejected,  for  the  reasons  already  stated.  Supra,  §  126.  See  Stoliart  v. 
Dryden,  1  M.  &  W.  61.5,  627.  In  Regina  v.  Megson  et  al.,  9  C.  &  P.  418,  420,  the 
prisoners  were  tried  on  two  indictments,  — one  for  the  murder  of  Ann  Stewart,  and  the 
other  for  a  rape  upon  her.  In  the  former  case,  her  declarations  were  rejected,  because 
not  made  in  extrtunis  ;  and  in  the  latter  so  much  of  them  as  showi^d  tliat  a  (hvadful 
outrage  had  been  perpetrated  upon  her  was  received  as  part  of  the  outrage  itself,  being, 
in  contemplation  of  law,  contemporaneous  ;  but  so  much  as  related  to  the  identity  of 
the  perpetrators  was  rejected.     See  also  Regina  v.  Hewett,  1  Car.  &  Marshni.  534. 

1  Rex  V.  Drummond,  1  Leach's  Cr.  Cas.  378. 

'^  Rex  V.  Pike,  3  C.  &  P.  598  ;  Reg.  i--.  Perkins,  9  C.  &  P.  395  ;  2  Mood.  Cr.  C. 
135  ;  2  Russell  on  Crimes,  688. 

»  Tinckler's  Case,  1  East,  P.  C.  354. 

(/)  Insurance  Co.  v.  Mosley,  8  Wall,  the  declarant  might  have  testified  him- 
397  ;  Brownell  v.  Pacific  R.  R.  Co.,  47  self,  the  objection  that  he  was  infamous 
Mo.  239  ;  State  y.  Shelton,  2  Jones  (N.  C),  or  an  infidel  is  no  longer  a  bar  to  re- 
Law,  360  ;  State  v.  Peace,  1  Id.  251  ;  ceiving  his  dying  declarations,  if  other- 
Oliver  V.   State,   17  Ala.  587.  wise  admissible,  but  it  may  still  be  urged 

(%)  The  learned  author's  statement  of  to   the  jury   as  affecting  his   credibility, 

the  rule   of  law   on   this   point   must   be  People  v.  Chin  Mook  Sow,  51  Cal.  597  ; 

modified  by  the  fact  that  the  law  of  the  People  v.   Sanford,    43  Cal.  29  ;  State  v. 

competency  of  witnesses  has  been  largely  Elliott,  45  Iowa,   486  ;  State    v.  Ah  Lee, 

changed.     The  common-law  rules  exclud-  8  Oreg.  214  ;    Goodall  v.   State,   1   Oreg. 

ing  witnesses  for  infamy  or  infidelity  are  333.     But  it  is  still  a  (juestion  how  much 

no  longer  in  force  in  the  majority  of  the  religious  belief  is  necessary  to  render  the 

States.     Post,  §§  368-370,  3'72-3'78,  379.  witness  suflBciently  aware  of  the  nature  of 

Now  by  statute  in   most   of  them   these  an  oath  to  make  it  binding  on  him,  and 

are  made  objections  to  the  credibility  of  therefore    to    make   his   testimony    legal, 

the  witness,  before  the  jury,  and  not  to  Post,  §  368,  notes. 

his  competenc}',  and  therefore,  as  the  de-  {b)  State  f.  Thomason,  1  Jones  (N.  C), 

clarations  in  question  are  received  where  Law,  274  ;  post,  §  469. 


228  LAW    OF    EVIDENCE.  [PART    II. 

§  158.  Must  be  made  under  a  sense  of  impending  death.  It  is 
essential  to  the  admissibility  of  these  declarations,  and  is  a  pre- 
liminary fact,  to  be  proved  by  the  party  offering  them  in  evidence, 
that  they  were  made  under  a  sense  of  impending  death  ;  but  it  is  not 
necessary  that  they  should  be  stated,  at  the  time,  to  be  so  made. 
It  is  enough,  if  it  satisfactorily  appears,  in  any  mode,  that  they 
were  made  under  that  sanction ;  whether  it  be  directly  proved  by 
the  express  language  of  the  declarant,  or  be  inferred  from  his  evi- 
dent danger,  or  the  opinions  of  the  medical  or  other  attendants, 
stated  to  him,  or  from  his  conduct,  or  other  circumstances  of  the 
case,  all  of  which  are  resorted  to,  in  order  to  ascertain  the  state 
of  the  declarant's  mind.^  The  length  of  time  which  elapsed  be- 
tween the  declaration  and  the  death  of  the  declarant  furnishes  no 
rule  for  the  admission  or  rejection  of  the  evidence;  though,  in 
the  absence  of  better  testimony,  it  may  serve  as  one  of  the  ex- 
ponents of  the  deceased's  belief,  that  his  dissolution  was  or  was 
not  impending.  It  is  the  impression  of  almost  immediate  dis- 
solution, and  not  the  rapid  succession  of  death,  in  point  of  fact, 
that  renders  the  testimony  admissible.^  (a)     Therefore,  where  it 

1  Rex  V.  Woodcock,  2  Leach's  Cr.  Cas.  567  ;  John's  Case,  1  East,  P.  C.  357,  S58  ; 
Rex  V.  Bonner,  6  C.  &  P.  386  ;  Rex  v.  Van  F>ntchell,  3  Id.  631  ;  Rex  v.  Mosley,  1 
Moody's  Cr.  Cas.  97  ;  Rex  v.  Spilsbiuy,  7  C.  &  P.  187,  per  Coleridge,  J. ;  Peg.  v. 
Perkins,  2  Mood.  Cr.  Cas.  135  ;  Montgomery  v.  State,  11  Ohio,  424  ;  Dunn  v.  State, 
2  Ark.  229  ;  Commonwealth  v.  M'Pike,  3  Cush.  181  ;  Reg.  v.  Mooney,  5  Cox,  C.  C. 
318. 

2  In  Woodcock's  Case,  2  Leach's  Cr.  Cas.  563,  the  declarations  were  made  forty- 
eight  hours  before  death  ;  in  Tinckler's  Case,  1  East,  P.  C.  354,  some  of  them  were 
made  ten  days  before  death  ;  and  in  Rex  v.  Mosley,  1  Mood.  Cr.  Cas.  97,  they  were 
made  eleven  days  before  death :  and  were  all  received.  In  this  last  instance,  it  ap- 
peared that  the  surgeon  did  not  think  the  case  hopeless,  and  told  the  patient  so  ; 
but  that  the  patient  thought  otherwise.  See  also  Rcgina  v.  Howell,  1  Denis.  Cr. 
Cas.  1.  In  Rex  v.  Bonner,  6  C.  &  P.  386,  they  were  made  three  days  before  death. 
And  see  Smith  v.  State,  9  Humph.  9  ;  Logan  v.  State,  Id.  24. 

[a)  People  v.  McLaughlin,  44  Cal.  435;  speedy  death,  the  declaration  has  been  ad- 
People  V.  Ah  Dat,  49  Id.  652  ;  Starkey  mitted.  Thus  in  Swisher's  Case,  26  Gratt. 
V.  People,  17  111.  17  ;  Scott  v.  People,  63  963,  ten  days,  and  in  Com.  v.  Haney,  127 
Id.  508  ;  Kehoe  v.  Cora.,  85  Pa.  St.  127  ;  Ma.ss.  455,  four  days,  and  in  Kehoev.  Com., 
Com.  V.  Britton,  1  Leg.  Gaz.  Rep.  513;  85  Pa.  St.  127,  two  days  elapsed,  and  the 
Jackson  v.  Com.,  19  Gratt.  (Va.)  656;  declaration  was  admitted,  while  in  Ex 
Swisher  v.  Com.,  26  Id.  963;  Com.  v.  parte  Nettles,  58  Ala.  268,  death  ensued 
Roberts,  108  Mass.  296  ;  State  v.  Black-  only  six  daj^s  after,  but  the  declarant  had 
burn,  80  N.  C.  474  ;  State  v.  McEvoy,  9  not  given  up  all  hope,  and  the  declaration 
S.  C.  208;  State  v.  McCanon,  51  Mo.  160  ;  was  rejected.  The  language  of  the  declar- 
Johnson  v.  State.  47  Ala.  9  ;  May  v.  ant  must  be  incompatible  with  the  exist- 
State,  55  Ala.  39 ;  State  v.  Daniel,  31  ence  of  hope  of  recoveiy.  So  when  he 
La.  An.  91  ;  Roberts  v.  State,  5  Tex.  Ap.  said,  "  Yes,  who  knows  but  I  may  get 
141.  well "  (Jackson  v.  Com.,  19  Gratt.  656), 

There  have  been  great  variations  in  the  or,    "If  I   die,  I   hope   to   meet   you   in 

length  of  time  which  may  elapse  after  the  heaven  ;  good-by  "  (State  v.  Medlicott,  9 

declaration  is  made  before  the  death  occurs,  Kan.  257),  or  even,  "I   have  no  hope  at 

but  in  all  those  cases  in  which  the  pros-  present"  (R.  v.  Jenkins,  L.  K.  1  Cr.  Cas. 

pact  at  the  time  of  the  utterance  was  of  R.  187),  the  declaration  was  rejected.   The 


CHAP.    IX.] 


DYING    DECLARATIONS, 


229 


appears  that  the  deceased,  at  the  time  of  the  declaration,  had  any 
expectation  or  hope  of  recovery,  however  slight  it  may  have  been, 
and  though  death  actually  ensued  in  an  hour  afterwards,  the 
declaration  is  inadmissble.^  (^*)  On  the  other  hand,  a  belief  that 
he  will  not  recover  is  not  in  itself  sufficient,  unless  there  be  also 
the  prospect  of  "  almost  immediate  dissolution. "  ^ 

§  159.  Only  as  to  what  deceased  might  have  testified  to.  The 
declarations  of  the  deceased  are  admissible  onl>/  to  those  things  to 
which  he  would  have  been  competent  to  testify  if  sworn  in  the 
cause.  They  must,  therefore,  in  general,  speak  to  facts  only, 
and  not  to  mere  matters  of  opinion;  and  must  be  confined  to 
what  is  relevant  to  the  issue,  (a)     But  the  right  to  offer  them  in 

3  So  ruled  in  Welborn's  Case,  1  East,  P.  C.  358,  359  ;  Rex  v.  Christie,  2  Russ.  on 
Crimes,  685  ;  Rex  v.  Hayward,  6  C.  &  P.  157,  160  ;  Kex  v.  Crockett,  4  C.  &  P.  544  ; 
Kex  V.  Fagent,  7  C.  &  P.  238. 

4  Such  was  the  language  of  Hullock,  B.,  in  Rex  v.  Van  Butchell,  3  C.  &  P.  629, 
631.  See  ace.  Woodcock's  Case,  2  Leach's  Cr.  Cas.  567,  per  Ld.  C.  B.  Eyre  ;  Rex  v. 
Bonner,  6  C.  &  P.  386  ;  Commonwealth  v.  King,  2  Virg.  Cas.  78  ;  Commonwealth  v. 
Gibson,  Id.  Ill  ;  Commonwealth  v.  Vass,  3  Leigh,  786  ;  State  v.  Poll,  1  Hawks, 
442  ;  Regina  v.  Perkins,  9  C.  &  P.  395  ;  s.  c.  2  Mood.  Cr.  Cas.  135  ;  ilex  o.  Ash  ton, 
2  Lewin's  Cr.  Cas.  147. 


words  which  show  such  lack  of  hope  may 
be  uttered  after  the  declaration,  if  they 
are  such  as  to  show  that  at  the  time  of 
the  declaration  hope  was  gone!  State  v. 
Si)encer,  30  La.  An.  Pt.  1.  362  ;  State  v. 
Peace,  1  Jones  (N.  C),  Law,  251.  So  his 
declaration  is  admissible  if  made  while 
hope  lingers,  but  it  is  afterwards  ratified 
by  him  when  hope  is  gone  (Reg.  v.  Steele, 
12  Cox,  C.  C.  168),  or  if  made  when  the 
declarant  is  without  hope,  but  afterwards 
he  is  encouraged  and  regains  confidence. 
State  V.  Tilghman,  11  Ired.  (N.  C. )  Law, 
513;  Swisher  V.  Com.,  26  Gratt.  (Va.)  963. 
If  the  wounded  man  is  encouraged  by  the 
doctor  not  to  think  his  case  is  hoi)eless, 
and  gives  no  indication  that  he  dissents 
from  this  opinion,  there  is  not  sufficient 
evidence  that  he  has  given  up  hope,  to 
admit  his  declarations.  People  v.  Robin- 
sou,  2  Park.  C.  R.  235  ;  Ex  parte  Nettles, 
58  Ala.  268. 

[b)  Peak  v.  State,  50  N.  J.  L.  222  ; 
Digby  1?.  People,  113  111.  125.  The  bur- 
den is  on  the  State  to  show  that  the  de- 
clarant had  no  hope  or  expectation  of 
recovery.  Peak  v.  State,  supra.  The  fact 
that  the  declarant,  having  the  opportunity 
had  made  no  spiritual  or  temporal  prepara- 
tion for  leaving  this  world  may  indicate  an 
existing  hope,  but  the  matter  is  for  the 
Court  on  all  the  circumstances.  Digby  v. 
People,  supra. 

(a)    Therefore,  any  statements   which 


would  have  been  objectionable  as  res  inter 
alios,  or  hearsay,  if  the  declarant  had  been 
on  the  stand,  are  inadmissible.  So,  where 
C,  being  poisoned,  declared  that  the  cup 
was  handed  to  her  by  B,  who  said,  when 
handing  it  to  her,  it  was  given  her  by  A, 
the  declaration  was  held  inadmissible  at 
the  trial  of  A  for  poisoning  C.  Johnson 
V.  State,  17  Ala.  618. 

Opinions  are,  as  stated  in  the  text,  in- 
admissible. Where  A  was  shot  at  night 
through  an  opening  in  his  house,  and  said, 
"  B  shot  me,  though  I  did  not  see  him," 
this  was  held  to  be  a  statement  of  an  opin- 
ion of  A's,  and  was  rejected.  State  v.  Wil- 
liams, 67  N.  C.  12.  But  it  is  not  opinion 
to  state  that  the  killing  was  done  "  with- 
out provocation"  (Wroe  v.  State,  20  Ohio 
St.  460)  ;  or,  "for  nothing"  (Roberts  v. 
State,  5  Tex.  Ap.  141).  and  it  is  therefore 
admissible.  And  whenever  an  opinion 
w'ould  be  admissible  if  given  by  the  de- 
clarant on  the  stand,  it  is  admissible  in  a 
declaration,  as  in  regard  to  identity.  So 
where  A  said  at  first  he  did  not  recognize 
his  assailant,  but  did  "as  soon  as  he  com- 
menced his  pranks,"  this  was  admitted. 
Brotherton  t.  People,  75  N.  Y.  159.  It  is 
held  that  a  dying  declaration  of  the  de- 
ceased, wherein  he  states  that  the  attack 
on  him  was  "without  reason,"  or  "with- 
out cause,"  or  was  "intentional,"  is  a 
statement  of  fact  and  not  of  ofiinion,  and 
is  therefore  admissible.     Boyle  v.   State, 


\ 


230 


LAW   OF   EVIDENCE. 


[part  II. 


evidence  is  not  restricted  to  the  side  of  the  prosecutor ;  they  are 
equally  admissible  in  favor  of  the  party  charged  with  the  death.  ^ 
It  is  not  necessary,  however,  that  the  examination  of  the  deceased 
should  be  conducted  after  the  manner  of  interrogating  a  witness 
in  the  cause ;  though  any  departure  from  this  mode  may  affect 
the  validity  and  credibility  of  the  declarations.  Therefore,  it  is 
no  objection  to  their  admissibility  that  they  were  made  in  answer 
to  leading  questions,  or  obtained  by  pressing  and  earnest  solici- 
tation. ^  But  whatever  the  statement  may  be,  it  must  be  com- 
plete in  itself;  for,  if  the  declarations  appear  to  have  been 
intended  by  the  dying  man  to  be  connected  with  and  qualified 
by  other  statements,  which  he  is  prevented  by  any  cause  from 
making,  they  will  not  be  received. ^ 

§  160.  Admissibility  question  for  the  judge.  The  cireumstances 
under  which  the  declarations  were  made  are  to  be  shown  to  the 
judge  ;  it  being  his  province,  and  not  that  of  the  jury,  to  deter- 
mine whether  they  are  admissible,  (a)     In  Woodcock's  Case,  the 

1  Rex  V.  Scaife,  1  Moo.  &  Rob.  551  ;  s.  c.  2  Lewiii's  Or.  Cas.  150. 

2  Rex  V.  Fagent,  7  C.  &  P.  238 ;  Commonwealth  v.  Vass,  3  Leigh,  786  ;  Rex  v. 
Eeason  et  al.,  l"stra.  499  ;  Rex  v.  Woodcock,  2  Leach's  Cr.  Cas.  563. 

3  Common\vealth  v.  Vass,  3  Leigh,  787. 


105  Ind.  470  ;  Payne  v.  State,  61  Miss. 
161  ;  People  v.  Abbott,  4  W.  C.  Rep. 
132  ;  State  v.  Nettlebush,  20  Iowa,  257. 
If  the  statements  are  too  indefinite,  or 
not  relevant  to  the  issue,  they  are  also 
inadmissible.  Scott  v.  People,  63  111. 
508  ;  Luby  v.  Com.,  12  Bush  (Ky. ),  1; 
People  V.  Olmstead,  30  Mich.  431.  The 
method  of  eliciting  the  declaration  does 
not  affect  its  admissibility.  It  may  be 
made  in  answer  to  questions  reduced  to 
writing,  subscribed  and  sworn  to  by  the 
declarant.  Com.  v.  Haney,  127  Mass. 
455;  State  v.  Martin,  30  Wis.  216.  The 
oath,  however,  gives  it  no  additional  force. 
Com.  V.  Hanev,  supra;  State  v.  Frazier, 
1  Houst.  (Del.")  C.  Ca.  176.  The  witness 
by  whom  it  is  proved  need  only  be  able  to 
give  the  substance  of  the  declaration,  not 
its  exact  words.  P.oberts  v.  State,  5  Tex. 
A])p.  141  ;  post,  §  165,  notes  ;  Starke  v. 
People,  17  111.  17.  But  it  must  be  com- 
j)lete  as  to  the  points  it  undertakes  to 
state,  not  fragmentary.  State  v.  Patter- 
son, 45  Vt.  308;  McLean  v.  State,  16 
Ala.  672 ;  post,  §  218  ;  People  v.  Chin 
Mook  Sow,  51  Cal.  597.  If  evidence  is 
put  in  by  the  other  side  to  rebut  the  dec- 
laration, "it  may  be  supported  by  other  cor- 
roborative declarations,  even,  it  seems,  if 
they  were  not  made  in  fear  of  immediate 
death.  State  v.  Thomason,  1  Jones  (N.  C. ), 


Law,  274  ;  State  v.  Blackburn,  80  N.  C. 
474.  Conira,  Wroe  v.  State,  20  Ohio  St. 
460.  The  declaration  itself  may  be  used 
by  either  side  ;  People  v.  Knapp,  26  Mich. 
112. 

(«)  In  the  majority  of  the  United 
States,  the  rule  in  the  text  is  ado[)ted.  It 
is  considered  good  practice  to  have  the  wit- 
nesses examined  by  the  Court  out  of  hearing 
of  the  jury,  thus  avoiding  any  bias  which 
might  be  produced  in  their  minds  by  the 
statements,  and  which  might  be  difficult  to 
remove.  This  was  done  in  Swisher  v.  Com. 
26  Gratt.  (Va.)  963.  Cf.  Bull's  Case,  14 
Id.  613.  In  Johnson  v.  State,  47  Ala.  9, 
the  evidence  was  heard  by  the  judge  in  the 
presence  of  the  jury,  who  were  cautioned 
not  to  regard  it  in  forming  their  verdict. 
So  in  People  v.  Smith,  104  N.  Y.  498,  it 
was  held  that  the  necessary  preliminary 
examination  might,  in  the  discretion  of 
the  court,  be  conducted  in  the  presence 
of  the  jury.  During  the  trial  of  that  pre- 
liminary issue  the  jury  are  merely  in  the 
attitude  of  spectators.  They  have  no  con- 
cern with  it,  and  should  be  so  instructed 
by  the  court.  The  admissil)ility  of  the 
evidence,  is  generally  conceded  to  be  for 
the  Court.  Kehoe  v.  Com.,  85  Pa.  St. 
127  ;  State  v.  Frazier,  1  Houst.  (Del.)  C. 
Cas.  176.  In  Georgia,  however,  the  ques- 
tion whether  the  statement  was  made  un- 


CHAP.    IX.]  DYING   DECLARATIONS.  231 

whole  subject  seems  to  have  been  left  to  the  jury,  under  the 
direction  of  the  court,  as  a  mixed  question  of  law  and  fact ;  but 
subsequently  it  has  always  been  held  a  question  exclusively  for 
the  consideration  of  the  court,  being  placed  on  the  same  ground 
with  the  preliminary  proof  of  documents,  and  of  the  competency 
of  witnesses,  which  is  always  addressed  to  the  court.  ^  But,  after 
the  evidence  is  admitted,  its  credibility  is  entirely  within  the 
province  of  the  jury,  who,  of  course,  are  at  liberty  to  weigh  all 
the  circumstances  under  which  the  declarations  were  made,  in- 
cluding those  already  proved  to  the  judge,  and  to  give  the  testi- 
mony only  such  credit  as,  upon  the  whole,  they  may  think  it 
deserves.  2 

§  161.  Declarations  in  writing.  If  the  statement  of  the  de- 
ceased was  committed  to  writing  and  signed  by  him,  at  the  time  it 
was  made,  it  has  been  held  essential  that  the  writing  should  be 
produced,  if  existing;  and  that  neither  a  copy,  nor  parol  evidence 
of  the  declarations,  could  be  admitted  to  supply  the  omission.^  (a) 

1  Said,  per  Ld.  Ellenborough,  in  Rex  v.  Hucks,  1  Stark.  521,  523,  to  have  been  so 
resolved  by  all  the  judges,  in  a  case  proposed  to  them.  Welborn's  Case,  1  East,  P.  C. 
360  ;  John's  Case, 'id.  358;  Rex  v.  Van  Butchell,  3  C.  &  P.  629;  Rex  v.  Bonner,  6 
C.  &  P.  386  ;  Rex  v.  Spilsbury,  7  C.  &  P.  187,  190  ;  State  v.  Poll,  1  Hawks,  444  ; 
Commonwealth  v.  Murray,  2  Ashm.  41  ;  Commonwealth  v.  Williams,  Id.  69  ;  Hill's 
Case,  2  Gratt.  594  ;  McDaniel  v.  State,  8  Sm.  &  M.  401.  Where  the  dying  deponent 
declared  that  the  statement  was  "as  nigh  right  as  he  could  recollect,"  it  was  held 
admissible.     State  v.  Ferguson,  2  Hill  (S.  C),  619. 

2  2  Stark.  Evid.  263  ;  Phil.  &  Am.  on  Evid.  304  ;  Ross  v.  Gould,  5  Greenl.  204 ; 
Vass's  Case,  3  Leigh,  794.  See  also  the  remarks  of  Mr.  Evans,  2  Poth.  on  Oblig.  256 
(294),  App.  No.  16,  who  thinks  that  the  jury  should  be  directed,  previous  to  consider- 
ing the  eti'ect  of  the  evidence,  to  determine  :  1st,  Whether  the  deceased  was  reall)'  in 
such  circumstances,  or  used  such  expressions,  from  which  the  apprehension  in  question 
was  inferred  ;  2d,  Whether  the  inference  deduced  from  such  circumstances  or  expres- 
sions is  correct  ;  3d,  Whether  the  deceased  did  make  the  declarations  alleged  against 
the  accused  ;  and  4th,  Whether  those  declarations  are  to  be  admitted,  as  sincere  and 
accurate.     Trant's  Case,  McNally's  Evid.  385. 

8  Rex  V.  Gay,  7  C.  &  P.  230 ;  Trowter's  Case,  P.  8  Geo.  I.  B.  R.  12  Vin.  Abr.  118, 
119 ;  Leach  v.  Simpson  et  al.,  1  Law  &  Ecj.  58  ;  5  M.  &  W.  309  ;  7  Dowl.  P.  C.  513  ; 
s.  c.  3  Jur.  654. 

der  fear  of  death  is  left  to  the  jury  on  the  makes  no  difference  in  the  admissibility  of 

whole  evidence.     Jackson  v.  State,  56  Ga.  the  evidence,  and  it  is  only  a  case  of  cora- 

235  ;  Dumas  v.  State,  62  Ga.  58.    Whether  parative  reliability  of  statements  in  writ- 

the  judge  will  hear  evidence  in  rebuttal  is  ing  and  oral  ones  from  memory.     In  Com. 

not  clear.     It  has  been  held  in  Delaware  v.  Hane}%  127  Mass.  455,  the  Court  says  : 

that  he  would  not ;  that  the  evidence  was  "  They  (i.  e.  the  words  of  the  declaration) 

admissible  when   the   State   has   made   a  maj'  be  testilied  to  by  any  witness   who 

prima  facie   case.      State   v.    Cornish,    5  heard  and  remembers  them  ;  the  written 

Harr.     (Del.)    502;    State   v.    Frazier,    1  statement  was  a  contemporary  memoran- 

Houst.  (Del. )  Cr.  Cas.  176.     When  it  is  dum  of  what  was  said,  and  the  witness  had 

before  the  jury,  however,  no  direction  by  a  right  to  refer  to  it  for  the  purpose  of 

the  judge  as  to  its  force  is  allowed.     State  refreshing  his  memory."     But  in  State  v. 

V.  McCanon,  51  Mo.  160.  Fraunberg,  40  Iowa,  555,  the  declaration 

(a)  This  rule  does  not  seem  universally  was  taken  down  by  a  justice  of  the  peace 

adopted.     In  State  ?'.   Patterson,    45  Vt.  in  the  form  of  a  deposition.     The  dec.lara- 

308,  the  Court  say  the  loss  of  the  writing  tion  was  not  read  over  to  the  declarant. 


232  LAW   OF   EVIDENCE.  [PART   II. 

But  where  the  declarations  had  been  repeated  at  different  times, 
at  one  of  which  they  were  made  under  oath,  and  informally  re- 
duced to  writing  by  a  witness,  and  at  the  others  they  were  not, 
it  was  held  that  the  latter  might  be  proved  by  parol,  if  the  other 
could  not  be  produced. ^  If  the  deposition  of  the  deceased  has 
been  taken  under  any  of  the  statutes  on  that  subject,  and  is 
inadmissible,  as  such,  for  want  of  compliance  with  some  of  the 
legal  formalities,  it  seems  it  may  still  be  treated  as  a  dying 
declaration,  if  made  in  extremis.^ 

§  161  a.  Substauce  only  required.  It  has  been  held  that  the 
substance  of  the  declarations  may  be  given  in  evidence,  if  the  wit- 
ness is  not  able  to  state  the  precise  language  used.  ^  And  we  have 
already  seen  that  it  is  no  objection  to  their  admissibility,  that  they 
were  obtained  in  answer  to  questions  asked  by  the  by-standers, 
nor  that  the  questions  themselves  were  leading  questions;  and 
that,  if  it  appear  that  the  declarations  were  intended  by  the  dying 
person  to  be  connected  with  and  qualified  by  other  statements, 
material  to  the  completeness  of  the  narrative,  and  that  this  was 
prevented  by  interruption  or  death,  so  that  the  narrative  was  left 
incomplete  and  partial,  the  evidence  is  inadmissible.^ 

§  161  h.  Declarations  by  signs.  The  testimony  here  spoken  of 
may  be  given  as  well  by  signs  as  by  words.  Thus,  where  one, 
being  at  the  point  of  death  and  conscious  of  her  situation,  but 
unable  to  articulate  by  reason  of  the  wounds  she  had  received, 
was  asked  to  say  whether  the  prisoner  was  the  person  who  had 
inflicted  the  wounds,  and,  if  so,  to  squeeze  the  hand  of  the  in- 
terrogator, and  she  thereupon  squeezed  his  hand,  it  was  held  that 
this  evidence  was  admissible  and  proper  for  the  consideration  of 
the  jury. 3  (a) 

2  Rex  V.  P.paRon  et  al.,  1  Str.  499,  500. 

3  Rex  V.  Woodcock,  2  Leach,  Cr.  Cas.  563  ;  Rex  v.  Callaghan,  McNally's  Evid. 
385. 

1  Montstomery  i;.  State,  11  Ohio,  424  ;  Ward  v.  State,  8  Blackf.  101.  And  see 
infra,  §  165  ;  ante,  §  159. 

2  Vass's  Case,  3  Leigh,  786  ;  supra,  §  159. 

3  Commonwealth  v.  Casey,  11  Cush.  417  ;  s.  c.  6  Monthly  Law  Rep.  p.  203. 

nor  signed  by  him,    and    was   held    in-  State,  8  Tex.  App.  1  ;  State  v.  Cameron, 

admissible.       In    State    v.    Sullivan,    51  2  Chand.  (Wis.)  172;  People  ^7.  Glenn,  10 

Iowa,  142,  it  is  said  that  if  a  writing  is  Cal.  32  ;  Collier  v.  State,  20  Ark.  36. 
signed  by  the  declarant  or  read   to  and  {a)  In  his  opinion  Shaw,  C.  J.,  thus 

assented  to  by  him,  it  must  be  produced,  states  the  grounds   of  its  admissibility  : 

but  if  it  is  a  mere   memorandum,  made  "  In  regard  to  the  matter  before  the  court, 

by  witness,  it  need  not  be.     Cf.  State  v.  and  the  admissibility  of  the  signs  by  Mrs. 

Tweeday,  11  Iowa,  350.     If  several  state-  Taylor,  in  reply  to  the  questions  put  to 

ments  are  made,  one  in  writing  and  others  her,  it  is  to  be  observed  that  all  woids  are 

not,  parol  evidence  may  undoubtedly  be  signs  ;  some  are  made  bythe  mouth,  and 

given  of  those  not  in  writing.     Krebs  v.  others  by  the  hands.     There  was  a  civil 


CHAP.    IX.]  DYING    DECLARATIONS.  233 

§  162.  Appreciation  of  the  weight  of  such  declarations  as  evidence. 
Though  these  declarations,  when  deliberately  made,  under  a  sol- 
emn and  religious  sense  of  impending  dissolution,  and  concerning 
circumstances,  in  respect  of  which  the  deceased  was  not  likely  to 
have  been  mistaken,  are  entitled  to  great  weight,  if  precisely 
identilied,  yet  it  is  always  to  be  recollected  that  the  accused  has 
not  the  power  of  cross-examination, —  a  power  quite  as  essential 
to  the  eliciting  of  all  the  truth,  as  the  obligation  of  an  oath  can 
be ;  and  that  where  the  witness  has  not  a  deep  and  strong  sense 
of  accountability  to  his  Maker,  and  an  enlightened  conscience, 
the  passion  of  anger  and  feelings  of  revenge  may,  as  they  have 
not  unfrequently  been  found  to  do,  affect  the  truth  and  accuracy 
of  his  statements,  especially  as  the  salutary  and  restraining  fear 
of  punishment  for  perjury  is  in  such  cases  withdrawn.  And  it 
is  further  to  be  considered,  that  the  particulars  of  the  violence 
to  which  the  deceased  has  spoken  were  in  general  likely  to  have 
occurred  under  circumstances  of  confusion  and  surprise,  calcu- 
lated to  prevent  their  being  accurately  observed,  and  leading  both 
to  mistakes  as  to  the  identity  of  persons,  and  to  the  omission  of 
facts  essentially  important  to  the  completeness  and  truth  of  the 
narrative.^ 

1  Phil.  &  Am.  on  Evid.  305,  306 ;  1  Phil.  Evid.  292  ;  2  Johns.  35,  36,  per  Living- 
ston, J.  See  also  Mr.  Evans's  observations  on  the  great  caution  to  be  observed  in  the 
use  of  this  kind  of  evidence,  in  2  Poth.  Obi,  255  (293) ;  2  Stark.  Evid.  263.  See  also 
Rex  V.  Ashton,  2  Lewiu's  Cr.  Cas.  147,  per  Alderson,  B. 

case  tried  in  Berkshire  county,  where  a  suit  in  such  a  manner  as  to  render  it  probable 

was  brought  against  a  railroad  company,  that  she  understood,  and  was  at  the  same 

and  the  question  was,  whether  a  female  time  conscious  that  she  could  not  recover, 

who  was  run  over  survived  the  accident  for  then   it   is   admissible    evidence.       It   is, 

any  length  of  time.     She  was  unable  to  therefore,  the  opinion  of  the  court,  that  the 

speak,  but  was  asked,  if  she  had  conscious-  circumstances  under  which  the  responses 

ness,  to  press  their  hands,  and  the  testi-  were  given  by  Mrs.  Taylor  to  the  questions 

mony  was  admitted.     If  the  injured  party  which  were  put  her  warrant  that  the  evi- 

had  but  the  action  of  a  single  finger,  and  dence  shall  be  admitted,  but  it  is  for  the 

with   that    finger   pointed    to   the   words  jury  to  judge  of  its  credibility,  and  of  the 

"  yes"  and  "  no,"  in  answer  to  questions,  effect  wliich  shall  be  given  to' it." 


234  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER  X. 

OF   THE   TESTIMONY   OF   WITNESSES   SUBSEQUENTLY   DEAD,    ABSENT,    OR 

DISQUALIFIED. 

§  163.  Testimony  of  deceased  witnesses.  In  the  fifth  class  of 
exceptions  to  the  rule  rejecting  hearsay  evidence  may  be  included 
the  testimoyiy  of  deceased  ivitnesses,  given  in  a  former  action,  be- 
tween the  same  parties;  though  this  might,  perhaps,  with  equal 
propriety,  be  considered  under  the  rule  itself.  This  testimony 
may  have  been  given  either  orally  in  court,  or  in  written  deposi- 
tions taken  out  of  court.  The  latter  will  be  more  particularly 
considered  hereafter,  among  the  instruments  of  evidence.  But 
at  present  we  shall  state  some  principles  applicable  to  the  testi- 
mony, however  given.  The  chief  reasons  for  the  exclusion  of 
hearsay  evidence  are  the  want  of  the  sanction  of  an  oath,  and  of 
any  opportunity  to  cross-examine  the  witness.  But  where  the 
testimony  was  given  under  oath,  in  a  judicial  proceeding,  (a)  in 
which  the  adverse  litigant  was  a  party  (b)  and  where  he  had  the 
power  to  cross-examine,  and  was  legally  called  upon  so  to  do, 
the  great  and  ordinary  test  of  truth  being  no  longer  wanting,  the 
testimony  so  given  is  admitted,  after  the  decease  of  the  witness, 
in  any  subsequent  suit  between  the  same  parties.  ^  (c)  It  is  also 
received,  if  the  witness,  though  not  dead,  is  out  of  the  jurisdic- 
tion, or  cannot  be  found  after  diligent  search,  or  is  insane,  or 
sick,  and  unable  to  testify,  or  has  been  summoned,  but  appears 

1  Bull.  N.  P.  239,  242  ;  Mayor  of  Doncaster  v.  Day,  3  Taunt,  262 ;  Glass  v.  Beach, 
5  Vt.  172  ;  Lightner  v.  Wike,  4  S.  &  R.  203. 

(a)  The  proceedings  must  be  before  a  the  other  is  not  admissible.    In  such  cases, 

Court  which  properly  has  jurisdiction  of  if  the  evidence  given  in  a  former  trial,  by 

the  case  ;   but  mere  informalities  in  the  the  party  who  is   deceased,  is  offered  in 

proceedings,  as  a  mistake  in  impanelling  the  subsequent  trial,  the  other  party  must 

the  jury,  will  not  render  the  evidence  in-  also  be  allowed  to  testify.     Strickland  v. 

admissible  in  a  subsequent  suit.     State  v.  Hudson,  55  Miss.  235  ;  McDonald  v.  Al- 

Johnson,  12  Nev,  121.  len,    8   Baxt.   (Tenn.)  446.     See  post,  §§ 

(6)  Marshall  v.   Hancock,  80  Cal.  85.  329,  330,  et  seq.,  and  notes. 

In  many  of  the  States  where  by  statute,  (c)  Reynolds  v.   United  States,  98  U. 

parties  to  a  suit  are  permitted  to  testify  S.   155  ;  Ruch  v.  Rock  Island,  97   U.  S. 

in  their  own  behalf,  an  exception  is   in-  693  ;  Costigan   v.   Lunt,  127   Mass.^  355  ; 

serted  in  the  statute  which  provides  that  Yale  v.  Comstock,  112  Id.  267  ;  O'Brian 

when  one  party  is  dead,  or  otherwise  una-  v.  Com.,  6  Bush  (Ky.),  563  ;  Sullivan  v. 

ble  to  give  his  testimony,  the  testimony  of  State,  6  Tex.  App.  319. 


CHAP.    X.]  WITNESSES   SUBSEQUENTLY   DISQUALIFIED.  236 

to  have  been  kept  away  by  the  adverse  party.2(t?)     But  testimony 

2  Bull.  N.  P.  239,  243;  1  Stark.  Evid.  264  ;  12  Via.  Abr.  107,  A.  b.  31  ;  Godb. 
32o  ;  Ke.x  V.  Eriswell,  3  T.  K.  707,  721,  per  Ld.  Keiiyon.  As  to  the  elfect  of  interest 
subsi'ijueiitly  ar([uired,  see  infra,  §  167.  Upon  the  (juestion  wlu-ther  this  kind  of  evi- 
dence is  mlniissible  in  any  other  contingency  except  the  death  of  tlie  witness,  there  is 
some  discrepancy  among  the  American  authorities.  It  has  been  lefused  where  the  wit- 
ness had  subseiiuently  bectune  interested,  but  was  living  and  within  reach  (Chess  v. 
Cliess,  17  S.  &  it.  409  ;  Irwin  v.  Keed,  4  Yeates,  512)  ;  where  he  was  not  to  be  found 
witliiu  the  jurisdiction,  but  was  reported  to  have  gone  to  an  adjoining  State  (Wilbur  y. 
S^'ldcn,  6  Covven,  162)  ;  where,  since  the  former  trial,  he  had  become  incompetent  by 
being  convicted  of  an  infamous  crime  (LeBaron  v.  (Jrombie,  14  Mass.  234) ;  where, 
though  present,  he  had  forgotten  the  facts  to  wliich  he  had  formerly  testified  (Drayton 
V.  Wells,  1  Nott  &  M<;C'ord,  409)  ;  and  where  he  was  proved  to  have  left  the  State,  after 
being  summoned  to  attend  at  the  trial.  Finn's  Case,  5  Hand.  701.  In  this  last  case  it 
was  held,  that  this  sort  of  testimony  was  not  admissible  in  any  criminal  case  whatever. 
In  the  cas(;s  of  Le  Baron  v.  Crombie,  Wilbur  v.  Selden,  and  also  in  Crary  v.  Sprague,  12 
Wend.  41,  it  was  said  that  such  testimony  was  not  admissible  in  any  case,  except  where 
the  witness  was  shown  to  be  dead;  but  this  point  was  not  in  either  of  those  cases  directly 
in  judgment ;  and  in  some  of  them  it  does  not  appear  to  have  been  fully  considered. 
On  the  other  hand,  in  Drayton  v.  Wells,  it  was  held  by  Cheves,  J.,  to  be  admissible  in 
four  cases  :  1st,  where  the  witness  is  dead  ;  2d,  insane  ;  3d,  beyond  the  seas  ;  and  4th, 
where  he  has  been  kept  away  by  contrivance  of  the  other  party.  See  also  Moore  v. 
Pearson,  6  Watts  &  Serg.  51.  In  Magill  v.  Kautfman,  4  S.  &  K.  317,  and  in  Carpenter 
V.  Grotf,  5  S.  &  K.  162,  it  was  admitted  on  proof  that  the  witness  had  removed  from 
Pennsylvania  to  Ohio ;  it  was  also  admitted,  where  the  witness  was  unable  to  testify, 
by  reason  of  sickness,  in  Miller  v.  Russell,  7  Martin,  N.  s.  266  ;  and  even  where  he, 
being  a  sheriff,  was  absent  on  official  duty.  Noble  v.  Martin,  7  Martin  N.  s.,  282. 
But  if  it  appears  that  the  witness  was  not  fully  examined  at  the  former  trial,  his  testi- 
mony cannot  be  given  in  evidence.  Noble  v.  MeClintock,  6  Watts  &  Serg.  58.  If 
the  witness  is  gone,  no  one  knows  whither,  and  his  place  of  abode  cannot  be  ascertained 
by  diligent  inquiry,  the  case  can  hardly  be  distinguished  in  principle  from  that  of  his 
death;  and  it  would  seem  that  his  former  testimony  ought  to  be  admitted.  If  he  is 
merely  out  of  the  jurisdiction,  but  the  i)lace  is  known,  and  his  testimony  can  be  taken 
under  a  commission,  it  is  a  proper  case  for  the  judge  to  decide,  in  his  discretion,  and 
upon  all  the  circumstances,  whether  the  purposes  of  justice  will  be  best  served  by  issu- 
ing such  commission,  or  by  adndtting  the  proof  of  what  he  formerly  testified. 

(d)    Hudson  v.    Roos,    76   Mich.    180 ;  &  R.  319)  ;  and  Ohio  (Summons  ?'.  State, 

Howard  v.  Patrick,  38  Mich.  795  ;  Whit-  5  Ohio  St.  325);  and  Michigan.     Howard 

aker  v.  Marsh,  62  N.  H.  478  ;  Young  v.  v.  Patrick,  38  Mich.  795.     But  not  so  in 

Dearborn,  22  N.  H.  372  ;  Rothrock  v.  Gal-  Kentucky  (Collins  v.  Com.,  12  Bush,  271); 

laher,  91  Pa.   St.  108  ;   Marler  v.  State,  nor  Nevada,   even  in  a   civil   suit    (Ger- 

67  Ala.  55.     In  England,  such  testimony  hauser  v.    North   British,  &c.   Ins.  Co.,  7 

is  admissible  on/tj  in  civil  cases,  when  the  Nev.  175)  ;  nor  Virginia.    Brogy  v.  Cora., 

witness  h  out  uf  the  jurisdiction.    Stephen,  10  Graft.   722. 

Dig.  Evid.  art.  32.     In  the  United  States  It  is  also  law,  in  most  if  not  all  of  the 

the  rule  varies.     In    Sullivan  v.  State,  6  United   States,   that   the   testimony   of  a 

Tex.  App.  319,  it  was  said  that  if  the  wit-  witness  given  at  a  former  trial  is  admissi- 

ness  could   not  be   found,   after  diligent  ble  if  he  is  kept  away  by  the  other  party, 

impiiry,  such  testimony   was  admissible,  A  recent  case  (Reynolds  ■u.  United  States) 

but  the  bare  fiict  that  he  was  out  of  the  was  tried  first  in'the  Teriitorial  Court  of 

State  was  not  enough.    In  Slusser  v.  Bur-  Utah,  and  it  was  there  ruled  that  if  the 

lington,  47  Iowa,  300,  the  same  ruling  was  witness  is  concealed  by  the  defendant  in 

in  effect  made.     In  Shackelford  v.  State,  order  to  avoid  the  service  of  a  subpoena,  it 

33    Ark.    539,   where  it  was  proved  that  was  competent  for  the  Court  to  allow  evi- 

such  diligent  inquiry  had  been  made,  the  deuce  of  her  testimony  in  a  former  trial  of 

evidence   was   admitted.      Of.    Hurley  v.  the  same  case  to  go  to  the  jury  ;  1  Utah 

State,  29  Id.  17.     In  California,  the  mere  Terr.  319.     The  case  was  carried  up  to  the 

fact  that  the  witness  is  out  of  the  State,  Supreme  Court  of  the  United  States,  and 

admits  such  evidence.     People  v.  Devine,  the   ruling  there  affirmed.      Revnolds  v. 

46  Cal. ;    Meyer  v.  Roth,  51  Id.  582.     So  United  States,  98  U.  S.  155.    To"  the  same 

in  Pennsylvania  (Magill  v.  Kauffman,  4  S.  effect  is  Cook  v.  Stout,  47  111.  530. 


236  LAW   OP   EVIDBNCE.  [PART  II. 

thus  offered  is  open  to  all  the  objections  which  might  be  taken 
if  the  witness  were  personally  present.  ^  And  if  the  witness  gave 
a  written  deposition  in  the  cause,  but  afterwards  testified  orally 
in  court,  parol  evidence  may  be  given  of  what  he  testified  viva 
voce,  notwithstanding  the  existence  of  the  deposition,  ^(g) 

§  1G4.  Restrictions.  The  admissibility  of  this  evidence  seems 
to  turn  rather  on  the  right  to  cross-examine  than  upon  the  precise 
nominal  identity  of  all  the  parties.  Therefore,  where  the  wit- 
ness testified  in  a  suit,  in  which  A  and  several  others  were  plain- 
tiffs, against  B  alone,  his  testimony  was  held  admissible,  after 
his  death,  in  a  subsequent  suit,  relating  to  the  same  matter, 
brought  by  B  against  A  alone.  ^  (a)  And,  though  the  two  trials 
were  not  between  the  parties,  yet  if  the  second  trial  is  between 
those  who  represent  the  parties  to  the  first,  by  privity  in  blood, 
in  law,  or  in  estate,  the  evidence  is  admissible,  (h)  And  if,  in  a 
dispute  respecting  lands,  any  fact  comes  directly  in  issue,  the  tes- 
timony given  to  that  fact  is  admissible  to  prove  the  same  point  or 
fact  in  another  action  between  the  same  parties  or  their  privies, 
though  the  last  suit  be  for  other  lands.  ^  The  principle  on 
which,  chiefly,  this  evidence  is  admitted,  namely,  the  right  of 
cross-examination,  requires  that  its  admission  be  carefully  re- 
stricted to  the  extent  of  that  right;  and  that  where  the  witness 

3  Wright  V.  Tatham,  1  Ad.  &  El.  3,  21.  Thus,  where  the  witness  at  the  former 
trial  was  called  by  the  defendant,  but  was  interested  on  the  side  of  the  plaintiff,  and 
the  latter,  at  the  second  trial,  offers  to  prove  his  former  testiinon}',  the  defendant  may 
object  to  the  competency  of  the  evidence,  on  the  ground  of  interebt.  Crary  v.  Sprague, 
12  Wend.  41. 

4  Todd  V.  E.  of  Winchelsea,  3  C.  &  P.  387. 

1  Wright  V.  Tathara,  1  Ad.  &  El.  3.     But  see  Matthews  v.  Colbum,  1  Strob.  258. 

2  Outran!  v.  Morewood,  3  East,  346,  354,  355,  per  Ld.  Ellenborough  ;  Peake's 
Evid.  (3d  ed.)  p.  37  ;  Bull.  N.  P.  232;  Doe  v.  Derby,  1  Ad.  &  El.  873  ;  Doe  v.  Fos- 
ter, Id.  791,  n.  ;  Lewis  v.  Clerges,  3  Bac.  Abr.  614  ;  Shelton  v.  Barbour,  2  Wash.  64  ; 
Rushworth  v.  Countess  of  Pembroke,  Hard.  472  ;  Jackson  v.  Lawson,  15  Johns.  544  ; 
Jackson  v.  Bailey,  2  Johns.  17  ;  Powell  v.  Waters,  17  Johns.  176.  See  also  Ephraims 
V.  Murdoch,  7  Blackf.  10  ;  Harper  v.  Burrow,  6  Ired.  30  ;  Clealand  v.  Huey,  18  Ala. 
343. 

As  to  illness  or  insanity,  if  it  is  of  such  same  way.     Schearer  v.  Harber,  36  Ind. 

a  nature  as  to  lead  to  a  belief  that  the  wit-  536. 

ness  will  soon  be  able  to  testify,  the  judge  (a)  Philadelphia,  &c.  E.  R.  Co.  v.  How- 

may  in  his  discretion  postpone  the  trial,  ard,  13  How.  (U.  S. )  307.    Cf.  Louisville, 

Taylor  on  Evid.  §§  444,  445  ;  Harrison  v.  &c.   K.  R.   Co.  v.  Atkins,  2   Lea   (Tenn.), 

Blades,  3  Campb.  458.  248.     The  admi.ssibility  of  such  evidence 

(f )    So  if    the    witness's    evidence    is  is  stated  to  be  conditioned  on  the  right  of 

taken  down  by  a  clerk,  it  may  be  proved  cross-examination  in   O'Brien  v.  Com.,  6 

as  well   bv  parol   evidence.     Shackelford  Bush   (Ky.),  563,  and  State  v.  Johnson, 

V.  State,  33  Ark.  539.  12  Nev.  121. 

In  all   cases   iu   which   such   evidence  {b)  Jackson  v.  Crissy,  3  Wend.  (N.Y.) 

is  admissible,  the   evidence   of  an   inter-  251  ;  Yale  v.  Comstock,  112  Mas.s.   267  ; 

prefer,    who   translated   the    evidence    of  Indianapolis,  &c.  R.  R.  Co.  v.  Stout,  53 

the    witness,    may    be    proved    in    the  Ind.  143. 


CHAP.    X.]  WITNESSES   SUBSEQUENTLY   DISQUALIFIED. 


237 


incidentally  stated  matter,  as  to  which  the  party  was  not  per- 
mitted by  the  law  of  trials  to  cross-examine  him,  his  statement 
as  to  that  matter  ought  not  afterwards  to  be  received  in  evidence 
against  such  party.  Where,  therefore,  the  point  in  issue  in  both 
actions  was  not  the  same,  the  issue  in  the  former  action  having 
been  upon  a  common  or  free  fishery,  and,  in  the  latter,  it  being 
upon  a  several  fishery,  evidence  of  what  a  witness,  since  deceased, 
swore  upon  the  former  trial,  was  held  inadmissible,  ^(c) 

§  165.  Precise  words  not  necessary.  It  was  formerly  held,  that 
the  person  called  to  prove  what  a  deceased  witness  testified  on  a 
former  trial  must  be  required  to  repeat  his  precise  words,  and 
that  testimony  merely  to  the  effect  of  them  was  inadmissible.^  (a) 


8  Melvin  v.  Whiting,  7  Pick.  79.  See  also  Jackson  v.  Winchester,  4  Dall,  206 ; 
Ephraiins  v.  Murdoch,  7  Blackf.  10. 

^  4  T.  R.  290  ;  said,  per  Ld.  K^enyon,  to  have  been  so  "agreed  on  all  hands,"  upon 
an  offer  to  prove  what  Ld.  Palmerston  had  testified.  So  held,  also,  by  Washington,  J., 
in  United  States  v.  Wood,  3  Wash.  C.  C.  440  ;  1  Phil.  Evid.  200  [215],  3d  ed.  ;  Fos- 
ter    V.  Shaw,  7  Serg.  &  R.   163,  per  Duncan,  J.  ;  Wilbur  v.  Selden,  6  Covven,   165 ; 


(c)  The  testimony  of  a  witness  at  a  cor- 
oner's inquest  is  not  admissible  in  the  sub- 
sequent trial  of  one  indicted  for  the  death 
which  the  inquest  found,  because  the  de- 
fendant in  the  indictment  had  no  oppor- 
tunity of  cross-examining  the  witness. 
State  V.  Campbell,  1  Rich.  (S.  C.)  124. 
Testimony  before  arbitrators  is  admissible 
in  a  subsetjuent  trial  of  the  same  subject, 
by  the  same  parties.  McAdatns  v.  Stil- 
well,  13  Pa.  St.  90  ;  Bailey  v.  Woods,  17 
N.  H.  365.  Contra,  Jessup  o.  Cook,  6  N. 
J.  L.  434. 

The  testimony  of  witnesses  in  a  suit  by 
one  who  has  been  injured  by  the  negliA 
gence  of  a  railway  company  is  admissible 
in  an  action  brought,  subse(iuently  to  the 
decease  of  the  former  plaintiff,  intestate, 
by  the  administrator  of  his  estate  against 
the  same  railway  company,  to  recover  for 
the  same  injuries  of  the  intestate.  Indi- 
anapolis, &c.  R.  R.  Co.  V.  Stout,  53  Ind. 
143. 

Under  the  statutes  making  parties  to  a 
suit  competent  witnesses,  it  is  believed 
that  the  evidence  given  by  a  party  who 
has  since  died  would  be  admissible  under 
the  same  rules  as  that  of  an  ordinary  wit- 
ness in  cases  where  the  suit  comes  to  a 
second  trial.  Strickland  v.  Hudson,  55 
Miss.  235.  Where  the  complainant  in  an 
equity  suit,  after  being  examined  as  wit- 
ness, died  before  the  hearing,  and  the  suit 
was  revived  by  his  executors,  it  was  held 
that  his  deposition  might  be  read  at  the 
hearing.  McDonald  v.  Alden,  8  Baxt. 
(Tenn.)  446. 


(a)  The  rule  is  now  well  established  in 
Massachusetts,  as  the  author  states  it  in 
note  2.  Corey  v.  Janes,  15  Gray,  543; 
Woods  V.  Keyes,  14  Allen,  236.  'in  the 
recent  case  of  Costigan  v.  Lunt,  127  Mass. 
354,  where  a  witness,  produced  to  prove 
the  testimony  of  a  deceased  witness  at  a 
former  trial  of  the  case,  having  taken 
notes  of  such  parts  of  the  testimony  as  he 
considered  material,  said  that,  on  refresh- 
ing his  memory  by  his  notes,  he  could 
give  the  substance  of  the  ivords  of  the  tes- 
timony, though  he  could  not  give  the  tes- 
timony u'ord  for  word,  tlie  court  held  that 
this  was  admissible.  With  the  exception 
of  Massachusetts,  the  rule,  as  stated  by 
the  author  in  the  text,  obtains  generally, 
and  the  witness  may  state  the  substance 
of  what  was  sworn  at  the  former  trial. 
Ruch  V.  Rock  Island,  97  U.  S.  693  ;  United 
States  V.  Macomb,  5  McLean,  C.  C.  286 
(which  contains  a  very  good  discussion  of 
the  subject)  ;  Martin  v.  Cope,  3  Abb. 
(N.  Y.)  App.  Dec.  182;  Van  Buren  v. 
Cockburn,  14  Barb.  (N.  Y.)  118  ;  Brown 
V.  Com.,  73  Pa.  St.  321  ;  Jones  v.  Wood, 
16  Pa.  St.  25  ;  Johnson  v.  Powers,  40  Vt. 
611;  Williams  v.  Willard,  23  Vt.  369; 
Emery  v.  Fowler,  39  Me.  326  ;  Riggins  v. 
Brown,  12  Ga.  271  ;  Davis  v.  State,  17 
Ala.  354;  Clealand  v.  Huey,  18  I<1.  343  ; 
Kendrick  v.  State,  10  Humph.  (Tenn.) 
479  ;  Buie  v.  Carver,  73  N.  C.  264  ;  Har- 
rison V.  Charlton,  42  Iowa,  573  ;  Fell  v. 
B.  C.  R.  &  M.  R.  R.  Co.,  43  Iowa,  177  ; 
Gannon  v.  Stevens,  13  Kan.  447  ;  Wade  v. 
State,  7  Baxt.  (Tenn.)  80. 


238  LAW    OP^    EVIDENCE.  [PART    II, 

But  this  strictness  is  not  now  insisted  upon,  in  proof  of  the  crime 

Ephrainis  v.  Murdoch,  7  Blackf.  10.  The  same  rule  is  applied  to  the  proof  of  dying 
declarations.  Montgomery  v.  Ohio,  11  Ohio,  421.  In  New  Jersey,  it  has  been  held, 
that  if  a  witness  testities  that  he  has  a  distinct  recollection,  independent  of  his  notes, 
of  the  fact  that  the  deceased  was  sworn  as  a  witness  at  the  former  trial,  of  what  he  was 
produced  to  prove,  and  of  the  substance  of  what  he  then  stated,  he  may  rely  on  his 
notes  for  the  language,  if  he  believes  them  to  be  correct.  Sloan  v.  Soniers,  1  Spencer, 
66.  In  Massachusetts,  in  _  Common  wealth  v.  Richard,  18  Pick.  434,  the  witnesses 
did  not  state  the  precise  words  used  by  the  deceased  witness,  but  only  the  substance  of 
them,  from  recollection,  aided  by  notes  taken  at  the  time  ;  and  one  of  the  witnesses 
testified  tliat  he  was  confident  that  he  stated  substantives  and  verbs  correctly,  but  was 
not  certain  as  to  the  prepositions  and  conjunctions.  Yet  the  court  held  this  insuffi- 
cient, and  required  that  the  testimony  of  the  deceased  witness  be  stated  in  his  own 
language,  ipsissimis  verbis.  The  point  was  afterwards  raised  in  Warren  v.  Nichols,  6 
Met.  261  ;  where  the  witness  stated  that  he  could  give  the  substance  of  the  testimony 
of  the  deceased  witness,  but  not  the  precise  language  ;  and  the  court  held  it  insuffi- 
cient ;  Hubbard,  J.,  dissentiente.  The  rule,  however,  as  laid  down  by  the  court  in  the 
latter  case,  seems  to  recognize  a  distinction  between  giving  the  substance  of  the  de- 
ceased witness's  testimony,  and  the  substance  of  the  language  ;  and  to  require  only 
that  his  language  be  stated  substantially,  and  in  all  material  particulars,  and  not  ipsis- 
simis verbis.  The  learned  chief  justice  stated  the  doctrine  as  follows  :  "The  rule  upon 
■which  evidence  may  be  given  on  what  a  deceased  witness  testified  on  a  former  trial 
between  the  same  parties,  in  a  case  where  the  same  question  was  in  issue,  seems  now 
well  established  in  this  commonwealth  by  authorities.  It  was  fully  considered  in  the 
case  of  Commonwealth  v.  Richards,  18  Pick.  434.  The  principle  on  which  this  rule 
rests  was  accurately  stated,  the  cases  in  support  of  it  were  referred  to,  and  with  the  de- 
cision of  which  we  see  no  cause  to  be  dissatisfied.  The  general  rule  is,  that  one  person 
cannot  be  heard  to  testify  as  to  what  another  person  has  declared,  in  relation  to  a  fact 
within  his  knowledge,  and  bearing  upon  the  issue.  It  is  the  familiar  rule  which  ex- 
cludes hearsay.  The  reasons  are  obvious,  and  they  are  two;  first,  because  the  aver- 
ment of  fact  does  not  come  to  the  jury  sanctioned  by  the  oath  of  the  party  on  whose 
knowledge  it  is  supposed  to  rest ;  and  secondly,  because  tlie  party  upon  whose  inter- 
ests it  is  brought  to  bear  has  no  opportunity  to  cross-examine  him  on  whose  supposed 
knowledge  and  veracity  the  truth  of  the  fact  depends.  Now  the  rule,  which  admits 
evidence  of  what  another  said  on  a  former  trial,  must  effectually  exclude  both  of  these 
reasons.  It  must  have  been  testimony  ;  that  is,  the  affirmation  of  some  matter  of  fact 
under  oath  ;  it  must  have  been  in  a  suit  between  the  same  parties  in  interest,  so  as  to 
make  it  sure  that  the  party,  against  whom  it  is  now  offered,  had  an  opportunity  to 
cross-examine  ;  and  it  must  have  been  upon  the  same  subject-matter,  to  show  that  his 
attention  was  drawn  to  points  now  deemed  important.  It  must  be  the  same  testimony 
which  the  former  witness  gave,  because  it  comes  to  the  jury  under  the  sanction  of  his 
oath,  and  the  jury  are  to  weigh  the  testimony  and  judge  of  it,  as  he  gave  it.  The 
witness,  therefore,  must  be  able  to  state  the  language  in  which  the  testimony  was 
given,  substantially  and  in  all  material  particulars,  because  that  is  the  vehicle  by 
which  the  testimony  of  the  witness  is  transmitted,  of  which  the  jury  are  to  judge.  If 
it  were  otherwise,  the  statement  of  the  witness,  which  is  ottered,  would  not  be  of  the 
testimony  of  the  former  witness  ;  that  is,  of  the  ideas  conveyed  bj'  the  former  witness, 
in  the  language  in  which  he  embodied  them  ;  but  it  would  lie  a  statement  of  the  pres- 
ent witness's  understanding  and  comprehension  of  those  ideas,  expressed  in  language 
of  his  own.  Those  ideas  may  have  been  misunderstood,  modified,  perverted,  or  colored, 
by  passing  through  the  mind  of  the  witness,  by  his  knowledge  or  ignorance  of  the 
subject,  or  the  language  in  which  the  testimony  was  given,  or  by  his  own  jn-ejudices, 
predilections,  or  habits  of  thought  or  reasoning.  To  illusti'ate  this  distinction, 
as  we  understand  it  to  be  fixed  by  the  cases  ;  if  a  witness,  remarkable  for  his 
knowledge  of  law,  and  his  intelligence  on  all  other  subjects,  of  great  quickness  of  apjire- 
hension  and  power  of  discrimination,  should  declare  that  he  could  give  the  sul>- 
stance  and  effect  of  a  former  witness's  testimony,  but  could  not  recollect  his  lan- 
guage, we  suppose  he  would  be  excluded  bj'  the  rule.  But  if  one  of  those  remarkable 
men  should  happen  to  have  been  present,  of  great  stolidity  of  mind  upon  most 
subjects,  but  of  extraordinary  tenacity  of  memory  for  language,  and  wlio  would  say 
that  he  recollected  and  could  repeat  all  the  words  uttered  by  the  witness  ;  altliougii 
it  should  be  very  manifest  that  he  himself  did  not  understand  them,  yet  his  testimony 


CHAP.    X.]  WITNESSES   SUBSEQUENTLY   DISQUALIFIED.  239 

of  perjury;  2  and  it  has  been  well  remarked,  that  to  insist  upon  it 
in  other  cases  goes  in  effect  to  exclude  this  sort  of  evidence  alto- 
gether, or  to  admit  it  only  where,  in  most  cases,  the  particularity 
and  minuteness  of  the  witness's  narrative,  and  the  exactness  with 
which  he  undertakes  to  repeat  overy  word  of  the  deceased's  testi- 
mony, ought  to  excite  just  doubts  of  his  own  honesty,  and  of  the 
truth  of  his  evidence.  It  seems,  therefore,  to  be  generally  con- 
sidered sufficient,  if  the  witness  is  able  to  state  the  substance  of 
what  was  sworn  on  the  former  trial. ^  But  he  must  state,  in  sub- 
stance, the  whole  of  what  was  said  on  the  particular  subject 
which  he  is  called  to  prove.  If  he  can  state  only  what  was  said 
on  that  subject  by  the  deceased,  on  his  examination  in  chief, 
without  also  giving  the  substance  of  what  he  said  upon  it  in 
his  cross-examination,  it  is  inadmissible.'*  (b) 

§  166.  Mode  of  proof.  What  the  deceased  witness  testified 
may  be  proved  by  anij  person  who  will  swear  from  his  own  mem- 
ory;  (a)  or  by  notes  taken  by  any  person  who  will  swear  to  their 

would  be  admissible.  The  witness  called  to  prove  former  testimony  must  be  able  to 
satisfy  one  other  condition  ;  namely,  that  he  is  able  to  state  all  that  the  witness  tes- 
tified on  the  former  trial,  as  well  upon  the  direct  as  the  cross-examination.  Tlie  reason 
is  obvious.  One  part  of  his  statement  may  be  qualified,  softened,  or  colored  by  another. 
And  it  would  be  of  no  avail  to  the  party  against  whom  the  witness  is  called  to  state  the 
testimony  of  the  former  witness,  that  he  has  liad  the  right  and  opportunity  to  cross- 
examine  that  former  witness,  with  a  view  of  diminishing  the  weight  or  impairing  the 
force  of  that  testimony  against  him,  if  the  whole  and  entire  result  of  that  cross-exam- 
ination does  not  aocomiiany  the  testimony.  It  may,  perhaps,  be  said,  that,  with  these 
restrictions,  the  rule  is  of  little  value.  It  is  no  doubt  true,  that,  in  most  cases  of  com- 
plicated and  extended  testimony,  the  loss  of  evidence,  by  the  decease  of  a  witness,  can- 
not be  avoided.  But  the  same  result  follows,  in  most  cases,  from  the  decease  of  a  wit- 
ness whose  testimony  has  not  been  preserved  in  some  of  the  modes  provided  by  law. 
But  there  are  some  cases  in  which  the  rule  can  be  usefully  applied,  as  in  case  of  testi- 
mony embraced  in  a  few  words,  — -such  as  proof  of  demand  or  notice,  on  notes  or  bills, 
—  cases  in  which  large  amounts  are  often  involved.  If  it  can  he  used  in  a  few  cases, 
consistently  with  the  true  and  sound  principles  of  the  law  of  evidence,  there  is  no  rea- 
son for  rejecting  it  altogether.  At  the  same  time,  care  should  be  taken  so  to  ay)ply 
and  restrain  it,  that  it  may  not,  under  a  plea  of  necessity,  and  in  order  to  avoid  hard 
cases,  be  so  used  as  to  violate  those  principles.  It  is  to  be  recollected,  that  it  is  an  ex- 
ception to  tlie  gi^neral  rule  of  evidence,  supposed  to  be  extremely  important  and  neces- 
sary ;  and  unless  a  case  is  brought  fully  within  the  reasons  of  such  exceptions,  the  gen- 
eral rule  must  prevail."  See  6  Met.  264-266.  See  also  Marsh  v.  Jones,  21  Vt.  378. 
■■^  Rex  V.  Rowley,  1  Mood.  Cr.  Cas.  111. 

*  See  Cornell  v.  Green,  10  Serg.  &  R.  14,  16,  where  this  point  is  briefly  but  power- 
fully discussed  by  Mr.  Justice  Gibson.  See  also  Miles  ;;.  O'Hara,  4  Binn.  108  ;  Caton 
XK  Lenox,  5  Randolph,  31,  36  ;  Rex  v.  Rowley,  1  Mood.  Cr.  C.  Ill  ;  Chess  v.  Chess, 
17  Serg.  &  R.  409,  411,  412  ;  Jackson  v.  Bailey,  2  Johns.  17  ;  2  Kuss.  on  Crimes,  638, 
[683],  (3d  Am.  ed.) :  Sloan  v.  Somers,  1  Spencer,  66  ;  Garrott  v.  Johnson,  11  G.  k  J. 
173  ;  Canney's  Case,  9  Law  Rep.  408  ;  State  i'.  Hooke^r,  17  Vt.  658  ;  Gildersleeve  v. 
Caraway,  10  Ala.  260  ;  Gould  v.  Crawford,  2  Barr,  89  ;  Wagers  v.  Dickey,  17  Ohio, 
439. 

*  Wolf  u.  Wyeth,  11  Serg.  &  R.  149  ;  Gildersleeve  v.  Caraway,  10  Ala.  260. 

(h)  Wade  u.  State,  7  Baxt.  (Tenn.)80  ;  (a)  So,  it  has  been  proved  by  a  short- 

Woods  V.  Keys,  14  Allen  (Mass.),  236  ;  hand  writer  who  testified  from  his  recol- 
Black  V.  Woodron,  39  Md.  194.  lection  of  the  evidence  (Moore  t'.  Moore,  39 


240  LAW   OP   EVIDENCE.  [PART    II. 

accuracy ; '  (h)  or,  perhaps,  from  the  necessity  of  the  case,  by  the 
jud(je*s  oivn  notes,  where  both  actions  are  tried  before  the  same 
judge ;  for,  in  such  case,  it  seems  the  judge,  from  his  position, 
as  well  as  from  other  considerations,  cannot  be  a  witness. ^  But, 
except  in  this  case  of  necessity,  if  it  be  admitted  as  such,  the 
better  opinion  is,  that  the  judge's  notes  are  not  legal  evidence  of 
what  a  witness  testified  before  him ;  for  they  are  no  part  of  the 
record,  nor  is  it  his  official  duty  to  take  them,  nor  have  they  the 
sanction  of  his  oath  to  their  accuracy  or  completeness.'^  (c)     But 

1  Mayor  of  Doncaster  v.  Day,  3  Taunt.  262  ;  Chess  v.  Chess,  17  Serg.  &  R.  409. 
The  witness,  as  has  been  stated  in  a  preceding  note,  must  be  able  to  testify,  from  liis 
recollection  alone,  that  deceased  was  sworn  as  a  witness,  the  matter  or  thing  which  he 
was  called  to  prove,  and  the  substance  of  what  he  stated  ;  after  which  his  notes  may  be 
admitted.     Sloan  v.  Somers,  1  Spencer  (N.  J.),  66  ;  supra,  §  165,  n.  (2). 

2  Glassford  on  Evid.  602  ;  Tait  on  Evid.  432  ;  Regina  o.  Gazard,  8  C.  &  P.  595  ; 
infra,  §  249. 

3  Miles  V.  O'Hara,  4  Binn.  108  ;  Foster  v.  Shaw,  7  Serg.  &  R.  156  ;  Ex  parte  Lear- 
mouth,  6  Madd.  113  ;  Reg.  v.  Plummer,  8  Jur.  922,  per  Gurney,  B.  ;  Livingston  v. 
Co.x,  8  Watts  &  Serg.  61.  Courts  expressly  disclaim  any  power  to  comy)el  the  produc- 
tion of  a  judge's  notes.  Scougull  v.  Campbell,  1  Chitty,  283;  Graham  v.  Bowham, 
Id.  284,  n.  And  if  an  application  is  made  to  amend  a  verdict  by  the  judge's  notes,  it 
can  be  made  only  to  the  judge  himself  before  whom  the  trial  was  had.  Id.,  2  Tidd's 
Pr.  770,  933.  Where  a  ])arty,  on  a  new  trial  being  granted,  procured,  at  great  expense, 
copies  of  a  short-hand  writer's  notes  of  the  evidence  given  at  the  former  trial,  for  the 
amount  of  which  he  claimed  allowance  in  the  final  taxation  of  costs  ;  the  claim  was 
disallowed,  except  for  so  much  as  would  liave  been  the  expense  of  waiting  on  the  judge, 
or  his  clerk,  for  a  copy  of  his  notes  ;  on  the  ground  that  the  latter  would  have  sufficed. 
Crease  v.  Barrett,  1  Tyiw.  &  Grang.  112.  But  this  decision  is  not  conceived  to  afl'ect 
the  question,  whether  the  judge's  notes  would  have  been  admissible  before  another 
judge,  if  objected  to.  In  Regina  v.  Bird,  5  Cox,  C.  C.  11,  2  Eng.  Law  &  Eq.  444,  the 
notes  of  the  judge,  before  whom  a  former  indictment  had  been  tried,  were  admitted 
without  objection,  for  the  purpose  of  showing  what  beatings  were  proved  at  that  trial, 
in  order  to  support  the  yilea  of  autrefois  acquit.  In  New  Brunswick,  a  judge's  notes 
have  been  held  admissible,  though  objected  to,  on  the  ground  that  they  were  taken 
under  the  sanction  of  an  oath,  and  that  such  has  been  the  practice.  Doe  v.  Murray, 
1  Allen,  N.  B.  216.  But  in  a  recent  case  in  England,  on  a  trial  for  perjury,  the  notes 
of  the  judge,  before  whom  the  false  evidence  was  given,  being  offered  in  proof  of  that 
part  of  the  case,  Talfourd,  .!.,  refused  to  admit  them  ;  observing,  that  "  a  judge's  notes 
stood  in  no  other  position  than  anyliody  else's  notes.  They  could  only  be  used  to  re- 
fresh the  memory  of  the  party  taking  them.  It  was  no  doubt  unusual  to  yiroduce  the 
judge  as  a  witness,  and  would  be  highly  inconvenient  to  do  so  ;  but  that  did  not  make 
his  notes  evidence."     Regina  v.  Child,  5  Cox,  C.  C.  197,  203. 

Iowa,  461)  ;  by  a  juror  who  testified  from  Wend.   (N.   Y.)  193;    Jones  v.   Ward,  3 

memory  (HutchingSD.  Corgan,  59  111.  70)  ;  Jones  (N.  C),   L.  24. 

by  the  committing  magistrate   (Wade  v.  (c)  Attempts  have  been  made  in  several 

State,   7  Baxt.  (Tenn.)  80)  ;    by  any  one  cases  to  introduce  on  the  second  trial  of  a 

who  heard   the  witness.     Ruch   v.   Rock  case,  the  evidence  of  witnesses  as  contained 

Island,  97  U.  S.  693.  in  bills  of  exceptions  signed  l\y  the  trial 

{h)  People   V.   Murphy,   45    Cal.    137;  justice  at  the  j)revious  trial,  but  it  has  been 

Yale   V.    Conistock,    112    Mass.    267.     It  uniformly   rejected.     Elgin  v.   Welch,   23 

seems  that  if  counsel  agree  on  the  testi-  111.  App.  185  ;  Leeser  v.  Boekhoff,  38  Mo. 

mony,  the   identification   by  oath   is   un-  App.  445.     Although  it  is  held  in  one  case 

necessary.     Jackson  v.  Jackson,  47  Ga.  99;  that  if  the  testimony  of  a  deceased  witness 

Earl   V.    Tupper,    45    Yt.    275  ;    Nutt  v.  is  thus  preserved,  it  may  be  read  in  evi- 

Thompson,   69  N.   C.    548  ;    Coughlin   v.  dence,  this  being  an  exception  to  the  gen- 

llaeussler,  50  Mo.  126  ;  Rhine  v.   Robin-  eral  rule.     CougLlin  v.  Haeussler,  50  Mo. 

son,  27    Pa.   St.  30  ;   Clark  v.  Vorce,  15  126. 


CHAP.    X.]  WITNESSES   SUBSEQUENTLY   DISQUALIFIED.  241 

in  chancery,  when  a  new  trial  is  ordered  of  an  issue  sent  out  of 
chancery  to  a  court  of  common  law,  and  it  is  suggested  that  some 
of  the  witnesses  in  the  former  trial  are  of  advanced  age,  an  order 
may  be  made,  that,  in  the  event  of  their  death  or  inability  to 
attend,  their  testimony  may  be  read  from  the  judge's  notes.* 

§  107.  When  interest  is  subsequently  acquired.  The  effect  of  an 
interest  subsequentl/j  acquired  (a)  by  the  witness,  as  laying  a  f(jun- 
dation  for  the  admission  of  proof  of  his  former  testimony,  remains 
to  be  considered.  It  is  in  general  true,  that  if  a  person  who  has 
knowledge  of  any  fact,  but  is  under  no  obligation  to  become  a 
witness  to  testify  to  it,  should  afterwards  become  interested  in 
the  sul)ject-matter  in  which  that  fact  is  involved,  and  his  interest 
should  be  on  the  side  of  the  party  calling  him,  he  would  not  be 
a  competent  witness  until  the  interest  is  removed.  If  it  is  re- 
leasable  by  the  party,  he  must  release  it.  If  not,  the  objection 
remains :  for  neither  is  the  witness  nor  a  third  person  compellable 
to  give  a  release ;  though  the  witness  may  be  compelled  to  re- 
ceive one.  And  the  rule  is  the  same  in  regard  to  a  subscribing 
witness,  if  his  interest  was  created  by  the  act  of  the  party  calling 
him.  Thus,  if  the  charterer  of  a  ship  should  afterwards  com- 
municate to  the  subscribing  witness  of  the  charter-party  an  in- 
terest in  the  adventure,  he  cannot  call  the  witness  to  prove  the 
execution  of  the  charter-party:  nor  will  proof  of  his  handwriting 
be  received;  for  it  was  the  party's  own  act  to  destroy  the  evi- 
dence. ^  It  is,  however,  laid  down,  that  a  witness  cannot,  by  the 
subsequent  voluntary  creation  of  an  interest,  without  the  concur- 
rence or  assent  of  the  party,  deprive  him  of  the  benefit  of  his  tes- 
timony. ^  But  this  rule  admits  of  a  qualification,  turning  upon 
the  manner  in  which  the  interest  was  acquired.  If  it  were  ac- 
quired wantonly,  as  by  a  wager,  or  fraudulently,  for  the  purpose  of 
taking  off  his  testimony,  of  which  the  participation  of  the  ad- 
verse party  would  generally  be  proof,  it  would  not  disqualify 
him. 

*  Har£;rave  v.  Hargrave,  10  Jiir.  957. 

1  Hovil  V.  Stephftiison,  5  Bins;.  493  ;  Hamilton  v.  Williams,  1  Hayw.  139  ;  Jolin<?on 
V.  Kniqht,  1  N.  0.  Law,  93  ;  1  Murph.  293  ;  Beiinet  v.  Robison,  3  Stew.  &  Port.  227, 
237  ;  Schall  v.  Miller,  5  Whart.  156. 

2  1  Stark.  Evid.  118  ;  Barlew  v.  Vowell,  Skin.  586;  Genv^e  v.  Pearce,  cited  by 
Buller,  J.,  in  3  T.  R.  37  ;  Rex  v.  Fox,  1  Str.  652  ;  Long  v.  Bailie,  4  Serg.  &  R.  222; 
Burgess  v.  Lane,  3  Gresinl,  165  ;  Jackson  v.  Rurasey,  3  Johns.  Cas.  234,  237  ;  infra,, 
§  418. 

(«)  Under  the  statutes  which  exist  now  It  is  unnecessary,  therefore,  to  consider  the 

in  most  of  the  United  States,  the  fact  that  rules   iiere   laid   down.     See  post,   §  386, 

a  witness  is  interested  no  longer  goes  to  his  notes, 
admissibility,  but  merely  to  his  credibility. 

VOL.    I.  —  16 


242  LAW    OF    EVIDENCE.  [PART    II. 

But  "the  pendency  of  a  suit  cannot  prevent  third  persons  from 
transacting  business,  bona  fide,  with  one  of  the  parties  ;  and,  if  an 
interest  in  the  event  of  the  suit  is  thereby  acquired,  the  common 
consequence  of  law  must  follow,  —  that  the  person  so  interested 
caimot  be  examined  as  a  witness  for  that  party,  from  whose  suc- 
cess he  will  necessarily  derive  an  advantage. "  ^  Therefore,  where, 
in  an  action  against  one  of  several  underwriters  on  a  policy  of 
insurance,  it  appeared  that  a  subsequent  underwriter  had  paid, 
upon  the  plaintiff's  promise  to  refund  the  money,  if  the  defen- 
dant in  the  suit  should  prevail ;  it  was  held,  that  he  was  not  a 
competent  witness  for  the  defendant  to  prove  a  fraudulent  con- 
cealment of  facts  by  the  plaintiff,  it  being  merely  a  payment,  by 
anticipation,  of  his  own  debt,  in  good  faith,  upon  a  reasonable 
condition  of  repayment.'*  And  as  the  interest  which  one  party 
acquires  in  the  testimony  of  another  is  liable  to  the  contingency 
of  being  defeated  by  a  subsequent  interest  of  the  witness  in  the 
subject-matter,  created  bona  fide,  in  the  usual  and  lawful  course 
of  business,  the  same  principle  would  seem  to  apply  to  an  interest 
arising  by  operation  of  law,  upon  the  happening  of  an  uncertain 
event,  such  as  the  death  of  an  ancestor,  or  the  like.  But  though 
the  interest  which  a  party  thus  acquires  in  the  testimony  of  an- 
other is  liable  to  be  affected  by  the  ordinary  course  of  human 
affairs,  and  of  natural  events,  the  witness  being  under  no 
obligation,  on  that  account,  either  to  change  the  course  of  his 
business,  or  to  abstain  from  any  ordinary  and  lawful  act  or  em- 
ployment ;  yet  it  is  a  right  of  which  neither  the  witness  nor  any 
other  person  can  by  voluntary  act  and  design  deprive  him. 
Wherever,  therefore,  the  subsequent  interest  of  the  witness  has 
been  created  either  wantonly,  or  in  bad  faith,  it  does  not  exclude 
him ;  and  doubtless  the  participation  of  the  adverse  party  in  the 

3  3  Campb.  381,  per  Ld.  EUetiborough.  The  case  of  Bent  v.  Baker,  3  T.  R.  27, 
seems  to  have  been  determined  on  a  similar  principle,  as  applied  to  the  opposite  state 
of  facts  ;  the  subsequent  interest,  acquired  by  the  broker,  being  regarded  as  affected 
with  bad  faith,  on  the  part  of  the  assured,  who  objected  to  his  admission.  The  dis- 
tinction taken  by  Lord  Ellenborough  was  before  the  Supreme  Court  of  the  United 
States  in  Winship  v.  Bank  of  the  United  States,  5  Peters,  529,  541,  542,  545,  546,  5o2, 
but  no  decision  was  had  upon  the  question,  the  court  being  equally  divided.  But  the 
same  doctrine  was  afterwards  discussed  and  recognized,  as  "  founded  on  the  jilainest 
reasons,"  in  Eastman  v.  Winsliip,  14  Pick.  44;  10  Wend.  162,  164,  ace. 

*  Forrester  v.  Pigou,  3  Campb.  380  ;  s.  c.  1  M.  &  S.  9  ;  Phelps  v.  lliley,  3  Conn.  266. 
In  Burgess  v.  Lane,  3  Greenl.  165,  the  witness  had  voluntarily  entered  into  an  agree- 
ment with  the  defendant,  against  whom  he  had  an  action  pending  in  another  court, 
that  that  action  should  abide  the  event  of  the  other,  in  which  he  was  now  called  as  a 
witness  for  the  plaintilf  ;  and  the  court  held,  that  it  did  not  lie  with  the  defendant,  who 
was  party  to  that  agreement,  to  object  to  his  admissibility.  But  it  is  observable,  that 
that  agreement  was  not  made  in  discharge  of  any  real  or  supposed  obligation,  as  in  For- 
rester V.  Pigou  ;  but  was  on  a  new  subject,  was  uncalled  for,  and  purely  voluntary  ;  and 
therefore  subjected  the  adverse  party  to  the  imputation  of  bad  faith  in  making  it. 


CHAP.    X.]  WITNESSES   SUBSEQUENTLY    DISQUALIFIED.  243 

creation  of  such  interest  would,  if  not  explained  by  other  circum- 
stances, be  very  strong /)rma/ac'/(3  evidence  of  had  faith;  as  an 
act  of  the  witness,  uncalled  for,  and  out  of  the  ordinary  course  of 
business  would  ho  regarded  as  wanton.^ 

§  168.  Previous  deposition.  If,  in  cases  of  disqualifying  in- 
terest, the  witness  has  previously  given  a  deposition  in  the  cause, 
the  deposition  may  be  read  in  chancery,  as  if  he  were  since  de- 
ceased, or  insane,  or  otherwise  incapacitated.  It  may  also  be 
read  in  the  trial,  at  law,  of  an  issue  out  of  chancery.  In  other 
trials  at  law,  no  express  authority  has  been  found  for  reading  the 
deposition ;  and  it  has  been  said,  that  the  course  of  practice  is 
otherwise ;  but  no  reason  is  given,  and  the  analogies  of  the  law 
are  altogether  in  favor  of  admitting  the  evidence.  •  And,  as  it  is 
hardly  possible  to  conceive  a  reason  for  the  admission  of  prior 
testimony  given  in  one  form  which  does  not  apply  to  the  same 
testimony  given  in  any  other  form,  it  would  seem  clearly  to  result 
that  where  the  witness  is  subsequently  rendered  incompetent  by 
interest,  lawfully  acquired,  in  good  faith,  evidence  may  be  given 
of  what  he  formerly  testified  orally,  in  the  same  manner  as  if  he 
were  dead ;  and  the  same  principle  will  lead  us  farther  to  con- 
clude, that  in  all  cases  wliere  the  party  has,  without  his  own 
fault  or  concurrence,  irrecoverably  lost  the  power  of  producing  the 
witness  again,  whether  from  physical  or  legal  causes,  he  may 
offer  the  secondary  evidence  of  what  he  testified  in  the  former 
trial.  If  the  lips  of  the  witness  are  sealed,  it  can  make  no  dif- 
ference in  principle,  whether  it  be  by  the  finger  of  death,  or  the 
finger  of  the  law.  The  interest  of  the  witness,  however,  is  no 
excuse  for  not  producing  him  in  court ;  for  perhaps  the  adverse 
party  will  waive  any  objection  on  that  account.  It  is  only  when 
the  objection  is  taken  and  allowed,  that  a  case  is  made  for  the 
introduction  of  secondary  evidence. 

^  See  infra,  §  418,  where  the  subject  is  again  considered. 

1  This  is  now  the  established  practice  in  chancery,  Gresley  on  Evid.  366,  367  :  and 
in  Chess  v.  Chess,  17  Serg.  &  R.  412,  it  was  conceded  by  Tod,  J.,  that  the  reason  and 
principle  of  the  rule  applied  with  equal  force  in  trials  at  law ;  though  it  was  deemed 
in  that  case  to  have  been  settled  otherwise,  by  the  course  of  decisions  in  Pennsylvania. 
See  also  1  Stark.  Evid.  264,  265;  1  Smitli's'Chan.  Pr.  344;  Gosse  v.  Tracy,  1  P.  W. 
287  ;  s.  c.  2  Vern.  699  ;  Andrews  v.  Palmer,  1  Ves.  &  B.  21  ;  Luttrell  v.  Keynell,  1 
Mod.  284  ;  Jones  v.  Jones,  1  Cox,  Ch.  R.  184  ;  Union  Bank  v.  Knapp,  3  Pick.  108, 
109,  per  Putnam,  J.  ;  Wafer  v.  Uemken,  9  Ptob.  (La.)  203.  See  also  Scammon  v. 
Scammon,  33  N.  H.  52,  58. 


244  LAW   OP   EVIDENCE.  [PART   II. 


CHAPTER   XL 

OF   ADMISSIONS. 

§  169.  Admissions  and  confessions.  Under  the  head  of  excep- 
tion to  the  rule  rejecting  hearsay  evidence,  it  has  been  usual  to 
treat  of  admissions  and  confessions  by  the  party,  considering  them 
as  declarations  against  his  interest,  and  therefore  probably  true. 
But  in  regard  to  many  admissions,  and  especially  those  implied 
from  conduct  and  assumed  character,  it  cannot  be  supposed  that 
the  party,  at  the  time  of  the  principal  declaration  or  act  done, 
believed  himself  to  be  speaking  or  acting  against  his  own  inter- 
est ;  but  often  the  contrary,  (a)  Such  evidence  seems,  therefore, 
more  properly  admissible  as  a  substitute  for  the  ordinary  and 
legal  proof,  either  in  virtue  of  the  direct  consent  and  waiver  of 
the  party,  as  in  the  case  of  explicit  and  solemn  admissions;  or 
on  grounds  of  public  policy  and  convenience,  as  in  the  case  of 
those  implied  from  assumed  character,  acquiescence,  or  conduct. ^ 
It  is  in  this  light  that  confessions  and  admissions  are  regarded 
by  the  Roman  law,  as  is  stated  by  Mascardus.  "  Illud  igitur  in 
primis,  ut  hinc  potissimum  exordiar,  non  est  ignorandum,  quod 
etsi  confessioni  inter  probationum  species  locum  in  pra^sentia 
tribuerimus;  cuncti  tamen  fere  Dd.  unanimes  sunt  arbitrati, 
ipsam  potius  esse  ab  onere  probandi  relevationcm  quam  proprie 
probationem. "  ^    Many  admissions,  however,  being  made  by  third 

1  See  supra,  §  27. 

2  Mrtsoard.  De  Probat.  vol.  i.  Quffist,  7,  n.  1,  10,  11  ;  Meiiochius,  De  Prasump. 
lib.  1,  Quaes.  62,  ii.  6  ;  Alciatus,  De  Piassurap.  pars  2,  n.  4.  The  Roman  law  dis- 
tinguishes, with  great  clearness  and  precision,  between  confessions  extra  judicium,  and 
confessions  in  judicio;  treating  the  former  as  of  very  little  and  often  of  no  weight 
unless  corroborated,  and  the  latter  as  generally,  if  not  always,  conclusive,  even  to  the 
overthrow  of  the  prccsumptio  juris  et  de  jure ;  thus  constituting  an  exception  to  the 
conclusiveness  of  this  class  of  presumptions.  But  to  give  a  confession  this  effect, 
certain  things  are  essential,  which  Mascardus  cites  out  of  Tancred  :  — 

"Major,  spont^,  sciens,  contra  se,  ubi  jus  fit: 
Nee  natura,  favor,  lis  jusve  repugnet,  et  hostis." 

Mascard.  uli  sup.,  n.  15.     Vid.  Dig.  lib.  42,  tit.  2,  de  Confessis ;   Cod.  lib.  7,  tit.  59  ; 
Van  Leeuwen's  Comm.,  book  y.  c.  21. 

(«)  The  question  whether  the  adrais-  admis.sion  of  a  marriage,  if  it  is  made  un- 

sion  id  against  the  interest  of   the  party  der  circumstances  showing  it  to  be  against 

must  be  decided  by  the  Court,  as  all  other  interest,  is  evidence  of  the  marriage  against 

preliminary  questions  of  the  admissibility  tlie    person    malcing    it.      Greenawalt   v. 

of  evidence,  and  their  decision  must  depend  McEnelley,    85   Pa.    St.    352;    Forney   v. 

upon  the  evidence  in  each  case.     Thus,  an  Hallacher,  8  S.  &  R.  159. 


CHAP.    XI.]  OP    ADMISSIONS.  245 

persons,  are  receivable  on  mixed  grounds ;  partly  as  belonging  to 
tlie  res  (/estce,  partly  as  made  against  the  interest  of  the  person 
making  them,  and  ])artly  because  of  some  privity  with  him  against 
whom  they  are  offered  in  evidence.  The  whole  subject,  there- 
fore, properly  falls  under  consideration  in  this  connection. 

§  170.  Distinguished.  In  our  law,  the  term  admission  is  usually 
applied  to  civil  transactions,  and  to  those  matters  of  fact,  in  crimi- 
nal cases,  which  do  not  involve  criminal  intent;  the  term  confes- 
sion being  generally  restricted  to  acknowledgments  of  guilt.  We 
shall  therefore  treat  them  separately,  beginning  with  admis- 
sions. The  rules  of  evidence  are  in  both  cases  the  same.  Thus, 
in  the  trial  of  Lord  Melville,  charged,  among  other  things,  with 
criminal  misapplication  of  moneys,  received  from  the  exchequer, 
the  admission  of  his  agent  and  authorized  receiv'er  was  held 
sufficient  proof  of  the  fact  of  his  receiving  the  public  money ;  but 
not  admissible  to  establish  the  charge  of  any  criminal  misapjdica- 
tion  of  it.  The  law  was  thus  stated  by  Lord  Chancellor  Erskine: 
"This  first  step  in  the  proof"  (namely,  the  receipt  of  the  money) 
"must  advance  by  evidence  applicable  alike  to  civil  as  to  crimi- 
nal cases ;  for  a  fact  must  be  established  by  the  same  evidence, 
whether  it  is  to  be  followed  by  a  criminal  or  civil  consequence; 
but  it  is  a  totally  different  question,  in  the  consideration  of  crimi- 
nal as  distinguished  from  civil  justice,  how  the  noble  person  now 
on  trial  may  be  affected  by  the  fact  when  so  established.  The 
receipt  by  the  paymaster  would  in  itself  involve  him  civilly,  but 
could  by  no  possibility  convict  him  of  a  crime." ^ 

§  171.  Parties  to  the  record  and  privies.  We  shall  first  con- 
sider the  person  whose  admissions  may  be  received.  And  here 
the  general  doctrine  is,  that  the  declarations  of  a  party  to  the 
record^  or  of  one  identified  in  interest  with  him,  are,  as  against  such 
party,  admissible  in  evidence.  ^  (a)     If  they  proceed  from  a  stran- 

'  29  Howell's  State  Trials,  col.  764. 

1  Spargo  i;.  Brown,  9  B.  &  C.  935,  per  Bayley,  J.  ;  infra,  §§  180,  20.3.  In  the 
court  of  chancery,  in  England,  evidence  is  not  received  of  admissions  or  declarations  of 

(a)  The  question  how  far  statements  If  the  pleadings  are  signed  and  filed  by 
made  by  a  party  to  a  suit  in  pleadings  the  attorney,  without  apparently  being 
filed  by  him  or  his  attorney  in  previous  brought  to  the  party's  attention,  it  is  gen- 
cases  are  admissible  in  evidence  against  erally  held  that  such  pleadings  are  not 
him  is  not  one  free  from  doubt.  The  test  evidence  in  another  case  against  the  party, 
which  seems  most  satisfactory  to  apply  is  Denuie  v.  Williams,  135  Mass.  28  ;  Wil- 
the  inquiry  whether,  under  the  circum-  kins  v.  Stidger,  22  Cal.  239  ;  Harrison  v. 
stances,  the  party  against  whom  the  ad-  Baker,  5  Litt.  (Ivy.)  250;  Elting  v.  Si-ott,  2 
missions  are  offered  can  fairly  be  supposed  .Johns.  (N.Y.)  157;  Meade  ?;.  Black, 22  Wis. 
to  have  had  personal  knowledge  of  making  232  ;  Tabb  v.  (,'abell,  17  Graft.  (Va. )  160; 
of  the  admissions  in  the  pleadings  at  the  Hobson  v.  Ogden,  16  Kans.  388.  And  plead- 
time  the  pleadings  were  drawn  or  filed,  ings  which  are  general  and  formal  in  their 


246 


LAW   OF   EVIDENCE. 


[part  II. 


ger,  and  cannot  be  brought  home  to  the  party,  they  are  inadmis- 

the  parties,  which  are  not  i)ut  in  issue  by  the  jileadings,  and  which  there  was  not, 
therefore,  any  opportunity  of  explaining  or  disproving.  Copland  v.  Toulmin,  7  Clark 
&  Fin.  350,  373  ;  Austin  v.  Chamber,  6  Clark  &  Fin.  1  ;  Attwood  v.  Small,  Id.  234. 
But  in  the  United  States  this  rule  has  not  been  adopted  ;  and  it  is  deemed  suffiiient  if 
tile  proposition  to  be  established  is  stated  in  the  bill,  without  stating  the  paiticular 
kind  of  evidence  by  which  it  is  to  be  proved.  See  Smith  v.  Burnham,  2  Sumn.  612  ; 
Brandon  v.  Cabiness,  10  Ala.  156;  Story,  Equity  Plead.  265  a,  and  n.  (1),  where  this 
subject  is  fully  discussed.  And  in  England,  the  rule  has  recently  been  qualified,  so  far 
as  to  admit  a  written  admission  by  the  defendant  of  his  liability  to  the  plaintiff,  in  the 
matter  of  tile  pending  suit.  Malcolm  v.  Seott,  3  Hare,  63;  McMahon  v.  Burchell,  ] 
Coop.  Cas.  temp.  Cottenham,  475  ;  7  Law  Rev.  209.  See  the  cases  collected  by  Mr. 
Cooper  in  his  note  appended  to  that  cas'e.  It  seems,  that  pleadings,  whether  in  equity 
or  at  common  law,  are  not  to  be  treated  as  positive  allegations  of  the  truth  of  the  facts 
therein  stated,  for  all  purposes  ;  but  only  as  statements  of  the  case  of  the  party,  to 
be  admitted  or  denied  by  the  opposite  side,  and,  if  denied,  to  be  proved,  and  ulti- 
mately to  be  submitted  to  judicial  decision.     Boileau  v.  Rutlin,  2  Exch.  665. 


nature,  not  containing  specific  allegations 
of  fact,  and  which  are  signed  by  the  attor- 
ney and  are  not  shown  to  have  been  sjie- 
cially  brought  to  the  attention  of  the 
party  in  whose  behalf  they  were  made, 
are  not  receivable  in  other  cases  as  admis- 
sions of  the  party  for  whom  they  are  filed 
(Delaware  County  v.  Diebohl  Safe  Co.,  133 
U.  S.  487  ;  Combs  v.  Hodge,  21  How. 
397;  Pope  v.  Allis,  115  U.  S.  363;  Dennie 
V.  Williams,  supra)  ;  the  presumption 
being  that  the  pleading  is  not  known  to 
the  party  in  whose  behalf  it  was  filed  ; 
but  if  the  pleadings  are  shown  to  have 
been  drawn  by  the  express  direction  of 
the  party  in  whose  behalf  they  are  filed, 
and  any  statements  of  fact  therein  con- 
tained to  have  been  inserted  by  his  direc- 
tion or  with  his  assent,  the  pleadings  are 
admissions  of  the  facts  therein  contained  as 
against  such  a  party  in  subsequent  cases. 
Wilkins  v.  Stidger,  22  Cal.  239  ;  Nichols 
V.  Jones,  32  Mo.  App.  664;  Murphy  v.  St. 
Louis  Type  Foundry,  29  Mo.  App.  545  ; 
and  see  cases  supra.  There  are  dicta  in 
several  States  that  a  plea<ling,  even  though 
signed  by  the  attorney,  is  presumed  to  be 
known  to  the  party  in  whose  behalf  it  is 
made,  and  is  to  be  regarde<l  as  an  admis- 
sion of  the  facts  therein  stated.  Coward 
V.  Clauton,  79  Cal.  29  ;  Rich  v.  Minne- 
apolis, 40  Minn.  84  ;  Vogel  v.  Osborne,  32 
Minn.  167  ;  Murphy  v.  St.  Louis  Typo 
Foundry,  supra  ;  Bailey  v.  O'Bannon,  28 
Mo.  App.  46.  But  this  is  not  the  better 
rule.  The  true  rule  is  that  formal  allega- 
tions are  presumed  to  be  madc^  by  the  at- 
torney on  general  instructions  and  without 
the  Y^ersonal  knowledge  of  the  client,  but 
particular  and  specific  allegations  of  mat- 
ters of  action  or  defence,  which  cannot  be 
presumed  to  have  been  made  under  the 
general  authority  of  the  attorney,  but 
under  specific  instructions  to  him   from 


the  client,  are  competent  evidence  against 
the  client.  Dennie  v.  Williams,  supra  ; 
Johnson  v.  Russell,  144  Mass.  409.  If 
the  pleadings  in  question  were  sworn  to 
by  the  party  in  whose  behalf  they  were 
filed,  this  fact  is  evidence  that  they  were 
drawn  with  his  knowledge  of  the  facts 
therein  stated  and  consequently  admissible 
against  him  in  other  cases.  Cook  v.  Barr, 
44  N.  Y.  156  ;  Murphy  v.  St.  Louis  Type 
Foundry,  supra.  Similarly,  an  answer  of 
the  trustee  in  a  trustee  suit  may  be  ad- 
missible against  the  trustee  filing  it  in  a 
subsequent  suit.  Eaton  v.  Teleg.  Co.,  68 
Me.  6.3.  So,  answers  of  a  party  to  inter- 
rogatories filed  in  the  ordinary  mode  of 
practice  are  competent  evidence  against 
the  party  making  the  answers  in  a  subse- 
quent suit.  Williams  v.  Cheney,  3  Gray 
(Mass.),  215;  Judd  v.  Gibbs,  3  Gray 
(Mass.),  539.  See,  also,  Church  v.  Shi-l- 
ton,  2  Curtis  C.  C.  271  ;  State  v.  Little- 
field,  3  R.  I.  124.  The  fact  that  the 
pleadings  offered  in  evidence  were  made 
in  a  suit  in  another  State  does  not  affect 
their  admissibility.  Buzard  v.  McAnulty, 
77  Tex.  445.  Admissions  of  fact  made  in 
a  law  brief  for  the  purposes  of  arguing  the 
case  before  the  law  couit,  are  not  under 
ordinary  circumstances  admissions  of  those 
facts  which  bind  the  attorney  or  party 
making  them,  though  if  the  statements 
therein  appear  to  be  made  from  directions 
of  the  client  and  from  his  personal  knowl- 
edge they  may  have  the  effect  of  admis- 
sions.    Wood  V.  Graves,  144  Mass.  365. 

A  similar  question  arises  as  to  whether 
pleadings  are  evidence  in  the  suit  in 
which  they  are  filed.  Generally  they  are 
not.  This  is  sometimes  enacted  by  stat- 
ute and  sometimes  is  arrived  at  by  deci- 
sions of  court,  pleadings  being  regarded, 
so  far  as  the  suits  in  which  thev  are  filed 
are  concerned,   as  mere  formulas  for  the 


CHAP.    XI.]  OF   ADMISSIONS.  247 

sible,  unless  upon  some  of  the  other  grounds  already  considered.''* 
Thus,  the  admissions  of  a  payee  of  a  negotiable  jjrcjinissory  note, 
not  overdue  when  negotiated,  cannot  be  received  in  an  action  by 
the  indorsee  against  the  maker,  to  impeach  the  consideration, 
there  being  no  identity  of  interest  between  him  and  the  plaintiff. ^ 
§  172.  Parties  jointly  interested.  This  general  rule,  admitting 
the  declarations  of  a  party  to  the  record  in  evidence,  applies  to 
all  cases  where  the  party  has  any  interest  in  the  suit,  whether 
others  are  joint  parties  on  the  same  side  with  him  or  not,  and 
howsoever  the  interest  may  appear,  and  whatever  may  be  its  rela- 
tive amount.^  But  where  the  party  sues  alone,  and  has  no  inter- 
est in  the  matter,  his  name  being  used,  of  necessity,  by  one  to 
whom  he  has  assigned  all  his  interest  in  the  subject  of  the  suit, 
though  it  is  agreed  that  he  cannot  be  permitted,  by  his  acts  or 
admissions,  to  disparage  the  title  of  his  innocent  assignee  or 
vendee,  yet  the  books  are  not  so  clearly  agreed  in  the  mode  of 
restraining  him.  That  chancery  will  always  protect  the  assignee, 
either  by  injunction  or  otherwise,  is  very  certain;  and  formerly 
this  was  the  course  uniformly  pursued ;  the  admissions  of  a  party 
to  the  record,  at  common  law,  being  received  against  him  in  all 

2  Supra,  §§  128,  141,  147,  156.  There  must  be  some  evidence  of  the  identity  of  the 
person  whose  admissions  are  offered  in  evidence  with  the  party  in  question.  Thus, 
where  the  witness  asked  for  the  defendant  by  name,  at  his  lodgings,  and  a  person 
came  to  the  door  professing  to  be  the  one  asked  for  ;  the  witness  being  unacquainted 
with  the  defendant's  person  then  and  since  ;  this  was  held  sufficient  to  admit  the  con- 
versation which  then  was  had  between  the  witness  and  this  person,  as  being,  i^rima 
facie,  the  language  of  the  defenrlant.     Reynolds  v.  Staines,  2  C.  &  K.  745. 

3  Barough  v.  White,  4  B.  «&  C.  325  ;  liristol  v.  Dann,  12  Wend.  142. 

^  Bauerman  v.  Radenius,  7  T.  R.  663  ;  s.  c.  2  Esp.  653.  In  this  case  the  consignees 
brought  an  action  in  the  name  of  the  consignor  against  the  ship-master,  for  a  damage 
to  the  goods,  occasioned  by  his  negligence  ;  and  without  supposing  some  interest  to 
remain  in  the  consignor,  the  action  could  not  be  maintained.  It  was  on  this  ground 
that  Lawrence,  J.,  plai'cd  tlie  decision.  See  also  Nordeu  v.  Williamson,  1  Taunt.  378  ; 
Mandeville  v.  Welch,  5  Wheat.  283,  236  ;  Dan  et  al.  v.  Brown,  4  Cowen,  483,  492. 

solution  of  the  case,  and  to  limit  and  son  v.  McPike,  86  Mo.  301  ;  Murphy  v. 
make  definite  the  issues  to  be  tried  by  the  St.  Louis  Type  Foundry,  supra.  See 
jury.  Thus,  in  Massachusetts,  they  are  also  ?w.s/,  §  186,  notes, 
not  evidence  in  the  suit  in  which  they  are  A  verdict  in  a  case  may  become  an  ad- 
filed,  but  allegations  whereby  the  party  mission  of  the  facts  upon  which  tlie  case 
making  them  is  bound.  j\Iass.  Pub.  St.  was  founded,  and  admissible  against  the 
c.  167,  §  7^>-  Any  attempt,  tiierefore,  to  party  against  whom  the  verdict  was  ren- 
comnieiit  upon  them  in  argument,  as  for  dered  in  another  case,  by  the  subsequent 
instance,  to  compare  an  original  declara-  declarations  of  the  party  in  favor  of  the 
tion,  or  answer,  with  an  amended  form  of  justice  of  the  verdict.  Thus,  where  on  a 
the  same,  so  as  to  draw  an  inference  to  second  trial  of  a  case,  the  plaintiff  offered 
the  discredit  of  the  i)arty  filing  them,  is  evidence  that  on  the  morning  after  the 
inadmissible.  Phillips  v.  Suiith,  110  verdict  in  the  first  trial,  one  of  the  de- 
Mass.  61  ;  Taft  v.  Fiske,  140  Mass.  250.  fendants  admitted  to  witness  that  the  ver- 
In  Missouri,  however,  the  rule  is  that  diet  was  a  just  and  righteous  one  ;  this 
pleadings  are  evidence  against  the  party  admission  was  held  to  be  evidence  on  the 
making  them  in  the  suit  in  which  they  second  trial  of  the  justice  of  tlie  j^laintifFs 
are  filed  as  well  as  in  other  suits.     Ander-  case.     White  v.  Merrill,  82  Cal.  14. 


248  LAW   OF   EVIDENCE.  [PART  II. 

cases.  But,  in  later  times,  the  interests  of  an  assignee,  suing  in 
the  name  of  his  assignor,  have  also,  to  a  considerable  extent,  been 
protected,  in  the  courts  of  common  law,  against  the  effect  of  any 
acts  or  admissions  of  the  latter  to  his  prejudice.  A  familiar 
example  of  this  sort  is  that  of  a  receipt  in  full,  given  by  the  as- 
signor, being  nominal  plaintiff,  to  the  debtor,  after  the  assign- 
ment ;  which  the  assignee  is  permitted  to  impeach  and  avoid,  in 
a  suit  at  law,  by  showing  the  previous  assignment.  ^ 

§  173.  Nominal  and  real  parties.  But  a  distinction  has  been 
taken  between  such  admissions  as  these  which  are  given  in  evi- 
dence to  the  jury  under  the  general  issue,  and  are  therefore  open 
to  explanation  and  controlling  proof,  and  those  in  77iore  solemn 
form,  such  as  releases  which  are  specially  pleaded  and  operate 
by  way  of  estoppel ;  in  which  latter  cases  it  has  been  held,  that, 
if  the  release  of  the  nominal  plaintiff  is  pleaded  in  bar,  the  courts 
of  law,  sitting  in  bank,  will  administer  equitable  relief,  by  set- 
ting aside  the  plea,  on  motion ;  but  that,  if  issue  is  taken  on  the 
matter  pleaded,  such  act  or  admission  of  the  nominal  plaintiff 
must  be  allowed  its  effect  at  law  to  the  same  extent  as  if  he  were 
the  real  plaintiff  in  the  suit.i  The  American  courts,  however, 
do  not  recognize  this  distinction ;  but,  where  a  release  from  the 
nominal  plaintiff  is  pleaded  in  bar,  a  prior  assignment  of  the 
cause  of  action,  with  notice  thereof  to  the  defendant,  and  an  aver- 
ment that  the  suit  is  prosecuted  by  the  assignee  for  his  own 
benefit,  is  held  a  good  replication.  2  Nor  is  the  nominal  plaintiff' 
permitted  by  the  entry  of  a  retraxit,  or  in  any  other  manner,  in- 
juriously to  affect  the  rights  of  his  assignee  in  a  suit  at  law.^ 

2  Henderson  et  al.  v.  Wild,  2  Campb.  561.  Lord  Ellenborough,  in  a  previous  case 
of  the  same  kind,  thought  himself  not  at  liberty,  sitting  at  Nisi  Prias,  to  overrule  the 
defence.  Alner  v.  George,  1  Campb.  392  ;  Frear  v.  Evertson,  20  Johns.  142.  See  also 
Payne  v.  Rogers,  Doug.  407  ;  Winch  v.  Keeley,  1  T.  B.  619  ;  Cockshot  v.  Bennett, 
2  t.  R.  763  ;  Lane  v.  Chandler,  3  Smith,  77,  83  ;  Skaife  v.  Jackson,  3  B.  &  C.  421  ; 
Appleton  V.  Bovd,  7  IMass.  131  ;  Tiermen  v.  Jackson,  5  Peters,  580  ;  Sargeant  v.  Sar- 
geant,  3  Washb.  371  ;  Head  v.  Shaver,  9  Ala.  791. 

1  Alner  v.  George,  1  Camyib.  395,  per  Ld.  Ellenborough  ;  Gibson  v.  Winter,  5  B.  & 
Ad.  96  ;  Craib  v.  D'Aeth,  7  T.  R.  670,  n.  {b}  ;  Legh  v.  Legh,  1  B.  &  P.  447  ;  Anon.,  1 
Salk.  260  ;  Payne  v.  Rogers,  Doug.  407  ;  Skaife  v.  Jackson,  3  B.  &  C.  421. 

2  Mandeville  v.  Welch,  5  Wheat.  277,  283  ;  Andrews  v.  Beecker,  1  Johns.  Cas.  411; 
Raymond  v.  Squire,  11  Johns.  47  ;  Littlefield  v.  Storey,  3  Johns.  425  ;  Dawson  v. 
Coles,  16  Johns.  51  ;  Kimball  v.  Huntington,  10  Wend.  675  ;  Owings  v.  Low,  5  Gill  & 
Johns.  134. 

3  Welch  V.  Mandeville,  1  Wheat.  233.  "  By  the  common  law,  choses  in  action 
were  not  assignable  except  to  the  crown.  The  "civil  law  considers  them  as,  strictly 
speaking,  not  assignable  ;  but,  by  the  invention  of  a  fiction,  the  Roman  juriscon.sults 
contrived  to  attain  this  object.  The  creditor  who  wished  to  transfer  his  right  of  action 
to  another  person,  constituted  him  his  attorney,  or  procurator  in  rem  suam  as  it  was 
called  ;  and  it  was  stipulated  that  the  action  .should  be  brought  in  the  name  of  the 
assignor,  but  for  the  benetrt  and  at  the  expense  of  the  assignee.  Pothier  de  Vente, 
No.  650.     After  notice  to  the  debtor,  this  assignment  operated  a  complete  cession  of 


CHAP.   XI.]  OF   ADMISSIONS.  249 

§  174.  Parties  jointly  interested.  Though  the  admissions  of  a 
party  to  the  record  arc  generally  receivable  in  evidence  against 
him,  yet,  where  there  are  several  parties  on  the  same  side,  the 
admissions  of  one  are  not  admitted  to  affect  the  others,  who  may 
happen  to  be  joined  with  him,  unless  there  is  some  joint  interest 
of  privity  in  design  between  them ;  ^  (a)  although  the  admissions 
may,  in  proper  cases,  be  received  against  the  person  who  made 
them.  Thus,  in  an  action  against  joint  makers  of  a  note,  if  one 
suffers  judgment  by  default,  his  signature  must  still  be  proved 
against  the  other. ^  And  even  where  there  is  a  joint  interest,  a 
release,  executed  by  one  of  several  plaintiffs,  will,  in  a  clear  case 
of  fraud,  be  set  aside  in  a  court  of  law.^  But  in  the  absence  of 
fraud,  if  the  parties  have  a  joint  interest  in  the  matter  in  suit, 
whether  as  plaintiffs  or  defendants,  an  admission  made  by  one  is, 
in  general,  evidence  against  all. ^(6)     They  stand  to  each  other, 

the  debt,  and  invalidated  a  payment  to  any  other  person  than  the  assignee,  or  a  release 
from  any  other  person  than  him.  Id.  110,  554  ;  Code  Napoleon,  liv.  3,  tit.  6  ;  De  la 
Vente,  c.  8,  §  ItiOO.  The  court  of  chancery,  imitating,  in  its  usual  spirit,  tlie  civil  law 
in  this  particular,  disregarded  the  rigid  stricitness  of  the  common  law,  and  protected  the 
rights  of  the  assignee  of  chuses  in  actiori.  This  liberality  was  at  last  adopted  by  the 
courts  of  common  law,  who  now  consider  an  assignment  of  a  chose  in  action  as  substan- 
tially valid,  only  preserving,  in  certain  cases,  the  form  of  an  action  commenced  in  the 
name  of  the  assignor,  the  beneficial  interest  and  control  of  the  suit  being,  however,  con- 
sidered as  completely  vested  in  the  assignee,  as  procurator  in  rem  siiam.  See  Master 
V.  Miller,  4  T.  R.  340  ;  Andrews  v.  Beecker,  1  Johns.  Cas.  411  ;  Bates  v.  New  York 
Insurance  Company,  3  Johns.  Cas.  242;  Wardell  v.  Eden,  1  Johns.  532,  in  notis ; 
Carver  v.  Tracy,  3  Johns.  427;  Raymond  v.  Sipiire,  11  Johns.  47  ;  Van  Vechten  v. 
Graves,  4  Johns.  406  ;  Weston  v.  Barker,  12  Johns.  276."     See  the  reporter's  note  to 

I  Wheat.  237.  But  where  the  nominal  plaintiff  was  constituted,  by  the  party  in  inter- 
est, his  agent  for  negotiating  the  contract,  and  it  is  expressly  made  with  him  alone,  he 
is  treated,  in  an  action  upon  such  contract,  in  all  respects  as  a  party  to  the  cause  ;  and 
any  defence  against  him  is  a  defence,  in  that  action,  against  the  cestui  que  trust,  suing 
in  his  name.  Theiefore,  where  a  broker,  in  whose  name  a  policy  of  insurance  under 
seal  was  effected,  brought  an  action  of  covenant  thereon,  to  which  payment  was  pleaded; 
it  was  held  that  payment  of  the  amount  of  loss  to  the  broker,  by  allowing  him  credit 
in  account  for  that  sum,  against  a  balance  for  premiums  due  from  him  to  the  defen- 
dants, was  a  good  payment,  as  between  the  plaintiff  on  the  record  and  the  defendants, 
and,  therefore,  an  answer  to  the  action.  Gibson  v.  Winter  et  al.,  5  B.  &  Ad.  96.  This 
case;  however,  may,  with  equal  and  perhaps  greater  propriety,  be  referred  to  the  law  of 
agencv.  See  Richardson  v.  Anderson,  1  Campb.  43,  n.  ;  Story  on  Agency,  §§  413, 
429-434. 

1  See  svrra,  S§  111,  112;  Dan  i'.  Brown,  4  Cowen,  483,  492  ;  Rex  v.   Hardwick, 

II  East,  578,  589,  per  Le  Blanc,  J.  ;  Whitcomb  v.  Whiting,  2  Uoug.  652. 

2  Gray  o.  Palmer,  1  Esp.  135.     See  also  Shirreff  r.  Wilks,  1  East,  48. 

»  Jones  V.  Herbert,  7  Taunt.  421  ;  Loring  v.  Brackett,  3  Pick.  4^3  ;  Skaife  v.  Jack- 
son, 3  B.  &  C.  421  ;  Henderson  v.  Wild,  2  Campb.  561. 

■*  Such  was  the  doctrine  laid  down  by  Ld.  Manslield  in  Whitcomb  v.  Whiting,  2 
Doug.  652.  Its  propriety,  and  the  extent  of  its  application,  have  been  much  discussed 
and  sometimes  questioned  ;  but  it  seems  now  to  be  clearly  established.     See  Perham 

(a)  The  admissions  of  one  of  two  jointly     (c)  ;  Peoples.  English,  52  Cal.  212  ;  State 
indicted,  made  after  the  offence  is  complete     v.  Ah  Tom,  8  Nev.  213. 
and  past,  are  hearsay  as  regards  the  other,  {!>)  Barrick  v.  Austin,  21  Barb.  (N".  Y.) 

and  inadmissible.    "Cf.  ante,  §    111,  note     241;  Camp  r.  Dill,  27  Ala.  553.   Of.  Derby 

V.  Rounds,  53  Cal.  659. 


250  LAW    OF   EVIDENCE.  [PART   II. 

in  this  respect,  in  a  relation  similar  to  that  of  existing  copart- 
ners. Thus,  also,  the  act  of  making  a  partial  payment  within 
six  years,  by  one  of  several  joint  makers  of  a  promissory  note, 
takes  it  out  of  the  statute  of  limitations.^  And  where  several 
were  both  legatees  and  executors  in  a  will,  and  also  appellees  in 
a  question  upon  the  probate  of  the  will,  the  admission  of  one  of 
them,  as  to  facts  which  took  place  at  the  time  of  making  the  will, 

V.  Raynal,  2  Bing.  306  ;  Burleigh  v.  Stott,  8  B.  &  C.  36  ;  Wyatt  v.  Hodson,  8  Bing. 
309  ;  Branclram  i'.  Wharton,  1  B.  &  Aid.  467  ;  Holme  v.  Green,  1  Stark.  488.  See 
also,  accordingly,  White  v.  Hale,  3  Pick.  291  ;  Martin  v.  Root,  17  Mass.  222  ;  Hunt 
V.  Bridgham,  2 'Pick.  581  ;  Frye  v.  Barker,  4  Pick.  382  ;  Beitz  v.  Fuller,  1  McCord, 
541  ;  Johnson  v.  Beardslee,  15  Johns.  3  ;  Bound  v.  Latlirop,  4  Conn.  336  ;  Coit  v. 
Tracy,  8  Conn.  268,  276,  277  ;  Getchell  v.  Heald,  7  Greenl.  26  ;  Owings  v.  Low,  5  Gill 
&  Johns.  144  ;  Patterson  v.  Choate,  7  Wend.  441  ;  Mclntire  v.  Oliver,  2  Hawks,  209  ; 
Cady  V.  Shepherd,  11  Pick.  400  ;  Van  Reiinsdyk  v.  Kane,  1  Gall.  635,  636.  But  see 
Bell  V.  Jtlorrison,  1  Peters,  351.  But  the  admission  must  he  distinctly  made  by  a  party 
still  liable  upon  the  note  ;  otherwise  it  will  not  be  binding  against  the  others.  There- 
fore, a  payment  appropriated,  by  the  election  of  the  creditor  only,  to  the  debt  in  ques- 
tion, is  not  a  sufficient  admission  of  that  debt,  for  this  purpose.  Holme  v.  Green, 
ubi  sup.  Neither  is  a  payment  received  under  a  dividend  of  the  effects  of  a  bankrupt 
promisor.  Brandram  v.  Wharton,  ubi  sup.  In  this  last  case,  the  opposing  decision  in 
Jack.son  v.  Fairbank,  2  H.  Bl.  340,  was  considered  and  strongly  disapproved  ;  but  it 
was  afterwards  cited  by  Holroyd,  J.,  as  a  valid  decision,  in  Burleigh  v.  Stott,  8  B.  & 
C.  36.  (c)  The  admission  where  one  of  the  promisors  is  dead,  to  take  the  case  out  of 
the  statute  of  limitations  against  him,  must  liave  been  made  in  his  lifetime,  Burleigh 
V.  Stott,  supra ;  Slatter  v.  Lawson,  1  B.  &  Ad.  396  ;  and  by  a  party  originally  liable, 
Atkins  V.  Tredgold,  2  B.  cSb  0.  23.  This  effect  of  the  admission  of  indebtment,  by  one 
of  several  joint  promisors,  as  to  cases  barred  by  the  statute  of  limitations,  when  it  is 
merely  a  verbal  admission,  without  part  payment,  is  now  restricted  in  England,  to  the 
party  making  the  admission,  by  Stat.  9  George  IV.  c.  14  (Lord  Tenterden's  Act).  So 
in  Massachusetts,  by  Gen.  Stat.  c.  155,  §§  14,  16  ;  and  in  Vermont,  Rev.  Stat.  c.  58, 
§§  23,  27.  The  application  of  this  doctrine  to  partners,  after  the  dissolution  of  the 
partnership,  has  already  been  considered.  Supra,  §  112,  n.  {d)  Whether  a  written 
acknowledgment,  made  by  one  of  several  partners,  stands  upon  different  ground  from 
that  of  a  similar  admission  by  one  of  several  joint  contractors,  is  an  open  question. 
Clark  V.  Alexander,  8  Jur.  496,  498.  See  post,  vol.  ii.  §§  441,  444  ;  Pierce  v.  Wood, 
3  Foster,  520. 

s  Burleigh  v.  Stott,  8  B.  &  C.  36  ;  Munderson  v.  Peeve,  2  Stark.  Evid.  484  ;  Wyatt 
V.  Hodson,  °8  Bing.  309  ;  Chippendale  v.  Thurston,  4  C.  &  P.  98  ;  s.  c.  1  M.  &  M.  411; 
Pease  v.  Hir.st,  10  B.  &  C.  122.  But  it  must  be  distinctly  shown  to  be  a  payment  on 
account  of  the  particular  debt.     Holme  v.  Green,  1  Stark.  488. 

((■)  But  more  recent  cases,  both  in  this  v.  Stowell,  71  Pa.  St.  208  ;  Angell  on  Lim- 

country  and  in  England,  have  denied  that,  itations,   6th  ed.  §§  240,  260,  where  the 

from  the  mere  fact  of  part  payment,  the  subject,  both  as  to  payments  and  admis- 

jury  are  authorized  to  infer  a  promise  to  sions,  is  fully  treated,  and  the  authorities 

pay  the  rest.     Davies  v.  Edwards,  6  Eng.  are  collected. 

L.  &  Eq.  550  ;  s.  o.  15  Jur.  1014,  where  (d)  The  admissions  of  a  partner,  with 

Jackson   v.    Fairbank,    and   Brandram   v.  respect  to  a  transaction  within  the  scope 

Wharton,  are  said  not  to  have  been  well  of  the  partnership  business,  are  competent 

considered.     So  now  by  Stat.  19  &  20  Vict,  evidence  against  the  personal  representa- 

c.  97  ;  Jackson  v,  Woollev,  8  E.  &  B.  784  ;  fives   of  the   deceased   partner.      Clark's 

Smith  V.  Westmoreland,  12  S.  &M.  (Miss.)  Ex'rs  v.  Van  Reimsdyk,  9  Cranch,  153  ; 

663  ;  Davidson  v.  Harrisson,  33  Miss.  41  ;  McElroy  v.  Ludlum,  32  N.  J.    E(i.  828  ; 

Roscoe  V.  Hale,  7  Gray  (Mass.),  274  ;  Stod-  but  not  to  establish  the  fact  of  the  part- 

dard  v.  Doane,  Id.  387  ;  and  note  to  Brad-  nership.     Cowan  v.   Kinney,  33  Ohio  St. 

field  V.  Tupper,  7  Eng.  L.  &  Eq.  541.  Also  422.     See  ante,  §  112,  and  post,  §  178,  and 

Shoemaker  v.  Benedict,   1    Ker.   (N.  Y.)  notes. 
176  ;  Coleman  v.  Fobes,  22  Pa.  156  ;  Bush 


CHAP.    XI.]  OF   ADMISSIONS.  251 

showing  that  tho  testatrix  was  imposed  upon,  was  held  receivable 
in  evidence  against  the  validity  of  the  wilL^(g)  And  where  two 
were  bound  in  a  single  bill,  the  admission  of  one  was  held  good 
against  both  defendants.' 

§  175.  Corporators.  In  settlement  cases,  it  has  long  been  held 
that  declarations  by  rated  parishioners  are  evidence  against  the 
parish;  for  they  are  parties  to  the  cause,  though  the  nominal 
parties  to  tlie  appeal  be  church-wardens  and  overseers  of  the  poor 
of  the  parish.^  The  same  principle  is  now  applied  in  England  to 
all  other  prosecutions  against  towns  and  parishes,  in  respect  to 
the  declarations  of  ratable  inhabitants,  they  being  substantially 
parties  to  the  record. ^  Nor  is  it  necessary  first  to  call  the  in- 
habitant, and  show  that  he  refuses  to  be  examined,  in  order  to 
admit  his  declarations. ^  And  the  same  principle  would  seem  to 
apply  to  the  inhabitants  of  towns,  counties,  or  other  territorial 
political  divisions  of  this  country,  who  sue  and  are  prosecuted  as 
inhabitants,  eo  nomine,  and  are  termed  quasi  corporations.  Be- 
ing parties  personally  liable,  their  declarations  are  admissible, 
though  the  value  of  the  evidence  may,  from  circumstances,  be 
exceedingly  light.*  (a)  ' 

6  Atkins  V.  Sanger,  1  Pick.  192.  See  also  Jackson  v.  Vail,  7  Wend.  125  ;  Osgood 
V.  Manhattan  Co.,  3  Cowen,  612. 

''  Lowe  V.  Boteler,  4  Har.  &  McHen.  346  ;  Vicary's  Case,  1  Gilbert,  Evid.  by  LofFt, 
p.  59,  n. 

1  Rex  V.  Inhabitants  of  Hardwick,  11  East,  579.     See  supra,  §§  128,  129. 

2  Reg.  V.  Adderbury,  5  Q.  B.  187. 

3  Rex  V.  Inhabitants  ot  Whitley  Lower,  1  M.  &  S.  637  ;  Rex  v.  Inhabitants  of 
Woburn,  10  East,  395. 

*  11  East,  586,  per  Ld.  EUenborough  ;  2  Stark.  Evid.  580.  The  statutes  rendering 
quasi  corporators  competent  witnesses  (see  54  Geo.  III.  c.  170  ;  3  &  4  Vict.  c.  25)  are 

(e)  The  rule  here  stated  is  said  by  the  as  an  executor  and  legatee  of  a  will,  as  to 
court,  in  Milton  v.  Hunter,  13  l]ush(Ky. ),  the  unsoundness  of  the  mind  of  the  testa- 
163,  not  to  be  tlie  law  in  Pennsylvania  and  tor,  are  admissible,  upon  a  probate  of  the 
Alabama  ;  but  it  is  held  in  the  case  before  will.  Robinson  v.  Hutchinson,  31  Vt.  443. 
the  court,  that  admissions  of  co-legatees  are  The  better  rule  now  seems  to  be  that 
evidence,  entitled  to  the  effect  not  of  an  such  admissions  are  not  admissible  except 
admission  by  all  the  co-legatees,  but  of  the  against  the  devisee  who  makes  them,  un- 
simiile  circumstance  that  a  party  interested  less  a  Joint  interest  or  some  conspiracy  is 
admitted  what  he  prol)ably  would  not  have  proved.  Hayes  t'.  Burkam,  51  Ind.  130  ; 
done,  had  he  not  believed  it  to  be  true.  And  Forney  v.  Ferrell,  4  W.  Va.  730  ;  La  Ban 
this  fact,  though  not  entitled  to  the  etfect  v.  Vanderbilt,  3  Redf.  384  ;  Clark  v.  Mor- 
of  an  admission,  by  all  concerned  in  a  com-  risoii,  25  Pa.  St.  453  ;  Shailer  v.  Bumstead, 
mon  interest  under  the  will,  may  never-  99  Mass.  112  ;  Osgood  v.  Manhattan  Co., 
theless  tend  to  a  presumption  against  all  3  Cow.  (N.  Y.)  612 ;  Thompson  v.  Thomp- 
of  them  (in  a  degree  corresponding  with  all  son,  13  Ohio  St.  358.  See  post,  §  176,  n.  7. 
thecircumstances),  that  the  thing  admitted  {a)  The  doctrine  of  the  text  is  thus 
may  be  true.  The  distinction  here  stated  strenuously  controverted  by  Judge  Red- 
seems  to  be  that  between  the  conchisix^e  field.  "  We  believe  the  practice  is  not 
effect  of  some  admissions  and  the  non-con-  general,  in  the  American  States,  to  admit 
elusive  effect  of  others.  See  post,  §§  204-  the  declarations  of  the  members  of  a  cor- 
212.     So  the  admissions  of  a  party  named  poration,  as  evidence  against  the  corpora- 


252  LAW   OF   EVIDENCE.  [PART   II. 

§  176.  Mere  community  of  interest  not  enough.  It  is  a  Joi7lt 
interest,  and  7iot  a  mere  community  of  interest,  that  renders  such 
admissions  receivable.  Therefore  the  admissions  of  one  executor 
are  not  received,  to  take  a  case  out  of  the  statute  of  limitations 
as  against  his  coexecutor.i  ;^qj.  jg  ^^  acknowledgment  of  indebt- 
ment  by  one  executor  admissible  against  his  coexecutor,  to  es- 
tablish the  original  demand. ^  The  admission  of  the  receipt  of 
money,  by  one  of  several  trustees,  is  not  received  to  charge  the 
other  trustees.^  Nor  is  there  such  joint  interest  between  a  sur- 
viving promisor,  and  the  executor  of  his  copromisor,  as  to  make 
the  act  or  admission  of  the  one  sufficient  to  bind  the  other.* 
Neither  will  the  admission  of  one  who  was  joint  promisor  with 
a  feme  sole  be  received  to  charge  her  husband,  after  the  marriage, 
in  an  action  against  them  all,  upon  a  plea  of  the  statute  of  limi- 
tations.^ For  the  same  reason,  namely,  the  absence  of  a  joint 
interest,  the  admissions  of  one  tenant  in  common  are  not  receiv- 

not  understood  as  interfering  with  tlie  rule  of  evidence  respecting  admissions.  Phil.  & 
Am.  on  Evid.  395,  and  n.  (2)  ;  1  Phil.  Evid.  375,  n.  (2).  In  some  of  the  United  States 
similar  statutes  have  been  enacted.  LL.  Vermont  (Rev.  Code,  1839),  c.  31,  §  18  ; 
Massachusetts,  Rev.  Stat.  c.  94,  §  54 ;  Delaware  (Kev.  Code,  1829),  p.  444  ;  New 
York,  Rev.  Stat.  vol.  i.  pp.  408,  439  (3d  ed.);  Maine,  Rev.  Stat.  1840,  c.  115,  §  75; 
New  Hampshire,  Rev.  Stat.  1842,  c.  188,  §  12;  Penn.sylvania,  Dunl,  Dig.  pp.  215,  918, 
1019,  1165  ;  Michigan,  Rev.  Stat.  1846,  c.  102,  §  81.  In  several  States,  the  interest 
of  inhabitants,  merely  as  such,  has  been  deemed  too  remote  and  contingent,  as  well  as 
too  minute,  to  disqualify  them,  and  they  have  been  held  competent  at  common  law. 
Eustis  V.  Parker,  1  N.  H.  273  ;  Comwefl  v.  Isham,  1  Day,  35  ;  Fuller  v.  Hamilton,  5 
Conn.  416  ;  Falls  v.  Belknap,  1  Johns.  486  ;  Bloodgood  f.  Jamaica,  12  Joluis.  285  ; 
Ex  parte  Kip,  1  Paige,  613  ;  Corwein  v.  Hames,  11  Johns.  76  ;  Orange  v.  Springfield, 
1  Southard,  186  ;  State  v.  Davidson,  1  Bailey,  35  ;  Jonesboro  v.  McKee,  2  Yerger, 
167  ;  Oass  v.  Gass,  3  Humph.  278,  285.     See  infra,  §  331. 

1  TuUock  V.  Dunn,  R.  &  M.  416.  Qucere,  and  see  Hammon  v.  Huntley,  4  Cowen, 
493.  But  the  declarations  of  an  executor  or  administrator  are  admissible  against  him, 
in  any  suit  by  or  against  him  in  that  character.     Faunce  v.  Gray,  21  Pick.  243. 

2  Hammon  v.  Huntley,  4  Cowen,  493  ;  James  v.  Hackley,  16  Johns.  277  ;  Forsyth 
V.  Ganson,  5  Wend.  558. 

3  Daviesi).  Ridge,  3  Esp.  101. 

*  Atkins  V.  Tredgold,  2  B.  &  C.  23  ;  Slater  v.  Lawson,  1  B.  &  Ad.  396  ;  S'.aymaker 
V.  Gundacker's  Ex'r,  10  Serg.  &  Rawl.  75;  Hathaway  v.  Haskell,  9  Pick.  42. 
6  Pittam  V.  Foster,  1  B.  &  C.  248. 

lion  itself.     And  it  seems  to  us,  that  upon  because  the  action  happens  to  be  in  fonn  in 

principle   they   are    clearly   inadmissible,  the  name  of  such  inhabitants,  than  that 

There  is  no  rule  of  law  better  settled  than  all  the  admissions  or  declarations  of  the 

that  the  admission  of  a  shareholder  will  people  at  large  should  be  evidence  against 

not  bind  the  corporation.     Nor  will  the  the  public  prosecutor  in  criminal  pvoceed- 

admission  of  a  director  or  agent  of  a  pri-  ings,  when  they  are  instituted  in  the  name 

vate   corporation  bind   the  company,   ex-  of  The  People,  which  we  believe  would  be 

cept  as  a  part  of  the  res  gcstce.     And  it  will  regarded   as  an   absurdity  by  every  one. 

make  no  difference  that'the  action  is  in  the  We  conclude,   therefore,  that  in  no  such 

corporate  name  of  tlie  president  and  direc-  case  can  the  admission  or  declaration  of  a 

tors  ;  that  does  not  make  them  parties  in  corporator  be  fairly  regarded^  as  evidence 

person.     And  we  see  no  more  reason  why  against    the   corporation.     Watertown    i>. 

the  admission  of  the  inhabitants  of  a  town  Cowen,  4  Paige,  510  ;  Burlington  v.  Calais, 

or  parish   should  bind  the  municipality,  1  Vt.  385  ;  Low  v.  Perkins,  10  Vt.  532. 


CHAP.    XI.]  OF   ADMISSIONS.  253 

able  against  his  cotenant,  though  both  arc  parties  on  the  same 
side  in  the  suit.^  Nor  are  the  admissions  of  one  ol"  several  devi- 
sees or  legatees  admissible  to  impeach  the  validity  of  the  will 
where  they  may  affect  others  not  in  privity  with  him.'  Ninther 
are  the  admissions  of  one  defendant  evidence  against  the  other, 
in  an  action  on  the  case  for  the  mere  negligence  of  both.^ 

§  177.  Interest  must  be  real.  It  is  obvious  that  an  apparent 
joint  interest  is  7iot  sufficient  to  render  the  admissions  of  one  ])arty 
receivable  against  his  companions  where  the  reality  of  that  interest 
is  the  point  in  controversy.  A  foundation  must  first  be  laid,  by 
showing,  prima  facie^  that  a  joint  interest  exists.  Therefore,  in 
an  action  against  several  joint  makers  of  a  promissory  note,  the 
execution  of  which  was  the  point  in  issue,  the  admission  of  his 
signature  only  by  one  defendant  was  held  not  sufficient  to  entitle 
the  plaintiff  to  recover  against  him  and  the  others,  though  theirs 
had  been  proved ;  the  point  to  be  proved  against  all  being  a  joint 
promise  by  all.i  And  where  it  is  sought  to  charge  several  as 
partners,  an  admission  of  the  fact  of  partnership  by  one  is  not 
receivable  in  evidence  against  any  of  the  others,  to  prove  the 
partnership.  It  is  only  after  the  partnership  is  shown  to  exist, 
by  proof  satisfactory  to  the  judge,  that  the  admission  of  one  of  the 
parties  is  received,  in  order  to  affect  the  others.  ^  (a)  If  they  sue 
upon  a  promise  to  them  as  partners,  the  admission  of  one  is  evi- 
dence against  all,  even  though  it  goes  to  a  denial  of  the  joint  right 
of  action,  the  partnership  being  conclusively  admitted  by  the 
form  of  action.^ 

§  178.   Answers  in  chancery.       In  general,   the   answer  of  one 

6  Dan  V.  Brown,  4  Cowen,  483,  492.     And  see  Smith  v.  Vincent,  15  Conn.  1. 

''  Hauberger  v.  Root,  6  Watts  &  Serg.  431. 

8  Daniels  v.  Potter,  1  M.  &  M.  501  ;  supra,  §  111.  Neither  is  there  snch  privity 
among  the  members  of  a  board  of  pulilie  officers,  as  to  make  the  admissions  of  one 
binding  on  all.  Loekwood  v.  Smith,  5  Day,  309.  Nor  among  several  indorsers  of  a 
promissory  note.  Slaymaker  v.  Gnndacker's  Ex'r,  10  Serg.  &  liawl.  75.  Nor  between 
executors  and  heirs  or  devisors.     Osgood  v.  Manhattan  Co.,  3  Cowen,  612. 

1  Gray  v.  Palmer,  1  Esp.  135. 

2  Nicholls  V.  Dowding,  1  Stark.  81  ;  Grant  v.  Jackson,  Peake's  Cas.  204  ;  Burgess 
V.  Lane,  3  Greenl.  165;  Grafton  Bank  v.  Moore,  13  N.  H.  99.  See  snpra,  §  112; 
post,  vol.  ii.  §  484  ;  Latham  v.  Kenniston,  13  N.  H.  203  ;  Whitney  v.  Ferris,  10  Johns. 
66  ;  Wood  v.  Braddick,  1  Taunt.  104  ;  Sangster  v.  Mazzarredo,  1  Stark.  161  ;  Van 
Reimsdyk  v.  Kane,  1  Gall.  635  ;  Harris  v.  Wilson,  7  Wend.  57  ;  Bucknam  v.  Barnum, 
15  Conn.  68. 

3  Lucas  V.  De  La  Cour,  1  M.  &  S.  249. 

(a)  AUcott  r.  Strong,  9  Cush.  (Mass.)  if  A  admits  that  he  is  a  partner  with  B, 

323  ;  Dutton  v.  Woodman,  Id.  255;  Eich  and  B  admits  that  he  is  a  partner  with  A, 

V.  Flanders,  39  N.  H.  304  ;  Campbell  v.  it  is  evidence  of  partnership  as  to  both  ; 

Hastings,   29   Ark.   512  ;    Cowan   v.  Kin-  and  it  makes  no  difference  which  declara- 

ney,  33  Ohio  St.  422 ;  ante,  §  112,  n.  {a),  tion  is  offered  first.     Edwards  v.  Tracy, 

But  when  A  and  B  are  sued  as  partners,  62  Pa,  St.  374. 


254  LAW    OF    EVIDENCE.  [PART    II. 

defendant  in  chancery  cannot  be  read  in  evidence  against  his  co- 
defendant;  the  reason  being,  that,  as  there  is  no  issue  between 
them,  there  can  have  been  no  opportunity  for  cross-examina- 
tion, ^  (a)  But  this  rule  docs  not  apply  to  cases  where  the  other 
defendant  claims  through  him  whose  answer  is  offered  in  evi- 
dence ;  nor  to  cases  where  they  have  a  joint  interest,  either  as 
partners  or  otherwise,  in  the  transaction.^  Wherever  the  con- 
fession of  any  party  would  be  good  evidence  against  another,  in 
such  case  his  answer,  a  fortiori,  may  be  read  against  the  latter.  ^ 
§  179.  Guardians,  executors,  &c.  The  admissions  which  are 
thus  receivable  in  evidence  must,  as  we  have  seen,  be  those  of  a 
person  having  at  the  time  some  interest  in  the  matter  afterwards 
in  controversy  in  the  suit  to  which  he  is  a  party.  The  admis- 
sions, therefore,  of  a  guardian,  or  of  an  executor  or  administrator, 
made  before  he  was  completely  clothed  with  that  trust,  or  of  a 
prochein  amy,  made  before  the  commencement  of  the  suit,  cannot 
be  received,  either  against  the  ward  or  infant  in  the  one  case,  or 
against  himself,  as  the  representative  of  heirs,  devisees,  and  credi- 
tors, in  the  other ;  ^  though  it  may  bind  the  person  himself,  when 
he  is  afterwards  a  party,  suo  jure,  in  another  action.  A  solemn 
admission,  however,  made  in  good  faith,  in  a  pending  suit,  for 
the  purpose  of  that  trial  only,  is  governed  by  other  considera- 
tions. Thus,  the  plea  of  nolo  contendere,  in  a  criminal  case,  is 
an  admission  for  that  trial  only.  One  object  of  it  is  to  prevent 
the  proceedings  being  used  in  any  other  place ;  and  therefore  it 

1  Jones  V.  Turberville,  2  Ves.  Jr.  11  ;  Morse  v.  RoA-al,  12  Ves.  355,  360  ;  Leeds  v. 
Marine  Ins.  Co.  of  Alexandria,  2  Wheat.  380  ;  Gresley  on  Eq.  Evid.  24  ;  Field  v. 
Holland,  6  Cranch,  8  ;  Clark's  Ex'rs  v.  Van  Riemsdj-k,  9  Cranch,  153  ;  Van  Riemsdyk 
V.  Kane,  1  Gall.  630  ;  Parker  v.  Morrell,  12  Jur.  253;  2  (.'.  &  K.  599  ;  Morris  v. 
Nixon,  1  How.  S.  C.  118. 

2  Field  V.  Holland,  6  Cranch,  8,  24  ;  Clark's  Ex'rs  v.  Van  Riemsdyk,  9  Cranch, 
153,  156  ;  Osborn  v.  United  States  Bank,  9  Wheat.  738,  832  ;  Christie  v.  Bishop,  1 
Barb.  Ch.  105,  116. 

3  Van  Riemsdyk  v.  Kane,  1  Gall.  630,  635. 

*  Webb  V.  Smith,  R.  &  M.  106  ;  Eraser  v.  Marsh,  2  Stark.  41 ;  Cowling  v.  Ely,  Id. 
366  ;  Plant  v.  McEwen,  4  Conn.  544.  So,  the  admissions  of  one,  before  he  became 
assignee  of  a  bankrupt,  are  not  receivable  against  him,  where  suing  as  assignee.  Fen- 
wick  V.  Thornton,  1  M.  &  M.  51. (ft)  Nor  is  the  statement  of  one  partner  admissible 
against  the  others,  in  regard  to  matters  which  were  transacted  before  he  became  a 
partner  in  the  house,  and  in  which  he  had  no  interest  prior  to  that  time'.  Catt  v. 
Howard,  3  Stark.  3.  In  trover  by  an  infant  suing  by  his  guardian,  the  statements  of 
the  guardian,  tending  to  show  that  the  property  was  in  fact  his  own,  are  admissible 
against  the  plaintiff,  as  being  the  declarations  of  a  party  to  the  record.  Tenney  v. 
Evans,  14  N.  H.  343 ;  post,  §  180,  n. 

(a)  McElroy  v.  Ludlum,  32  N.  J.  Eq.  The  ruling  to  the  contrary  bv  Tindal,  C. 

828.  J.,    in  Smith  v.   Morgan,  2   M.    &  Rob., 

(J)  Legge  V.   Edmonds,  25  L.  J.  Ch.  seems  to  be  regarded  as  unsound  in  Eng- 

125;  Metters  v.  Brown,  32  L.  J.  Ex.  140.  land. 


CHAP.    XI.]  OP    ADMISSIONS.  255 

is  held  inadmissible  in  a  civil  action  against  the  same  party.^ 
So,  the  answer  of  the  guardian  of  an  infant  defendant  in  chancery 
can  never  be  read  against  the  infant  in  another  suit ;  for  its  office 
was  only  to  bring  the  infant  into  court  and  make  him  a  party. ^ 
But  it  may  be  used  against  the  guardian,  when  he  afterwards  is 
a  party  in  his  private  capacity;  for  it  is  his  own  admission  upon 
oath.*  Neither  can  the  admission  of  a  married  woman,  answer- 
ing jointly  with  her  husband,  be  afterwards  read  against  her,  it 
being  considered  as  the  answer  of  the  husband  alone.  ^ 

§  180.  Admissions  of  parties  not  of  record.  We  are  next  to 
consider  the  admissions  of  persons  who  are  not  parties  to  the 
record,  but  yet  are  interested  in  the  subject-matter  of  the  suit.  The 
law,  in  regard  to  this  source  of  evidence,  looks  chiefly  to  the  real 
parties  in  interest,  and  gives  to  their  admissions  the  same  weight 
as  though  they  were  parties  to  the  record.  Thus  the  admissions 
of  the  cestui  que  trust  of  a  bond ;  ^  those  of  the  persons  interested 
in  a  policy  effected  in  another's  name,  for  their  benefit  ;2  those 
of  the  ship-owners,  in  an  action  by  the  master  for  freight;^  those 
of  the  indemnifying  creditor,  in  an  action  against  the  sheriff;* 
those  of  the  deputy-sheriff,  in  an  action  against  the  high-sheriff 
for  the  misconduct  of  the  deputy ;  ^  are  all  receivable  against  the 

2  Guild  V.  Lee,  3  Law  Reporter,  p.  433.  So,  an  admission  in  one  plea  cannot  be 
called  in  aid  of  the  issue  in  another.  Stracy  v.  Blake,  3  M.  &  W.  168  ;  Jones  v. 
Flint,  2  P.  &  D.  594  ;  Gould  on  Pleading,  432,  433  ;  Mr.  Rand's  note  to  Jackson  v. 
Stetson,  15  ^lass.  5S. 

3  Eggleston  v.  Speke,  alias  Petit,  3  Mod.  258,  259  ;  Hawkins  v.  Luscombe,  2 
Swanst.  392,  cases  cited  in  note  (a)  ;  Story  on  Eq.  PI.  668  ;  Gresley  on  E(i.  Evid.  24, 
323  ;  Mills  v.  Dennis,  3  Johns.  C.  367. 

*  Beasley  v.  Magrath,  2  Sch.  &  Lefr.  34  ;  Gresley  on  Eq.  Evid.  323. 

5  Hodgson  V.  Merest,  9  Price,  563  ;  Elston  v.  Wood,  2  My.  &  K.  678. 

1  Hanson  v.  Parker,  1  Wils.  257.  See  also  Harrison  v.  Vallance.  1  Bing.  45.  But 
the  declarations  of  the  cestui  que  trust  are  admissible,  oidy  so  far  as  his  interest  and 
that  of  tlie  trustee  are  identical.  Doe  v.  Wainwright,  3  Nev.  &  P.  598.  And  the 
nature  of  his  interest  must  be  shown,  even  though  it  be  admitted  that  he  is  a  cestui 
que  trust.     May  v.  Taylor,  6  M.  &  Gr.  261. 

2  P)ell  V.  Ansley,  16  East,  141,  143. 
8  Smith  V.  Lyon,  3  Campb.  465. 

*  Dowden  v.  Fowle,  4  Campb.  38  ;  Dyke  v.  Aldridge,  cited  7  T.  R.  665  :  11  East, 
584  ;  Young  v.  Smith,  6  Esp.  121  ;  Harwood  v.  Keys,  1  M.  &  Rob.  204  ;  Proctor  v. 
Lainson,  7  C  &  P.  629. 

°  The  admissions  of  an  under-sheriff  are  not  receivable  in  evidence  against  tlie 
sheriff,  unless  they  tend  to  charge  himself,  he  being  the  real  party  in  the  cause.  He 
is  not  regarded  as  the  general  officer  of  the  sheriff,  to  all  intents.  Snowball  v.  Good- 
rieke,  4  B.  &  Ad.  541  ;  though  the  admissibility  of  his  declarations  has  sometimes 
been  placed  on  that  ground.  Drake  v.  Sykes,  7  t.  R.  113.  At  other  times  they  have 
been  received  on  the  ground,  that,  being  liable  over  to  the  sheriff,  he  is  the  real  party 
to  the  suit.  Yabsley  v.  Doble,  1  Ld.  Raym.  190.  And  where  the  sheriff  has  taken  a 
general  bond  of  indemnity  from  the  under-officer,  and  has  given  him  notice  of  the 
pendency  of  the  suit,  and  required  him  to  defend  it,  the  latter  is  in  fact  the-real  party 
in  interest,  whenever  the  sheriff  is  sued  for  his  default  ;  and  his  admissions  are  clearly 
receivable,  on  principle,  when  made  against  himself.  It  has  elsewhere  been  said,  that 
the  declarations  of  an  under-sheriff  are  evidence  to  charge  the  sheriff,  only  where  his 


256  LAW   OF   EVIDENCE,  [PART   II. 

party  making  them.  And,  in  general,  the  admissions  of  any- 
party  represented  by  another  are  receivable  in  evidence  against 
his  representatives.*^  (a)  But  here,  also,  it  is  to  be  observed,  that 
the  declarations  or  admissions  must  have  been  made  while  the 
party  making  them  had  some  interest  in  the  matter ;  and  they  are 
receivable  in  evidence  only  so  far  as  his  own  interests  are  con- 
cerned. Thus,  the  declaration  of  a  bankrupt,  made  before  his 
bankruptcy,  is  good  evidence  to  charge  his  estate  with  a  debt; 
but  not  so  if  it  was  made  afterwards."  {b)  While  the  declarant  is 
the  only  party  in  interest,  no  harm  can  possibly  result  from  giv- 
ing full  effect  to  his  admissions.  He  may  be  supposed  best  to 
know  the  extent  of  his  own  rights,  and  to  be  least  of  all  dis- 
posed to  concede  away  any  that  actually  belonged  to  him.  But 
an  admission,  made  after  other  persons  have  acquired  separate 
rights  in  the  same  subject-matter,  cannot  be  received  to  disparage 
their  title,  however  it  may  affect  that  of  the  declarant  himself. 
This  most  just  and  equitable  doctrine  will  be  found  to  apply  not 
only  to  admissions  made  by  bankrupts  and  insolvents,  but  to  the 
case  of  vendor  and  vendee,  payee  and  indorsee,  grantor  and 
grantee,  and,  generally,  to  be  the  pervading  doctrine  in  all  cases 
of  rights  acquired  in  good  faith,  previous  to  the  time  of  making 
the  admissions  in  question.^  (c) 

acts  might  be  given  in  evidence  to  charge  him  ;  and  then,  rather  as  acts  than  as  decla- 
rations, the  declarations  being  considered  as  part  of  the  res  gestae.  Wheeler  v.  Ham- 
bright,  9  Serg.  &  R.  396,  397.  See  Scott  v.  lilarshall,  2  Cr.  &  Jer.  238  ;  Jacobs  v. 
Humphrey,  2  Cr.  &  M.  413  ;  s.  c.  4  Tyrw.  272.  But  whenever  a  person  is  bound  by 
the  record,  he  is,  for  all  purposes  of  evidence,  the  party  in  interest,  and,  as  such,  his 
admissions  are  receivable  against  him,  both  of  the  facts  it  recites,  and  of  the  amount 
of  damages,  in  all  cases  where,  being  liable  over  to  the  nominal  defendant,  he  has  been 
notified  of  the  suit,  and  required  to  defend  it.  Clark's  Ex'rs  v.  Carrington,  7  Cranch, 
322  ;  Hamilton  v.  Cutts,  4  Mass.  349  ;  Tvler  v.  Ulmer,  12  Mass.  166  ;  Duffield  v. 
Scott,  3  T.  R.  374  ;  Kip  v.  Brigham,  6  Jones,  158  ;  7  Johns.  168  ;  Bender  v.  From- 
berger,  4  Dall.  436.  See  also  Carlisle  v.  Garland,  7  Bing.  298  ;  North  v.  Miles,  1 
Campb.  389  ;  Bowsher  v.  Calley,  1  Campb.  391,  n.  ;  Underbill  v.  Wilson,  6  Bing. 
697 ;  Bond  v.  Ward,  1  Nott  &  McCord,  201  ;  Carmack  v.  Commonwealth,  5  Binn. 
184  ;  Sloman  v.  Heme,  2  Esp.  695  ;  Williams  v.  Bridges,  2  Stark.  42  ;  Savage  v. 
Balch.  8  Greenl.  27. 

6  Stark.  Evid.  26  ;  North  v.  Miles,  1  Campb.  390. 

7  Bateman  v.  Bailey,  5  T.  R.  513  ;  Smith  v.  Sinimes,  1  Esp.  330  ;  Deady  r.  Har- 
rison, 1  Stark.  60. 

8  Bartlet  i'.  Delprat,  4  Mass.  702,  708  ;  Clarke  v.  Waite,  12  Mass.  439  ;  Bridge  v. 

(a)  In  an   action   by  a  father  for   the  with   the   parties   to    the   record,    cannot 

loss  of  the  life  of  his  son,  the  declarations  make  declarations  to  bind  the  others,  is 

of  the  son,  after  the  injury,  as  to  tlie  cause,  probably  not  the  law,  and  is  at  best  an 

are  admissible  against  the  father.     Stern  obiter  dictum,  as  the  case  weni  off  on  an- 

V.    R.    R.    Co.,  C.   C.    P.    Phila.    7   Leg.  other    point.      Cf.    Weed    v.   Kellogg,   6 

Gazette.  223.     The  statement  in  Dickin-  McLean,  44. 
son  V.  Clarke,  5  W.  Va.  280,  that  persons  (b)  Infra,  §  190. 

not  parties  to  the  record,  yet  jointly  in-  (c)  Infra,  §  190. 

terested  in  the  subject-matter  of  the  suit 


CHAP.    XI.]  OP   ADMISSIONS.  257 

§  181.  Admissions  of  strangers.  In  some  cases,  the  admissions 
of  third  persons,  strangers  to  the  suit,  are  receivable.  This  arises 
when  the  issue  is  substantially  upon  the  mutual  rights  of  such 
persons  at  a  particular  time;  in  which  case  the  practice  is  to  let 
in  such  evidence  in  general,  as  would  be  legally  admissible  in  an 
action  between  the  parties  themselves,  (b)  Thus,  in  an  action 
against  the  sheriff  for  an  escape,  the  debtor's  acknowledgment 
of  the  debt,  being  sufficient  to  charge  him  in  the  original  action, 
is  sufficient,  as  against  the  sheriff,  to  support  the  averment  in  the 
declaration  that  the  party  escaping  was  so  indebted. ^  So,  an 
admission  of  joint  liability  by  a  third  person  has  been  held  suffi- 
cient evidence,  on  the  part  of  the  defendant,  to  support  a  plea  in 
abatement  for  the  non-joinder  of  such  person  as  defendant  in  the 
suit;  it  being  admissible  in  an  action  against  him  for  the  same 
cause. 2  And  the  admissions  of  a  bankrupt,  made  before  the  act 
of  bankruptcy,  are  receivable  in  proof  of  the  petitioning  credi- 
tor's debt.  His  declarations,  made  after  the  act  of  bankruptcy, 
though  admissible  against  himself,  form  an  exception  to  this 
rule,  because  of  the  intervening  rights  of  creditors,  and  the 
danger  of  fraud.  ^ 

§  182.  Referees.  The  admissions  of  a  third  person  are  also 
receivable  in  evidence,  against  the  party  who  has  expressly  re- 
ferred another  to  him  for  information,  in  regard  to  an  uncertain 
or  disputed  matter.  In  such  cases,  the  party  is  bound  by  the 
declarations  of  the  persons  referred  to,  in  the  same  manner,  and 
to  the  same  extent,  as  if  they  were  made  by  himself,  (a)  Thus, 
upon  a  plea  of  ple7ie  administravit,  where  the  executors  wrote  to 
the  plaintiff,  that,  if  she  wished  for  further  information  in  regard 
to  the  assets,  she  should  apply  to  a  certain  merchant  in  the  city, 
they  were  held  bound  by  the  replies  of  the  merchant  to  her  in- 

Eggleston,  14  Mass.  245,  250,  251  ;  Phnenix  v.  Ingraham,  5  Johns.  412  ;  Packor  v. 
Gonsalus,  1  Serg.  &  K.  526  ;  Patton  v.  Goldsborough,  9  Serg.  &  R.  47  ;  Babb  v.  Clem- 
son,  12  Serg.  &  R.  328. 

1  Slonian  v.  Heine,  2  Esp.  695  ;  Williams  v.  Bridges,  2  Stark.  42  ;  Kempland  v. 
Macauley,  Peake's  Cas.  65. 

2  Clay  V.  Langslow,  1  M.  &  M.  45.     Sed  qucere,  and  see  mfra,  §  395. 

3  Hoare  v.  Coryton,  4  Taunt.  560  ;  2  Rose,  158  ;  Robson  v.  Kemp,  4  Esp.  234  ; 
Watts  V.  Thorpe,  1  Campb.  376  ;  Smallcombe  v.  Bruges,  MeClel.  45  ;  s.  r.  13  Price, 
136  ;  Taylor  v.  Kinlocli,  1  Stark.  175;  2  Stark.  594  ;  Jarrett  v.  Leonard,  2  M.  &  S. 
265.  The  dictwm  of  Lord  Kenyon,  in  Dowton  v  Cross,  1  Esp.  168,  that  the  admissions 
of  a  bankrupt,  made  after  the  act  of  bankruptcy,  but  before  the  commission  issued, 
are  receivable,  is  contradicted  in  13  Price,  153,  154,  and  overnded  ]>y  that  and  the 
other  cases  above  cited.     See  also  Bernasconi  v.  Farebrother,  3  B.  &  Ad.  372. 

(&)  Friberg  r.  Donovan,  23  111.  App.  62.     14;  Chapman  v.   Twitchell,  37  Me.  59; 
(a)  Wehle  v.  Spelman,  1  Hun  (N.  Y.),     Chadsey  v.  Greene,  24  Conn.  562. 
634;  Turner  v.  Yates,  16  How.   (U.  S.) 
VOL.  I.  —  17 


258  LAW    OF    EVIDENCE.  [PART    II. 

quiries  upon  that  subject.^  So,  in  assumpsit  for  goods  sold,  where 
the  fact  of  the  delivery  of  them  by  the  carman  was  disputed,  and 
the  defendant  said :  "  If  he  will  say  that  he  did  deliver  the  goods, 
I  will  pay  for  them,"  he  was  held  bound  by  the  affirmative  reply 
of  the  carman.  2  (c) 

§  183.  Interpreter.  This  principle  extends  to  the  case  of  an 
interpreter  whose  statements  of  what  the  party  says  are  treated 
as  identical  with  those  of  the  party  himself ;  and  therefore  may 
be  proved  by  any  person  who  heard  them,  without  calling  the 
interpreter.^  (a) 

§  184.  Not  conclusive.  Whether  the  answer  of  a  person  thus 
referred  to  is  conclusive  against  the  party  does  not  seem  to  have 
been  settled.  Where  the  plaintiff  had  offered  to  rest  his  claim 
upon  the  defendant's  affidavit,  which  was  accordingly  taken,  Lord 
Kenyon  held,  that  he  was  conclusively  bound,  even  though  the 
affidavit  had  been  false ;  and  he  added,  that  to  make  such  a  propo- 
sition and  afterwards  to  recede  from  it  was  mala  fides;  but  that, 
besides  that,  it  might  be  turned  to  very  improper  purposes,  such 
as  to  entrap  the  witness,  or  to  find  out  how  far  the  party's  evi- 
dence would  go  in  support  of  his  case.*  But  in  a  later  case,  where 
the  question  was  upon  the  identity  of  a  horse,  in  the  defendant's 
possession,  with  one  lost  by  the  plaintiff,  and  the  plaintiff  had 
said,  that,  if  the  defendant  would  take  his  oath  that  the  horse  was 
his,  he  should  keep  him,   and  he  made  oath  accordingly,  Lord 

1  Williams  v.  Innes,  1  Campb.  364. 

2  Daniel  v.  Pitt,  1  Campb.  366,  n.  ;  s.  c.  6  Esp.  74  ;  Brock  v.  Kent,  Id. ;  Burt  v. 
Palmer,  5  Esp.  145  ;  Hood  v.  Reeve,  3  C.  &  P.  532. 

2  Fabrigas  v.  Mostyn,  11  St.  Tr.  171.  The  cases  of  the  reference  of  a  disputed 
liability  to  the  opinion  of  legal  counsel,  and  of  a  disputed  fact  reganling  a  mine  to  a 
miner's  jury  have  been  treated  as  falling  under  this  head ;  the  decisions  being  held 
binding  as  to  the  answers  of  persons  referred  to.  How  far  the  circumstance,  that  if 
treated  as  awards,  being  in  writing,  they  would  have  been  void  for  want  of  a  stamp, 
may  have  led  the  learned  judges  to  consider  them  in  another  light,  does  not  appear. 
Sybray  v.  White,  1  M.  &  W.  435.(6)  But  in  this  country,  where  no  stamp  is  required, 
they  would  more  naturally  be  regarded  as  awards  upon  parol  submissions,  and  there- 
fore conclusive,  unless  impeached  for  causes  recognized  in  the  law  of  awards. 

<  Stevens  v.  Thacker,  Peake's  Cas.  187  ;  Lloyd  v.  Willan,  1  Esp.  178  ;  Delesline  v. 
Greenland,  1  Bay,  458,  ace,  where  the  oatli  of  a  third  person  was  referred  to.  See  Eeg. 
V.  Moreau,  36  Leg.  Obs.  69  ;  11  Ad.  &  El.  1028,  as  to  the  admissibility  of  an  award 
as  an  admission  of  the  party  ;  infra,  %  537,  n.  (1). 

(c)  But  if  a  third  person  is  referred  to  («)  But  this  rule  does  not  apply  to  the 

simply  to  furnish  information  as  to  certain  cases  of  an  interpreter  of  a  witness  in  court, 

facts,  his  statements  as  to  other  facts  or  He  is  not  the  agent  of  the  party  calling 

his  opinions  are  inadmissible.     Lambert  v.  him,  but  rather  an  officer  of  court,  and  his 

People,  6  Abb.  (N.  Y. )  N.  Cas.  181.     And  declarations  are  admissible  only  under  the 

as  this  rule  introduces  evidence  as  an  ex-  conditions  stated  in  §  163.     Schearer  v. 

ception  to  the  rule  against  hearsay,   the  Harber,  36  Ind.  536. 

party  offering  such  evidence  must  iiring  (&)    Price  i-.  Hollis,    1   ^\.  &  S.   105  ; 

himself  strictly  within  its  provisions.    Al-  Downs  v.  Cooper,  2  Q.  B.  256. 
len  V.  KiUinger,  8  Wall.  (U.  S.)  480. 


OHAP.    XI.]  OF   ADMISSIONS.  259 

Tcnterden  observed,  that,  considering  the  loose  manner  in  which 
the  evidence  had  been  given,  he  would  not  receive  it  as  conclu- 
sive; but  that  it  was  a  circumstance  on  which  he  should  not  fail 
to  remark  to  the  jury.^  And  certainly  the  opinion  of  Lord  Ten- 
terden,  indicated  by  what  fell  from  him  in  this  case,  more  per- 
fectly harmonizes  with  other  parts  of  the  law,  especially  as  it  is 
opposed  to  any  further  extension  of  the  doctrine  of  estopi)els, 
which  sometimes  precludes  the  investigation  of  truth.  The  pur- 
poses of  justice  and  policy  are  sufficiently  answered,  by  throwing 
the  burden  of  proof  on  the  opposing  party,  as  in  a  case  of  an 
award,  and  holding  him  bound,  unless  he  impeaches  the  test 
referred  to  by  clear  proof  of  fraud  or  mistake.^ 

§  185.  Admissions  of  wife.  The  admissions  of  the  wife  will  bind 
the  husband,  only  where  she  has  authority  to  make  theni.i(«) 
This  authority  does  not  result,  by  mere  operation  of  law,  from  the 
relation  of  husband  and  wife ;  but  is  a  question  of  fact,  to  be  found 
by  the  jury,  as  in  other  cases  of  agency ;  for  though  this  relation 
is  peculiar  in  its  circumstances,  from  its  close  intimacy  and  its 
very  nature,  yet  it  is  not  peculiar  in  its  principles,  (b)  As  the 
wife  is  seldom  expressly  constituted  the  agent  of  the  husband, 
the  cases  on  this  subject  are  almost  universally  those  of  implied 
authority,  turning  upon  the  degree  in  which  the  husband  per- 
mitted the  wife  to  participate,  either  in  the  transaction  of  his 
affairs  in  general,  or  in  the  particular  matter  in  question.  Where 
he  sues  for  her  wages,  the  fact  that  she  earned  them  does  not 
authorize  her  to  bind  him  by  her  admissions  of  payment  ;2  nor 
can  her  declarations  affect  him,  where  he  sues  with  her  in  her 
right ;  for  in  these,  and  similar  cases,  the  right  is  his  own,  though 
acquired  through  her  instrumentality.^     But  in  regard  to  the  in- 

2  Garnet  v.  Ball,  3  Stark.  160. 

8  "Whitehead  v.  Tattersall,  1  Ad.  &  El.  491. 

1  Emerson  v.  Bloraden,  1  Esp.  142  ;  Anderson  v.  Sanderson,  2  Stark.  204  ;  Carey  v. 
Adkins,  4  Campb.  92.  In  Walton  v.  Green,  1  C.  &  P.  621,  which  was  an  action  for 
necessaries  furnished  to  the  wife,  the  defence  being  that  she  was  turned  out  of  doors 
for  adultery,  the  husband  was  permitted  to  prove  her  confessions  of  the  fact,  just  pre- 
vious to  liis  turning  her  away  ;  but  this  was  contemporary  with  the  transaction  of 
which  it  formed  a  part. 

2  Hall  V.  Hill,  2  Str.  1094.  An  authority  to  the  wife  to  conduct  the  ordinary 
business  of  the  shop  in  her  husband's  absence  does  not  authorize  her  to  bind  him 
by  an  admission,  in  regard  to  the  tenancy  or  the  rent  of  the  sliop.  Meredith  v.  Foot- 
ner,  11  M.  &  W.  202. 

3  Alban  v.  Pritchett,  6  T.  R.  680  ;  Kelly  v.  Small,  2  Esp.  716  ;  Denn  v.  White, 
7  T.  R.  112,  as  to  lier  admission  of  a  trespass  ;  Hodgkinson  v.  Fletcher,  4  Campb. 
70.  Neither  are  his  admissions,  as  to  facts  respecting  her  property,  whicli  hapjiened 
before  the  marriage,  receivable  after  his  death,  to  affect  the  rights  of  the  surviving 
wife.     Smith  v.  Scudder,  11  Serg.  &  K.  325. 

(a)  State  v.  Jaeger,  66  Mo.  173.  (b)  Goodrich  v.  Tracy,  43  Vt.  314. 


260  LAW   OF   EVIDENCE.  [PART   II. 

ference  of  her  agency  from  circumstances,  the  question  has  been 
left  to  the  jury  with  great  latitude,  both  as  to  the  fact  of  agency 
and  the  time  of  the  admissions.  Thus,  it  has  been  held  compe- 
tent for  them  to  infer  authority  in  her  to  accept  a  notice  and 
direction,  in  regard  to  a  particular  transaction  in  her  husband's 
trade,  from  the  circumstance  of  her  being  seen  twice  in  his 
counting-room,  appearing  to  conduct  his  business  relating  to  that 
transaction,  and  once  giving  orders  to  the  foreman.^  And  in  an 
action  against  the  husband,  for  goods  furnished  to  the  wife,  while 
in  the  country,  where  she  was  occasionally  visited  by  hiim,  her 
letter  to  the  plaintiff,  admitting  the  debt,  and  apologizing  for  the 
non-payment,  though  written  several  years  after  the  transaction, 
was  held  by  Lord  Ellenborough  sufficient  to  take  the  case  out  of 
the  statute  of  limitations.^ (c) 

§  186.  Attorneys  of  record.  The  admissions  of  attorneys  of 
record  bind  their  clients,  in  all  matters  relating  to  the  progress 
and  trial  of  the  cause.  But,  to  this  end,  they  must  be  distinct 
and  formal,  or  such  as  are  termed  solemn  admissions,  made  for 
the  express  purpose  of  alleviating  the  stringency  of  some  rule  of 
practice,  or  of  dispensing  with  the  formal  proof  of  some  fact  at 
the  trial.  In  such  cases,  they  are  in  general  conclusive ;  and  may 
be  given  in  evidence,  even  upon  a  new  trial. ^  (a)  But  other  ad- 
missions, which  are  mere  matters  of  conversation  with  an  attor- 
ney, though  they  relate  to  the  facts  in  controversy,  cannot  be  re- 
ceived in  evidence  against  his  client.  (6)      The  reason  of  the 

4  Plimmer  v.  Sells,  3  Nev.  &  M.  422.     And  see  Riley  v.  Suydam,  4  Barb.  S.  C.  222. 

5  Gregorys.  Parker,  1  Canqib.  394  ;  Palethorp  v.  Furnish,  2  Esp.  511,  n.  See  also 
Clifford  V.  Burton,  1  Bing.  199  ;  s.  c.  8  More,  16  ;  Petty  v.  Anderson,  3  Bing.  170  ; 
Cotes  V.  Davis,  1  Campb.  485. 

I  Doe  V.  Bird,  7  C.  &  P.  6  ;  Ltingley  v.  Lord  Oxford,  1  M.  &  W.  508. 

(c)  A  wife  is  the  agent  of  the  husband  it.  Deck  v.  Johnson,  1  Abb.  (N.  Y.)  App. 

to  pay  the  rent  of  the  house  during  his  Dec.  497. 

absence  if  he  ratifies  the  act,  and  this  will  (a)  But  an  oral  admission  of  a  fact  by 

be   presumed  unless  it  appears  that  the  the  attorney  during  the  progress  of  the 

husband  repudiated  the  act  immediately  trial,  is  not  conclusive  upon  a  second  trial, 

upon  learning  of  the  payment.     Bergman  especially  if  notice  of  withdrawal  of  the 

V.   Roberts,  61  Pa.  St.  497.     In  all  cases  admission  be  given,  though  it  is  evidence, 

there  must  be  some  evidence  of  the  agency  Perry  v.  Simpson  Manuf.  Co.,  40  Conn, 

for  the  jury,  besides  evidence  of  the  re'-  313.     But  see  Colledge  v.  Horn,  3  Bing. 

lationship,  either  by  authority  or  a  pre-  119.     By  statute  in  Massachusetts  neither 

sumed   ratitication.     Hunt   v.    Strew,    33  the  declaration,  answer,  nor  a  subsequent 

Mich.    85  ;    Butler   r.    Price,    115    Mass.  allegation  shall  be  deemed  evidence  on  the 

578;  Deck  v.  Johnson,  1  Abb.  (N.  Y.)  trial,    but   allegations    only   whereby   the 

App.  Dec.  497.  party  making  them  is  bound.     Pub.  Stat. 

The  converse  of  the  rule  as  stated  above  c.  167,  §  75  ;  Blackington  v.  Johnson,  126 

and  in  the  text,  supra,  is  also  true,  and  it  Mass.  21  ;  Lyons  v.  Ward,  124  Mass.  365. 

is  held  that  the  mere  existence  of  the  re-  (&)  And  where  an  attorney  tiled  a  motion 

lationship  is  not  proof  of  the  husband  being  for  an  amendment  and  at  the  argument  of 

the  agent  of  the  wife  for  any  ])urpose,  but  the  motion,  in  stating  his  case,  said,  in  the 

the  party  relying  on  this  fact  must  prove  presence  of  his  client,  that  his  client  would 


CHAP.    XL]  OP   ADMISSIONS.  261 

distinction  is  found  in  the  nature  and  extent  of  the  authority- 
given;  the  attorney  being  constituted  for  the  management  of  the 
cause  in  court,  and  for  nothing  morc.''^(6')  If  the  admission  is 
made  before  suit,  it  is  equally  binding,  provided  it  appear  that 
the  attorney  was  ah-eady  retained  to  appear  in  the  cause.  ^  But 
in  the  absence  of  any  evidence  of  retainer  at  that  time  in  the 
cause,  there  must  be  some  other  proof  of  authority  to  make 
the  admission.*  Where  the  attorney  is  already  constituted  in 
the  cause,  admissions  made  by  his  managing  clerk  or  his  agent 
are  received  as  his  own.^ 

§  187.  Principal  as  against  surety.  We  are  next  to  consider  the 
admissions  of  a  principal,  as  evidence  in  an  action  agaiuist  the 
surety,  upon  his  collateral  undertaking.  In  the  cases  on  this 
subject  the  main  inquiry  has  been,  whether  the  declarations  of 
the  principal  were  made  during  the  transaction  of  the  business 
for  which  the  surety  was  bound,  so  as  to  become  part  of  the  res 
gestce.  If  so,  they  have  been  held  admissible;  otherwise  not. 
The  surety  is  considered  as  bound  only  for  the  actual  conduct  of 
the  party,  and  not  for  whatever  he  might  say  he  had  done ;  and 
therefore  is  entitled  to  proof  of  his  conduct  by  original  evidence, 
where  it  can  be  had;  excluding  all  declarations  of  the  principal, 
made  subsequent  to  the  act  to  which  they  relate,  and  out  of  the 
course  of  his  official  duty,  {a)  Thus,  where  one  guaranteed  the 
payment  for  such  goods  as  the  plaintiffs  should  send  to  another, 
in  the  way  of  their  trade,  it  was  held,  that  the  admissions  of  the 
principal  debtor,  that  he  had  received  goods,  made  after  the  time 

2  Young  V.  Wriglit,  1  Campb.  139,  141  ;  Parkins  v.  Hawkshaw,  2  Stark.  239  ; 
Elton  V.  Larkins,  1  M.  &  Rob.  196;  Doe  v.  Bird,  7  C.  &  P.  6  ;  Doe  v.  Richards,  2  C. 
&  K.  216  ;  Watson  v.  King,  3  C.  B.  608. 

3  Marshall  v.  Cliff,  4  Campb.  133.  *  Wagstaff  y.  Wilson,  4  B.  &  Ad.  339. 

5  Taylor  v.  Willans,  2  B.  &  Ad.  845,  856  ;  Standage  v.  Creighton,  5  C.  &  P.  406  ; 
Taylor  v.  Foster,  2  C.  &  P  195  ;  Griffiths  v.  Williams,  1  T.  R.  710  ;  Truslove  v.  Bur- 
ton, 9  Moore,  64.  As  to  the  extent  of  certain  admissions,  see  Holt  v.  Squire,  Ry.  & 
M.  282  ;  Marshall  v.  Cliff,  4  Campb.  133.  The  admission  of  the  due  execution  of  a 
deed  does  not  preclude  the  party  from  taking  advantage  of  a  variance.  Goldie  v.  Shut- 
tle worth,  1  Campb.  70. 

testify  to  certain   facts,  it  was  held  that  as  to  dispense  with  proof  of  those  facts  on 

this  amounted  to  an  admission  of  those  the  part  of  the  state.     Clayton  v.  State,  4 

facts  by  his  client,  which  could  be  used  Tex.  App.  515. 

against  him  in  a  suit  by  a  third  party,  as  («)  Lee  v.  Brown,  21  Kan.  458  ;  Pol- 

the  statement  was  an  assertion  of  a  matter  lard  v.   Louisville,  &c.  R    R.  Co.,  7  Bush 

of  fact,  made  by  the  immediate  represen-  (Kv.),  597  ;  White  v.  German  Nat.  Bank, 

tative   and    agent   of  the    client,    in   the  9  Heisk.   (Tenn.)  475 ;   Hatch  v.    Elkins, 

course  and  scope  of  such  agency,  for  the  65  N.  Y.   489 ;  Tenth  National  Bank  v. 

benefit  of  the  client,  in  his  presence,  and  Darragh,   3  Thoiup.  &  ('.   138  ;    Chelms- 

with  his  concurrence.     Lord  v.   Bigelow,  ford  Company  u.  Demarest,  7  Gray  (Mass.), 

124  Mass.  185.  1.  Cf.  Union  Savings  Association  v.  Ed- 

(c)  In  a  criminal  case  the  counsel   for  wards,  47  Mo.  445.     The  admission  of  the 

the  prisoner  cannot   make  admissions  of  surely,    howevei',    is    good    against    both, 

material  facts  in  the  government's  case,  so  Chapel  v.  Washburn,  11  Ind.  393. 


262  LAW   OP   EVIDENCE.  [PART  II. 

of  their  supposed  delivery,  were  not  receivable  in  evidence  against 
the  surety.  1  So,  if  one  becomes  surety  in  a  bond,  conditioned 
for  the  faithful  conduct  of  another  as  clerk,  or  collector,  it  is  held, 
that,  in  an  action  on  the  bond  against  the  surety,  confessions  of 
embezzlement  made  by  the  principal  after  his  dismissal,  are  not 
admissible,  in  evidence  ;2  though,  with  regard  to  entries  made  in 
the  course  of  his  duty,  it  is  otherwise.^  A  judgment,  also,  ren- 
dered against  the  principal,  may  be  admitted  as  evidence,  of  that 
fact,  in  an  action  against  the  surety.*  On  the  other  hand,  upon 
the  same  general  ground,  it  has  been  held,  that,  where  the  surety 
confides  to  the  principal  the  power  of  making  a  contract,  he  con- 
fides to  him  the  power  of  furnishing  evidence  of  the  contract ;  and 
that,  if  the  contract  is  made  by  parol,  subsequent  declarations  of 
the  principal  are  admissible  in  evidence,  though  not  conclusive. 
Thus,  where  a  husband  and  wife  agreed,  by  articles,  to  live  sep- 
arate, and  C,  as  trustee  and  surety  for  the  wife,  covenanted  to 
pay  the  husband  a  sum  of  money,  upon  his  delivering  to  the  wife 
a  carriage  and  horses  for  her  separate  use,  it  was  held,  in  an 
action  by  the  husband  for  the  money,  that  the  wife's  admissions 
of  the  receipt  by  her  of  the  carriage  and  horses,  were  admissible.^ 
So,  where  A  guaranteed  the  performance  of  any  contract  that  B 
might  make  with  C,  the  admissions  and  declarations  of  B  were 
held  admissible  against  A,  to  prove  the  contract.^ 

§  188.  Same  subject.  But  where  the  surety,  being  sued  for  the 
default  of  the  principal,  gives  him  notice  of  the  pendency  of  the 
suit,  and  requests  him  to  defend  it;  if  judgment  goes  against 
the  surety,  the  record  is  conclusive  evidence  for  him,  in  a  subse- 
quent action  against  the  principal  for  indemnity ;  for  the  princi- 
pal has  thus  virtually  become  party  to  it.  It  would  seem,  therefore, 
that  in  such  case  the  declarations  of  the  principal,  as  we  have 
heretofore  seen,  become  admissible,  even  though  they  operate 
against  the  surety.^ 

§  189.  Privity.  The  admissions  of  one  person  are  also  evi- 
dence against  another,  in  respect  of  privity  between  them.     The 

1  Evans  v.  Beattie,  5  Esp.  26  ;  Bacon  v.  Chesney,  1  Stark.  192  ;  Longenecker  v. 
Hyde,  6  Binn.  1. 

2  Smith  V.  Whittingham,  6  C.  &  P.  78.  See  also  Goss  v.  Watlington,  3  Brod.  & 
Bing.  132  ;  Cutler  v.  Newlin,  Manning's  Digest,  N.  P.  137,  per  Holroyd,  J.,  in  1819  ; 
Dawes  v.  Shedd,  15  Mass.  6,  9  ;  Foxcroft  v.  Nevins,  4  Greenl.  72  ;  Hayes  v.  Seaver, 
7  Greenl.  237  ;  Respublica  v.  Davis,  3  Yeates,  128  ;  Hotchkiss  v.  Lyon,  2  Blackf. 
222  ;  Shelby  v.  Governor,  &c.,  Id.  289  ;  Beall  v.  Beck,  3  Har.  &  McHen.  242. 

3  Whitnash  v.  George,  8  B.  &  C.  556  ;  Middleton  v.  Melton,  10  B.  &  C.  317  ;  Mc- 
Gahey  v.  Alston,  2  M.  &  W.  213,  214. 

*  Drummond  v.  Prestman,  12  Wheat.  515. 

^  Fenner  v.  Lewis,  10  Johns.  38.  ^  Meade  v.  McDowell,  5  Binn.  195. 

*  See  supra,  §  180,  n.  8,  and  cases  there  cited. 


CHAP.    XI.]  OF   ADMISSIONS.  263 

term  privity  denotes  mutual  or  successive  relationship  to  the  same 
rights  of  property;  and  privies  are  distributed  into  several  classes, 
according  to  the  manner  of  this  relationship.  Thus,  there  are 
privies  in  estate,  as  donor  and  donee,  lessor  and  lessee,  and  joint- 
tenants ;  privies  in  blood,  as  heir  and  ancestor,  and  coparceners; 
privies  in  representation,  as  executors  and  testator,  administra- 
tors and  intestate ;  privies  in  law,  where  the  law,  without  privity 
of  blood  or  estate,  casts  the  land  upon  another,  as  by  escheat. 
All  these  are  more  generally  classed  into  privies  in  estate,  pri- 
vies in  blood,  and  privies  in  law.  ^  The  ground  upon  which  ad- 
missions bind  those  in  privity  with  the  party  making  them  is, 
that  they  are  identified  in  interest;  and,  of  course,  the  rule  ex- 
tends no  farther  than  this  identity.  The  cases  of  coparceners 
and  joint-tenants  are  assimilated  to  those  of  joint-promisors, 
partners  and  others  having  a  joint  interest,  which  have  already 
been  considered. ^  In  other  cases,  where  the  party,  by  his  admis- 
sions, has  qualified  his  own  right,  and  another  claims  to  succeed 
him  as  heir,  executor,  or  the  like,  he  succeeds  only  to  the  right, 
as  thus  qualified,  at  the  time  when  his  title  commenced ;  (a)  and 

1  Co.  Lit.  271  a;  Carver  w.  Jackson,  4  Peters,  1,  83  ;  Wood's  Inst.  L.  L.  Eng.  236; 
Tomlin's  Law  Diet,  in  verb.  Privies.  But  the  admissions  of  executors  and  adminis- 
trators are  not  receivable  against  their  co-executors  or  co-administrators.  Elwood  v. 
Deifendorf,  5  Barb.  S.  C.  498.  Other  divisions  have  been  recognized  ;  namely,  privity 
in  tenure  between  landlord  and  tenant ;  privity  in  contract  alone,  or  the  relation  be- 
tween lessor  and  lessee,  or  heir  and  tenant  in  dower,  or  by  the  curtesy,  by  the  coven- 
ants of  the  latter,  after  he  has  assigned  his  term  to  a  stranger  ;  privity  in  estate  alone, 
between  the  lessee  and  the  grantee  of  the  reversion  ;  and  privity  in  both  estate  and 
contract,  as  between  lessor  and  lessee,  &c.,  but  these  are  foreign  trom  our  present  pur- 
pose. See  Walker's  Case,  3  Co.  23  ;  Beverley's  Case,  4  Co.  123,  124  ;  supra,  §§  19, 
20,  23,  24. 

2  Hupra,  §§  174,  180. 

{a)  Pickering  v.    Reynolds,   119  Mass.  ter,  8  Bush  (Ky.),  283  ;  Taylor  v.  Webb, 

111 ;  Hayden  v.  Stone,  121  Id.  413  ;  Raw-  .54   Miss.   36  ;   Howell  v.   Howell,   47  Ga. 

son  V.   Plaisted,  151   Ma.ss.  73 ,  Anderson  492),  unless  there  is  jjroof  of  some  fraudu- 

V.  Kent,  14  Kan.  207  ;  Roelke  v.  Andrews,  lent  scheme  between  the  grantor  and  gran- 

26  Wis.   311.     Cf.    Dodge  v.   Freedman's  tee,  e.  g^.,  to  defraud  creditors.    Hartmanv. 

Saving,  &c.  Company,  93  U.  S.  379.     The  Diller,  62  Pa.  St.  37  ;  Boyd  v.  Jones,  60 

admissions  must  be  made  while  the  title  to  Mo.    454  ;  Pier  v.   Duff,  63   Pa.    St.   59  ; 

the  property  in  question  is  in  the  declar-  Hutchings  v.  Castle,  48  Cal.  152  ;  Cuyler 

ant,  and  cannot  affect  a  title  subsequently  v.  McCartney,  33  Barb.  (N.  Y. )  165.     Cf. 

acquired.     Stockwell  u.  Blarney,  129  Mass.  Holbrook    v.    Holhrook,    113    Mass.    75. 

312  ;   Noyes  v.   Merrill,    108  Mass.    396  ;  But  where  the  fact  of  possession  alone  is 

Hutchins  w.  Hutchins,  98  N.  Y.  64;  Hous-  material   to    the   case,  admissions  of  the 

ton  V.   McCluny,  8  W.  Va.  135.     Nor  are  grantor,    while  in  possession  limiting  his 

they  admissible  if  made  after  tiie  declar-  possession,  are  admissible  as  part  of  the 

ant  has  parted  with  his  interest   in  the  res  gestae,  though  made  after  the  title  has 

property  (Pringle  v.    Pringle,  59   Pa.   St.  been  transferred.     Adams  v.  Davidson,  10 

281  ;  Chadwick  v.  Fonne^  69  N.  Y.  404  ;  N.  Y.  App.  309  ;  Downs  v.  Belden,  46  Vt. 

Randegger  v.  Ehrhardt,  51  111.  101  ;  Bent-  674  ;   Gedney  v.    Logan,   79  N.   C.    214. 

ley  V.  0' Bryan,  111  111.  53  ;  Hills  v.  Lud-  See  ante,  §  109  and  notes, 
wig,  46  Oh.  St.  373  ;  Carpenter  v.  Carpen- 


264  LAW   OP   EVIDENCE.  [PART   II. 

the  admissions  arc  receivable  in  evidence  against  the  representa- 
tive in  the  same  manner  as  they  would  have  been  against  the 
party  represented.  Thus,  the  declarations  of  the  ancestor,  that 
he  held  the  land  as  the  tenant  of  a  third  person,  are  admissible 
to  show  the  seisin  of  that  person,  in  an  action  brought  by  him 
against  the  heir  for  the  land.^(6)  Thus,  also,  where  the  defend- 
ant in  a  real  action  relied  on  a  long  possession,  he  has  been  per- 
mitted, in  proof  of  the  adverse  character  of  the  possession, to  give  in 
evidence  the  declarations  of  one  under  whom  the  plaintiff  claimed, 
that  he  had  sold  the  land  to  the  person  under  whom  the  defendant 
claimed.^  And  the  declarations  of  an  intestate  are  admissible 
against  his  administrator,  or  any  other  claiming  in  his  right.  °  (c) 
The  declarations,  also,  of  the  former  occupant  of  a  messuage,  in 
respect  of  which  the  present  occupant  claimed  a  right  of  common, 
because  of  vicinage,  are  admissible  evidence  in  disparagement  of 
the  right,  they  being  made  during  his  occupancy;  and  on  the  same 
principle,  other  contemporaneous  declarations  of  occupiers  have 
been  admitted,  as  evidence  of  the  nature  and  extent  of  their  title, 
against  those  claiming  in  privity  of  estate.^  (c?)  Any  admission 
by  a  landlord  in  a  prior  lease,  which  is  relative  to  the  matter  in 
issue,  and  concerns  the  estate,  has  also  been  held  admissible  in 
evidence  against  a  lessee  who  claims  by  a  subsequent  title.' 

3  Doe  V.  Pettet,  5  B.  &  Aid.  223  ;  2  Poth.  on  Obi.  by  Evans,  p.  254  ;  supra,  §§  108, 
109,  and  cases  there  cited. 

*  Brattle  Street  Church  v.  Bullard,  2  I\Iet.  363.  And  see  Padgett  v.  Lawrence,  10 
Paige,  170  ;  Dorsey  v.  Dorsey,  3  H.  &  J.  410  ;  Clary  v.  Grimes,  12  G.  &  J.  31. 

6  Smith  V.  Smith,  3  Bing.  N.  C.  29  ;  Ivat  v.  Finch,  1  Taunt.  141. 

^  Walker  v.  Broadstock,  1  Esp.  458  ;  Doe  v.  Austin,  9  Bing.  41  ;  Davies  v.  Pierce, 
2  T.  R.  53  ;  Doe  v.  Rickarby,  5  Esp.  4  ;  Doe  v.  Jones,  1  Campb.  367.  Ancient  maps, 
books  of  survey,  &c.,  though  mere  private  documents,  are  frequently  admissible  on 
this  ground,  where  there  is  a  privity  in  estate  between  tlie  former  proprietor,  under 
whose  direction  they  were  made,  and  the  present  claimant,  against  wliom  thej'  are 
offered.  Bull.  N.  P.  283  ;  Bridgman  v.  Jennings,  1  Ld.  Raym.  734.  So,  as  to  re- 
ceipts for  rent,  by  a  former  grantor,  under  whom  both  parties  claimed.  Doe  v.  Seaton, 
2  Ad.  &  El.  171. 

^  Crease  v.  Barrett,  1  C.  M.  &  R.  919,  932.  See  also  Doe  v.  Cole,  6  C.  &  P.  359,  that  a 
letter  written  by  a  former  vicar,  respecting  the  property  of  the  vicarage,  is  evidence  against 
his  successor,  in  an  ejectment  for  the  same  property,  in  right  of  his  vicarage.  The 
receipts,  also,  of  a  vicar's  lessee,  it  seems,  are  admissible  against  the  vicar,  in  proof  of 
a  modus,  by  reason  of  the  privity  between  them.  Jones  v.  Carrington,  1  C.  &  P.  329, 
330,  n.  ;  Maddison  v.  Nuttal,  6  Bing.  226.  So,  the  answer  of  a  former  rector.  De 
Whelpdale  v.  Alilburn,  5   Price,  485.     An  answer  in  chancery  is  also  admissible  in 

{b)  McFadden  v.  Ellmaker,  52  Cal.  348;  as  against  his  successor.     Eckert  v.  Trip- 

Foote  V.  Beecher,  78  N.  Y.  155  ;  Lewis  v.  lett,  48  Ind.  174. 

Adams,  61  Ga.  559.  And  generally  of  (c)  Platner  v.  Platner,  78  N.  Y.  90. 
admissions  in  disparagement  of.  title,  by  So  the  admissions  of  the  testator  that  cer- 
one  under  whom  the  jicrson  against  whom  tain  goods  which  a  devisee  claimed  under 
the  declarations  are  offered  claims.  Alex-  a  title  from  the  testator  by  the  will,  did 
ander  v.  Caldwell,  55  Ala.  517.  So  of  de-  not  belong  to  him,  is  good  against  the  de- 
visor against  devisee.  Mueller  v.  Rebhan,  visee.  Fellows  v.  Smith,  130  Mass.  378. 
94  111.  142.     So  of  a  former  administrator          (d)  Ante,  §  145,  notes. 


CHAP.    XI  ]  OF   ADMISSIONS.  265 

§  190.  Assignors  as  against  assignee.  The  same  principle  holds 
in  regard  to  achnusions  made  by  the  assignor  of  a  personal  contract 
or  chattel,  previous  to  the  assignment,  while  he  remained  the  sole 
proprietor,  and  where  the  assignee  must  recover  through  the  title 
of  the  assignor,  and  succeeds  only  to  that  title  as  it  stood  at  the 
time  of  its  transfer,  (a)  In  such  case,  he  is  bound  by  the  previous 
admissions  of  the  assignor,  in  disparagement  of  his  own  apparent 
title.  But  this  is  true  only  where  there  is  an  identity  of  inter- 
est between  the  assignor  and  assignee;  and  such  identity  is 
deemed  to  exist  not  only  where  the  latter  is  expressly  the  mere 
agent  and  representative  of  the  former,  but  also  where  the  as- 
signee has  acquired  a  title  with  actual  notice  of  the  true  state  of 
that  of  the  assignor,  as  qualified  by  the  admissions  in  question, 
or  where  he  has  purchased  a  demand  already  stale,  or  otherwise 
infected  with  circumstances  of  suspicion.  ^  Thus,  the  declara- 
tions of  a  former  holder  of  a  promissory  note,  negotiated  before 
it  was  overdue,  showing  that  it  was  given  without  consideration, 
though  made  while  he  held  the  note,  are  not  admissible  against 
the  indorsee;  for,  as  was  subsequently  observed  by  Parke,  J., 
"the  right  of  a  person,  holding  by  a  good  title,  is  not  to  be  cut 
down  by  the  acknowledgment  of  a  former  holder  that  he  had  no 
title.  "^     But,  in  an  action  by  the  indorsee  of  a  bill  or  note  dis- 

evidence  against  any  person  actually  claiming  under  the  party  who  put  it  in  ;  and  it 
has  been  held  prima  facie  evidence  against  [)ersons  generally  reputed  to  claim  under 
him,  at  least  so  far  as  to  call  upon  them  to  show  another  title  from  a  stranger.  Earl  of 
Sussex  V.  Temple,  1  Ld.  Raym.  310  ;  Countess  of  Dartmouth  v.  Roberts,  16  East, 
334,  339,  3-tO.  So,  of  other  declarations  of  the  former  party  in  possession,  which 
would  have  been  good  against  himself,  and  were  made  while  he  was  in  possession. 
Jackson  v.  Bard,  4  Johns.  230,  234  ;  Norton  v.  Pettibone,  7  Conn.  319  ;  Weidman  v. 
Kohr,  4  Serg.  &  R.  174  ;  supra,  §§  23,  24. 

1  Harrison  v.  Vallance,  i  Bing.  4.5  ;  Bayley  on  Bills,  by  Phillips  and  Sewall,  pp. 
502,  503,  and  notes  (2d  Am.  ed.)  ;  Gibblehouse  v.  Stong,  3  Rawle,  437  ;  Hatch  v. 
Dennis,  1  Fairf.  244  ;  Snelgrove  v.  Martin,  2  McCord,  241,  243. 

'^  Barough  v.  White,  4  B.  &  C.  325,  explained  in  Woolvvay  v.  Rowe,  1  Ad.  &  El. 
114,  116  ;  Shaw  v.  Broom,  4  D.  &  R.  730  ;  Smith  v.  De  Wruitz,  Ry.  &  M.  212  ;  Beau- 
champ  V.  Parry,  1  B.  &  Ad.  89  ;  Hackett  v.  Martin,  8  Greenl.  77  ;  Parker  v.  Grout,  11 
Mass.  157,  n.  ;  Jones  v.  Witter,  13  Mass.  304  ;  Dunn  v.  Snell,  15  Mass.  481  ;  Paige  v. 

{a)  In  Alger  v.  Andrews,  47  Vt.  238,  claims.  So  declarations  of  the  seller  of 
the  Vermont  rule  was  stated  in  the  words  personal  property,  made  after  the  sale  and 
of  the  text  by  Barrett,  J.,  overruling  the  after  he  has  parted  with  possession,  are 
case  of  Hines  v.  Soule,  14  Vt.  99,  and  re-  inadmissible  against  the  buyer.  Downs  v. 
ferring  to  the  cases  of  Hayward  Rubber  Belden.  46  Vt.  674  ;  Keystone  Manufac- 
Co.  V.  Duncklee,  30  Vt.  29,  and  Miller  v.  turing  Co.  v.  Johnson,  50  Iowa,  142;  Ben- 
Bingham,  29  Vt.  82,  as  the  leading  cases  son  v.  Lundy,  52  Iowa,  265  ;  Many  v. 
on  this  subject  in  that  State.  In  these  Jagger,  1  Blatchf.  C.  C.  372,  376  ;  Camp- 
cases,  as  was  said  supra,  §  189,  in  refer-  bell  v.  Coon,  51  Ind.  76  ;  Magee  v.  Rai- 
ence  to  the  admissions  of  a  grantor,  it  was  guel,  64  Pa.  St.  110.  As  to  declarations 
held  that  the  admission  must  be  made  qualifying  the  act  of  possession,  when  that 
while  the  person  making  the  admission  act  is  relevant,  see  ante,  §  189,  n.  (a). 
has  the  interest  under  which  his  a.ssignee 


266 


LAW   OF   EVIDENCE. 


fPART   II. 


honored  before  it  was  negotiated,  the  declarations  of  the  indorser, 
made  while  the  interest  was  in  him,  are  admissible  in  evidence 
for  the  defendant.^  (^) 

§  191.  Mode  of  proof.  These  admissions  by  third  persons,  as 
they  derive  their  value  and  legal  force  from  the  relation  of  the 
party  making  them  to  the  property  in  question,  and  are  taken  as 
parts  of  the  res  fiestce,  may  be  proved  by  any  comjjetent  witness  who 
heard  them,  without  calling  the  party  by  whom  they  were  made,  (a) 
The  question  is,  whether  he  made  the  admission,  and  not  merely 
whether  the  fact  is  as  he  admitted  it  to  be.  Its  truth,  where  the 
admission  is  not  conclusive  (and  it  seldom  is  so),  may  be  contro- 
verted by  other  testimony:  even  by  calling  the  party  himself, 
when  competent;  but  it  is  not  necessary  to  produce  him,  his 

Cagwin,  7  Hill  (N.  Y.),  361.  In  Connecticut,  it  seems  to  have  been  held  otherwise. 
Johnson  v.  Blackman,  11  Conn.  342  ;  Woodruflf  v.  Westcott,  12  Conn.  134.  So  in 
Vermont.     Sargeant  v.  Sargeant,  18  Vt.  371. 

3  Bay  ley  on  Bills,  502,  503,  and  notes  (2d  Am.  ed.  by  Phillips  &  Sewall)  ;  Pooock 
V.  Billings,  Ky.  &  M.  127.  See  also  Story  on  Bills,  §  220  ;  Chitty  on  Bills,  650  (8th 
ed. )  ;  Hatch  v.  Dennis,  1  Fairf.  249  ;  Shirley  v.  Todd,  9  Greenl.  83. 


(b)  In  a  suit  against  the  maker  of  a 
promissory  note  by  one  who  took  it  when 
overdue,  the  declarations  of  a  prior  holder, 
made  while  he  held  the  note,  after  it  was 
due,  are  admissible  in  evidence  to  show 
payment  to  such  prior  holder,  or  any  right 
of  set-off  which  the  maker  had  against  him. 
But  such  declarations,  made  by  such 
holder  before  he  took  the  note,  are  inad- 
missible. So  such  declarations,  made  by 
such  holder  after  assigning  the  note  to  one 
from  whom  the  plaintiff  since  took  it,  are 
inadmissible,  unless  such  assignment  was 
conditioned  to  be  void  upon  the  payment 
to  the  assignor  of  a  less  sum  than  the 
amount  due  on  the  note,  in  which  case 
such  declarations  are  admissible  in  evi- 
dence for  the  defendant  to  the  extent  of 
the  interest  remaining  in  such  prior  holder. 
Bond  V.  Fitzpatrick,  4  Gray,  89,  92  ;  Syl- 
vester V.  Crapo,  15  Pick.  92  ;  Fisher  v. 
True,  38  Maine,  534 ;  McLanathan  v. 
Patten,  39  Id.  1 42  ;  Scammon  v.  Scara- 
mon,  33  N.  H.  52,  58  ;  Criddle  v.  Criddle, 
21  Mo.  522.  See  Jermain  i-.  Denniston,  6 
N.  Y.  Ct.  App.  276  ;  Boot  v.  Sweezey,  8 
Id.  276  ;  Tousley  v.  Barry,  16  Id.  497. 
The  practice  in  the  different  States,  in  re- 
gard to  admitting  the  declarations  of  the 
owner  of  a  chose  in  action,  while  holding 
the  same,  it  not  being  negotiable,  or,  if  so, 
being  at  the  time  overdue,  to  the  effect 
that  the  same  had  been  paid,  or  is  other- 
wise invalid,  and  this  as  against  a  subse- 
quent bona  fide  owner,  is  not  uniform. 


See  Miller  v.  Bingham,  29  Yt.  82,  where 
such  declarations  were  held  admissible. 
The  cases  cited  above  from  New  York 
show  that  such  declarations  are  not  there 
admissible.  The  English  rule  seems  in 
favor  of  receiving  such  declarations,  as  to 
the  title  of  all  personalty.  Harrison  v. 
Vallance,  1  Bing.  45  ;  Shaw  v.  Broom,  4 
Dow.  &  Ry.  730  ;  Pocock  v.  Billing,  2 
Bing.  269.  But  see  Carpenter  v.  HoUister, 
13  Vt.  552,  where  the  question  as  to  real 
estate  is  fully  discussed.  Where  goods  are 
claimed  by  virtue  of  a  pledge,  declarations 
in  disparagement  of  his  title  made  by  the 
pledgor,  before  he  made  the  pledge,  are 
admissible  without  calling  him  as  a  wit- 
ness. Alger  V.  Andrews,  47  Vt.  238.  But 
when  admissions  in  disparagement  of  a  title 
are  admitted,  it  is  not  allowable  for  the 
other  party  to  detract  from  the  force  of 
this  evidence  by  proving  later  and  contra- 
dictory statements  made  by  the  same  per- 
son under  other  circum.stances  in  favor  of 
his  title.  Royal  v.  Chandler,  79  Me.  265. 
In  the  case  of  Baxter  r.  Knowles,  12  Al- 
len, 114,  it  is  said:  "The  declarations  of 
the  defendant's  testator,  from  whom  he 
claimed  title,  were  not  made  admissible  in 
his  favor  by  the  fact  that  his  declarations 
at  other  times  were  given  in  evidence  by 
the  plaintiff  as  admissions."  Pickering  v. 
Reynolds,  119  Mass.  Ill,  is  to  the  same 
effect. 

(a)  Miller  v.  Wood,  44  Vt.  378. 


CHAP.    XI.]  OF   ADMISSIONS.  '  267 

declarations,  when  admissible  at  all,  being  admissible  as  origi- 
nal evidence,  and  not  as  hearsay.^  (i) 

§  192.  Time  and  circumstance.  Wc  are  next  to  consider  the 
time  and  circumstances  of  the  admission.  And  here  it  is  to  be 
observed  that  confidential  overtures  of  pacification,  and  any  other 
offers  or  propositions  between  litigating  parties,  expressly  stated 
to  be  made  without  prejudice,  are  excluded  on  grounds  of  pul)lic 
policy.^  (a)  For,  without  this  protective  rule,  it  would  often  be 
difficult  to  take  any  step  towards  an  amicable  compromise  or  ad- 
justment. A  distinction  is  taken  between  the  admission  of  par- 
ticular facts  and  an  offer  of  a  sum  of  money  to  buy  peace.  For, 
as  Lord  Mansfield  observed,  it  must  be  permitted  to  men  to  buy 
their  peace  without  prejudice  to  them,  if  the  offer  should  not 
succeed ;  and  such  offers  are  made  to  stop  litigation,  without 
regard  to  the  question  whether  anything  is  due  or  not.  If,  there- 
fore, the  defendant,  being  sued  for  .£100,  should  offer  the  plain- 
tiff X20,  this  is  not  admissible  in  evidence,  for  it  is  irrelevant 
to  the  issue;  it  neither  admits  nor  ascertains  any  debt;  and  is  no 
more  than  saying,  he  would  give  X20  to  be  rid  of  the  action.  ^  (6) 

3  Supra,  §§  101,  113,  114,  and  cases  there  cited  ;  Clark  v.  Hougham,  2  B.  &  C. 
149  ;  Mountstepheu  v.  Brooke,  3  B.  &  Aid.  141  ;  Woolway  v.  Rowe,  1  Ad.  &  El.  114; 
Payson  v.  Good,  3  Kerr,  272. 

1  Cory  V.  Bretton,  4  C.  &  P.  462  ;  Healey  v.  Thatcher,  8  C.  &  P.  388.  Communi- 
cations between  the  clerk  of  the  plaiiititf' s  attorney,  and  the  attorney  of  the  defendant, 
with  a  view  to  a  compromise,  have  been  held  privileged,  under  this  rule.  Jardine  v. 
Sheridan,  2  C.  &  K.  24. 

2  Bull.  N.  P.  236  ;  Gregory  v.  Howard,  3  Esp.  113,  Ld.  Kenyon  ;  Marsh  v.  Gold,  2 
Pick.  290;  Gerrish  v.  Sweetser,  4  Pick.  374,  377  ;  Waynian  v.  Hilliard,  7  Bing.  101; 
Cumming  v.  French,  2  Campb.  106,  n.  ;  Gla.ssford  on  Evid.  p.  336.  See  Molyneaux 
V.  Collier,  13  Ga.  406.  But  an  offer  of  compromise  is  admissible,  where  it  is  only  one 
step  in  the  proof  that  a  compromise  has  actually  been  made.  Collier  v.  Nokes,  2  G.  & 
K.  1012. 

{b)   The   witness  by  whom  an  adrais-  who  make  an  offer  of  compromise  could 

sion  is  proved  may  state  the  substance  of  prevent  that   offer   and   the  letters  from 

the  admission  if  he  cannot  remember  the  being  afterwards  ffivea  in  evidence,  and 

exact  words.      Kittridge  v.   Russell,    114  made   use  of  against  them,  it  is  obvious 

Mass.  67.  that  no  such  letters  would  be  written  or 

{a)  In  Jones  v.  Foxall,   13   Eng.  Law  offers  made.     In  my  opinion,  such  letters 

&  Eq.  140,   145,  15  Beav.   338,  Sir  John  and  offers  are  admissible  for  one  purpose 

Romilly,    Master  of  the  Rolls,  said:    "I  only,  i.  e.,  to  show  that  an  attempt  has 

shall,  as  far  as  I  am  able,   in  all  cases,  been  made  to  compromise  the  suit,  which 

endeavor   to  suppress   a   practice   which,  may  be  sometimes  necessary  ;   as,  for  in- 

when  I  was  first  acquainted  with  the  pro-  stance,   in  order  to  account  for  lapse   of 

fession,  was  rarely,  if  ever,  ventured  upon,  time,  but  never  to  fix  the  persons  making 

but  which,   according  to  my  experience,  them  with  admissions  contained  in  such 

has   been  common  of  late  ;  namely,  that  letters ;  and  I  shall  do  all   I   can  to  dis- 

of  attempting  to  convert  offers  of  compro-  courage  this,  which  I  consider  to  be  a  very 

mise  into  admissions  and  acts  prejudicial  injurious  practice."   To  this  effect  is  Louis- 

to  the  parties  making  them.     If  this  were  ville.  New  Alb  &  Chic.  R.  R.  Co.  v.  Wright, 

permitted,    the  effect  would   be   that   no  115  Ind.  390. 

attempt  to  compromise  a  suit  would  ever  (b)   Williams   f.    State,    52  Ala.   411  ; 

be  made.     If  no  reservation  of  the  parties  Barker  v.   Bushnell,  75  111.  220  ;  Payne 


268  LAW   OP   EVIDENCE.  [PART   II. 

But,  in  order  to  exclude  distinct  admissions  of  facts,  it  must  ap- 
pear either  that  they  were  expressly  made  without  prejudice,  or, 
at  least,  that  they  were  made  under  the  faith  of  a  pending  treaty, 
and  into  which  the  party  might  have  been  led  by  the  confidence 
of  a  compromise  taking  place,  (c)  But,  if  the  admission  be  of  a 
collateral  or  indifferent  fact,  such  as  the  handwriting  of  the  party, 
capable  of  easy  proof  by  other  means,  and  not  connected  with  the 
merits  of  the  cause,  it  is  receivable,  though  made  under  a  pend- 
ing treaty.^  It  is  the  condition,  tacit,  or  express,  that  no  advan- 
tage shall  be  taken  of  the  admission,  it  being  made  with  a  view 
to,  and  in  furtherance  of,  an  amicable  adjustment,  that  operates 
to  exclude  it.  But,  if  it  is  an  independent  admission  of  a  fact, 
merely  because  it  is  a  fact,  it  will  be  received ;  (d)  and  even  an 
offer  of  a  sum,  by  way  of  compromise  of  a  claim  tacitly  admitted, 
is  receivable,  unless  accompanied  with  a  caution  that  the  offer  is 
confidential.'*  (g) 

3  Waldridge  v.  Kennison,  1  Esp.  143,  per  Lord  Kenyon.  The  American  courts  have 
gone  farther,  and  held,  that  evidence  of  the  admission  of  any  independent  fact  is  re- 
ceivable, though  made  during  a  treaty  of  compromise.  See  Mount  v.  Bogert,  Anthon's 
Rep.  259,  per  Thompson,  C.  J.  ;  Murray  v.  Coster,  4  Cowen,  635  ;  Fuller  v.  Hampton, 
5  Conn.  416,  426  ;  Sanborn  v.  Neilson,  4  N.  H.  501,  508,  509  ;  Delogny  v.  Rentoul, 
2  Martin,  175  ;  Marvin  v.  Richmond,  3  Den.  58  ;  Cole  v.  Cole,  33  Me.  542.  Lord 
Kenyon  afterwards  relaxed  his  own  rule,  saying  that  in  future  he  should  receive  evi- 
dence of  all  admissions,  such  as  the  party  would  be  obliged  to  make  in  answer  to  a  bill 
in  equity  ;  rejecting  none  but  such  as  are  meiely  concessions  for  the  sake  of  making 
peace  and  getting  rid  of  a  suit.  Slack  v.  Buchanan,  Peake's  Cas.  5,  6  ;  Tait  on  Evid. 
p.  293.  A  letter  written  by  the  adverse  party,  "without  prejudice,"  is  inadmissible. 
Healey  v.  Thatcher,  8  C.  &  P.  388. 

*  Wallace  v.  Small,  1  M.  &  M.  446  ;  Watts  v.  Lawson,  Id.  447,  n.  ;  Dickinson  v. 
Dickinson,  9  Met.  471 ;  Thomson  v.  Austen,  2  Dowl.  &  Piy.  358.  In  this  case  Bay- 
ley,  J.,  remarked  that  the  essence  of  an  offer  to  compromise  was,  that  the  party  making 
it  was  willing  to  submit  to  a  sacrifice,  and  to  make  a  concession.  Hartford  Bridge  Co. 
V.  Granger,  4  Conn.  148  ;  Gerrish  v.  Sweetser,  4  Pick.  374,  377  ;  Murray  v.  Coster,  4 
Cowen,  617,  635.  Admissions  made  before  an  arbitrator  are  receivable  in  a  subsequent 
trial  of  the  cause,  the  reference  having  proved  ineffectual.  Slack  v.  Buchanan,  Peake's 
Cas.  1.     See  also  Gregory  v.  Howard,  3  Esp.  113.     Collier  v.  Nokes,  2  C.  &  K.  1012. 

V.  42d  St.  R.  R.  Co.,  40  N.  Y.  Super.  Ct.  Doon  v.  Rarey,  49  Vt.  293  ;  Plummer  v. 

8;    Durgin    v.    Somers,    117    Mass.    56;  Currier,  52  N.  H.  282  ;  Bartlett  w.  Tarbox, 

Draper   v.   Hatfield,    124   Mass.-  53  ;  Gay  1  Abb.  (N.  Y.)  App.  Dec.  120  ;  Snow  v. 

V.  Bates,  99  Mass.  263  ;  Daniels  v.  Woon-  Batchelder,  8  Cush.  (Mass.)  513. 
socket,  11  R.  I.  4  ;   Strong  v.  Stewart,   9  (e)  Brice  v.    Bauer,    108    N.    Y.   433. 

Heisk.  (Tenn.)  137.  The    rule  was  thoroughly  discussed   in  a 

(c)  Campau  v.  Dubois,  39  Mich.  274.  recent  case  in  New  York,  White  v.  Old 
If  the  offer  appear  to  be  an  offer  of  com-  Dominion  Steamship  Conipany,  102  N.  Y. 
promise,  it  is  not  necessary  to  show  that  662.  The  couit  there  holds  that  the  rule 
the  offer  was  made  without  prejudice,  is  well  established  in  this  country,  that  the 
That  is  presumed  from  the  nature  of  the  admission  of  a  distinct  fact  wliich  in  it- 
offer.  West  V.  Smith,  101  U.  S.  263  ;  self  tends  to  e.stablish  a  cause  of  action  or 
Lofts  V.  Hudson,   2  M.  &  R.  481-484.  defense,  is  not  rendered  inadmissible  from 

(d)  Central  Branch  U.  P.  R.  R.-Co.  v.  the  circumstance  that  it  was  made  during  a 
Butman,  22  Kan.  639;  Louisville,  New  discussion  relating  to  a  compromise,  unless 
Alb.  &  Chic.  R.  R.  Co.  v.  Wright,  115  itis  expresslystated  to  be  made  without  ]ire- 
Ind.  390  ;  Binfoiji  v.  Young,  115  Ind.  176;  judice  ;  but  if  the  admission  is  of  such  a 


CHAP.    XI.]  OF    ADMISSIONS.  269 

§  193.  Constraint.  In  regard  to  admissions  made  under  cir- 
cumstances of  constraint,  a  distinction  is  taken  between  civil  and 
criminal  cases ;  and  it  has  been  considered,  that,  on  the  trial  of 
civil  actions,  admissions  are  receivable  in  evidence,  provided  the 
compulsion  under  which  they  are  given  is  legal,  and  the  party 
was  not  imposed  upon,  or  under  duress,  (a)  Thus,  in  the  trial  of 
Collett  V.  Lord  Keith,  for  taking  the  plaintiff's  ship,  the  testi- 
mony of  the  defendant,  given  as  a  witness  in  an  action  between 
other  parties,  in  which  he  admitted  the  taking  of  the  ship,  was 
allowed  to  be  proved  against  him;  though  it  appeared  that,  in 
giving  his  evidence,  when  he  was  proceeding  to  state  his  reasons 
for  taking  the  ship.  Lord  Kenyon  had  stopped  him  by  saying  it 
was  unnecessary  for  him  to  vindicate  his  conduct.^  The  rule  ex- 
tends also  to  answers  voluntarily  given  to  questions  improperly 
asked,  and  to  which  the  witness  might  successfully  have  objected. 
So,  the  voluntary  answers  of  a  bankrupt  before  the  commissioners 
are  evidence  in  a  subsequent  action  against  the  party  himself, 
though  he  might  have  demurred  to  the  questions ;  or  the  whole^ 
examination  was  irregular,^  unless  it  was  obtained  by  imposition 
or  duress.^ 

§  194.  Direct  and  incidental.  There  is  no  difference,  in  regard 
to  the  admissibility  of  this  sort  of  evidence,  between  direct  ad- 

1  Collett  V.  Lord  Keith,  4  Esp.  212,  per  Le  Blanc,  J.,  who  remarked,  that  the  man- 
ner in  which  the  evidence  had  been  obtained  might  be  matter  of  observation  to  the 
jury  ;  but  that,  if  what  was  said  bore  in  any  way  on  the  issue,  he  was  bound  to  receive 
itas  evidence  of  the  fact  itself.     See  also  Milward  v.  Forbes,  4  Esp.  171. 

2  Stockfleth  V.  De  Tastet,  4  Campb.  10  ;  Smith  v.  Beadnell,  1  Campb.  30.  If  the 
commission  has  been  perverted  to  improper  purposes,  the  remedy  is  by  an  application 
to  have  the  examination  taken  from  the  tiles  and  cancelled.  4  Campb.  1],  per  Ld. 
EUenborough  ;  Alilward  v.  Forbes,  4  Esp.  171  ;  2  Stark.  Evid.  22. 

3  Robson  V.  Alexander,  1  Moore  &  P.  448  ;  Tucker  v.  Barrow,  7  B.  &  C.  623.  But 
a  legal  necessity  to  answer  the  rpiestions,  under  peril  of  punishment  for  contempt,  it 
seems,  is  a  valid  objection  to  the  admission  of  the  answers  in  evidence  in  a  criminal 
prosecution.  Rex  v.  Britton,  1  M.  &  Rob.  297-  The  case  of  Rex  v.  Merceron,  2  Stark. 
3<3t),  which  seems  to  the  contrary,  is  questioned  and  explained  by  Lord  Tenterden,  in 
Rex  V.  Gilham,  1  Mood.  Cr.  Cas.  203.  See  ivfm,  §§  225,  451  ;  Reg.  v.  Garbett,  1 
Denis.  C.  C  236. 

nature  as  that  the  court  can  see  it  would  tion    may   be    converted   into   a  trap    to 

not  have  been  made  except  for  the  purpose  inveigle  the  unwary  into  hazardous  admis- 

of  forwarding  the  objects  of  the  negotia-  sions.     The  law,  therefore,  excludes  such 

tion.  and  under  such  circumstances  that  admissions  as  appear  to  have  been  made 

an  agreement  could  fairly  be  implied  there-  tentatively  or  hypothetically,  but  admits 

from,  that  it  was  not  to  be  used  afterwards  those  only  which  concede  the  existence  of 

to  the  prejudice  of  the  party  making  it,  a  fact.     White  v.  Old  Dominion  Steamship 

the  court  will  exclude  the  evidence.     The  Co.,  supra. 

rule  is  said  to  be  founded  upon  public  pol-  (a)  The  rule  excluding  confessions  made 

icy,  and  with  a  view  of  encouraging  and  under  undue  influence,  applies  only  to  the 

facilitating  the  settlement  of  legal  contro-  confessions  of  a  person  on  trial  in  a  crim- 

versies  by  compromise,    which    object   is  inal   case.     Newhall  v.  Jenkins,    2   Gray 

supposed  to  be  obstructed  by  the  fear  en-  (Mass.),  562. 
tertained  by  litigants  that  such  a  negotia- 


270  ,  LAW    OF    EVIDENCE.  [PART    II. 

missions  and  those  which  are  incidental  or  made  in  some  other 
connection,  or  involved  in  the  admission  of  some  other  fact. 
Thus,  where,  in  an  action  against  the  accei)tor  of  a  bill,  his  at- 
torney gave  notice  to  the  plaintiff  to  produce  at  the  trial  all 
papers,  &c.,  which  had  been  received  by  him  relating  to  a  certain 
bill  of  exchange  (describing  it),  which  "was  accepted  by  the  said 
defendant;"  this  was  held  prima  facie  evidence,  by  admission 
that  he  accepted  the  bill.^  So,  in  an  action  by  the  assignees  of 
a  bankrupt,  against  an  auctioneer,  to  recover  the  proceeds  of 
sales  of  a  bankrupt's  goods,  the  defendant's  advertisement  of  the 
sale,  in  which  he  described  the  goods  as  "the  property  of  D.,  a 
bankrupt,"  was  held  a  conclusive  admission  of  the  fact  of  bank- 
ruptcy, and  that  the  defendant  was  acting  under  his  assignees.^ 
So,  also,  an  undertaking  by  an  attorney,  "to  appear  for  T.  and 
R.,  joint  owners  of  the  sloop  'Arundel,'"  was  held  sufficient 
prima  facie  evidence  of  ownership.'^ 

§  195.  Assumed  character.  Other  admissions  are  implied  from 
assumed  character^  language^  and  conduct,  which,  though  hereto- 
fore adverted  to, ^  (a)  may  deserve  further  consideration  in  this 
place.  Where  the  existence  of  any  domestic,  social,  or  official  re- 
lation is  in  issue,  it  is  quite  clear  that  any  recognition,  in  fact,  of 
that  relation,  \?,  prima  facie  evidence  against  the  person  making 
such  recognition,  that  the  relation  exists.  ^  This  general  rule  is 
more  frequently  applied  against  a  person  who  has  thus  recognized 
the  character  or  office  of  another ;  but  it  is  conceived  to  embrace, 
in  its  principle,  any  representations  or  language  in  regard  to  him- 
self. Thus,  where  one  has  assumed  to  act  in  an  official  charac- 
ter, this  is  an  admission  of  his  appointment  or  title  to  the  office, 
so  far  as  to  render  him  liable,  even  criminally,  for  misconduct 
or  neglect  in  such  office.^     So,  where  one  has  recognized  the  offi- 

1  Holt  V.  Sqiiire,  Ey.  &  M.  282. 

2  Maltby  v.  Christie,  1  Esp.  342,  as  expounded  by  Lord  Ellenboroiigh,  in  Rankin 
V.  Horner,  16  East,  193. 

3  Marshall  v.  Cliff,  4  Campb.  133,  per  Ld.  Ellenborough. 
^  Supra,  §  27. 

2  Dickinson  v.  Coward,  1  B.  &  Aid.  677,  679,  per  Ld.  Ellenborough  ;  Radford,  q.  t. 
V.  Mcintosh,  3  T.  R.  632. 

3  Bevan  v.  Williams,  3  T.  R.  635,  per  Ld.  Mansfield,  in  an  action  against  a  clergy- 
man, for  non-residence  ;  Rex  v.  Gardner,  2  Campb.  513,  against  a  military  officer,  for 
returning  false  musters  ;  Rex  v.  Kerne,  2  St.  Tr.  957,  960  ;  Rex  v.  Bronimick,  Id.  961, 
962  ;  Rex  v.  Atkins,  Id.  964,  which  were  indictments  for  high  treason,  being  popish 
priests,  and  remaining  forty  days  within  the  kingdom  ;  Rex  v.  Borrett,  6  C.  &  P.  124, 
an  indictment  against  a  letter-carrier,  for  embezzlement  ;  Trowbridge  v.  Raker,  1  Cowen, 
251,  against  a  toll-gatherer,  for  penalties  ;  Lister  v.  Priestly,  Wight w.  67,  against  a 
collector,  for  penalties.  See  also  Cross  v.  Kaye,  6  T.  R.  663  ;  Lipscombe  v.  Holmes,  2 
Campb.  441  ;  Radford  v.  Mcintosh,  3  T.  R.  632. 

(«)  Seeposi,  §  207. 


CHAP.    XI.]  OF    ADMISSIONS.  271 

cial  character  of  another,  by  treating  with  him  in  such  character, 
or  otherwise,  this  is  at  least  prima  facie  evidence  of  his  title, 
against  the  party  thus  recognizing  if*  So,  the  allegations  in  the 
declaration  or  pleadings  in  a  suit  at  law  have  been  held  receiv- 
able in  evidence  against  the  party,  in  a  subsequent  suit  between 
him  and  a  stranger,  as  his  solemn  admission  of  the  truth  of  the 
facts  recited,  or  of  his  understanding  of  the  meaning  of  an  in- 
strument; though  the  judgment  could  not  be  made  available  as 
an  estoppel,  unless  between  the  same  parties,  or  others  in  privity 
with  them.  ^(6) 

§  196.  Conduct.  Admissions  implied  from  the  conduct  of  the 
party  are  governed  by  the  same  principles.  Thus,  the  su{)pres- 
sion  of  documents  is  an  admission  that  their  contents  are  deemed 
unfavorable  to  the  party  suppressing  them.  ^  (a)  The  entry  of  a 
charge  to  a  particular  person,  in  a  tradesman's  book,  or  the  mak- 
ing out  of  a  bill  of  parcels  in  his  name,  is  an  admission  that  they 
were  furnished  on  his  credit.^  The  omission  of  a  claim  by  an 
insolvent,  in  a  schedule  of  the  debts  due  to  him,  is  an  admission 
that  it  is  not  due.^  Payment  of  money  is  an  admission  against 
the  payer  that  the  receiver  is  the  proper  person  to  receive  it,  but 

*  Peacock  v.  Harris,  10  East,  104,  by  a  renter  of  turnpike  tolls,  for  arrearages  of 
tolls  due  ;  Radford  v.  Mcintosh,  3  T,  R.  632,  by  a  farmer-general  of  tlie  post-horse 
duties,  against  a  letter  of  horses,  for  certain  statute  penalties  ;  Pritchard  v.  Walker, 
3  C.  &  P.  212,  by  the  clerk  of  tlie  trustees  of  a  turnpike  road,  against  one  of  the  trus- 
tees ;  Dickinson  v.  Coward,  1  B.  &  A.  677,  by  the  assignee  of  a  bankrupt,  against  a 
debtor,  who  had  made  the  assignee  a  partial  payment.  In  Berryman  v.  Wise,  4  T.  R. 
366,  which  was  an  action  by  an  attorney  for  slander,  in  charging  him  with  swinclling, 
and  threatening  to  have  him  struck  otf  the  roll  of  attorneys,  the  court  lield  that  this 
threat  imported  an  admission  that  the  plaintiff  was  an  attorney.  Cummin  v.  Smitli,  2 
Serg.  &  R.  440.  But  see  Smith  v.  Taylor,  1  New  R.  196,  in  which  the  learned  judges 
were  equally  divi'dcd  upon  a  point  somewhat  similar,  in  the  case  of  a  physician ;  but,  in  the 
former  case,  the  roll  of  attorneys  was  expressly  mentioned,  while  in  the  latter,  the  plain- 
tiff was  merely  spoken  of  as  "  Doctor  S.,"  and  the  defendant  had  been  employed  as  his 
apothecary.  If,  however,  the  slander  relates  to  the  want  of  qualification,  it  was  held 
by  Jklansfield,  C.  J.,  that  the  plaintiff  must  prove  it  ;  but  not  where  it  was  confined  to 
mere  misconduct.  1  New  R.  207.  See  to  this  point,  Moises  v.  Thornton,  8  T.  R.  303; 
Collins  V.  Carnegie,  1  Ad.  &  El.  695,  703,  per  Ld.  Denman,  C.  J.  See  further,  Divoll 
V.  Leadbetter,  4  Pick.  220  ;  Crofton  v.  Poole,  1  B.  &  Ad.  568  ;  Rex  v.  Barnes,  1  Stark. 
243  ;  Phil.  &  Am.  on  Evid.  369,  370,  371  ;  1  Phil.  Evid.  351,  352. 

6  Tiley  v.  Cowling,  1  Ld.  Ravm.  744  ;  s.  c.  Bull.  N.  P.  243.  See  supra,  §§  171, 
194  ;  infra,  §§  205,  210,  527  a,  555  ;  Robison  v.  Swett,  3  Greenl.  316  ;  Wells  y.  Comp- 
ton,  3  Rob.  (La.)  171  ;  Parsons  v.  Copeland,  33  Me.  370. 

1  James  v.  Biou,  2  Sim.  &  Stu.  600,  606  ;  Owen  v.  Flack,  Id.  606. 

2  Storr  V.  Scott,  6  C.  &  P.  241  ;  Thomson  v.  Davenport,  9  B.  &  C.  78,  86,  90,  91. 

3  Nicholls  V.  Downes,  1  M.  &  Rob.  13  ;  Hart  t;.  Newman,  3  Canipb.  13.  See  also 
Tilghman  v.  Fisher,  9  Watts,  441. 

{h)  Williams  v.Chenev,  3  Gray(Mass.),  See  also   ante,  §  37.     So  the  attempt  to 

215  ;  Judd  v.  Gibbs,  Id.  539.     See  Church  suborn  false  witnesses  is  cogent  evidence  of 

V.  Shelton,  2  Curt.  C.   C.  271  ;  State  v.  an  admission,  by  conduct,  that  the  ])arty's 

Littlefield,  3  R.  I.  124.  cause  is  an  unrighteous  one.     iMoriarty  v. 

(a)  Eldridge  v.  Hawley,  116  Mass.  410.  Lon.  C.  &  D.  R.  R.  Co.,  L.  R.  5  Q.  B.  314. 


272  LAW   OP   EVIDENCE.  [PART   II. 

not  against  the  receiver  that  the  payer  was  the  person  who  was 
bound  to  pay  it;  for  the  party  receiving  payment  of  a  just  de- 
mand may  well  assume,  without  inquiry,  that  the  person  tender- 
ing the  money  was  the  person  legally  bound  to  pay  it.'*  Acting 
as  a  bankrupt,  under  a  commission  of  bankruptcy,  is  an  admission 
that  it  was  duly  issued.^  Asking  time  for  the  payment  of  a  note 
or  bill  is  an  admission  of  the  holder's  title,  and  of  the  signature 
of  the  party  requesting  the  favor;  and  the  indorsement  or  accept- 
ance of  a  note  or  bill  is  an  admission  of  the  truth  of  all  the  facts 
which  are  recited  in  it.^(J) 

§  197.  Silence  and  acquiescence.  Admissions  may  also  be  im- 
plied from  the  acquiescence  of  the  party.  But  acquiescence,  to 
have  the  effect  of  an  admission,  must  exhibit  some  act  of  the 
mind,  and  amount  to  voluntary  demeanor  or  conduct  of  the  party.  ^ 
And  whether  it  is  acquiescence  in  the  conduct  or  in  the  language  of 
others,  it  must  plainly  appear  that  such  conduct  was  fully  known, 
or  the  language  fully  understood  by  the  party,  before  any  inference 
can  be  drawn  from  his  passiveness  or  silence,  (a)  The  circum- 
stances, too,  must  be  not  only  such  as  afforded  him  an  opportunity 
to  act  or  to  speak,  but  such  also  as  would  properly  and  naturally 
call  for  some  action  or  reply,  from  men  similarly  situated. ^  (6) 

*  James  v.  Biou,  2  Sim.  &  Stu.  600,  606  ;  Chapman  r.  Beard,  3  Anstr.  942. 

^  Like  V.  Howe,  6  Esp.  20  ;  Clarke  v.  Clarke,  Id.  61. 

6  Helmsley  v.  Loader,  2  Campb.  450  ;  Critchlow  v.  Parry,  Id.  182  ;  AVilkinson  v. 
Lutwidge,  1  Stra.  648  ;  Rol.insoii  v.  Yarrow,  7  Taunt.  455  ;  Taylor  v.  Croker,  4  Esp. 
187;  Bass  v.  Clive,  4  M.  &  S.  13.  See  further,  Bayley  on  Bills,  by  Phillips  &  Sewall, 
pp.  496-506  ;  Phil.  &  Am.  on  Evid.  383,  n.  (2)  ;  1  PhiL  Evid.  364,  n.  (1),  and  cases 
tll6rG  citBci. 

1  Allen  v.  McKeen,  1  Sumn.  314  ;  Carter  ??.  Bennett,  4  Fla.  340. 

2  To  affect  a  party  with  the  statements  of  others,  on  the  ground  of  l^is  implied  admis- 
sion of  their  truth  by  silent  acquiescence,  it  is  not  enough  that  they  w-^re  made  in  his 

i> 

{h)  So  on  the  issue  whether  a  landlord  104  ;    Com.    v.    Kenney,    12    Met.    235  ; 

or  his  tenant  was  to  keep  in  repair  a  plat-  Brainard  v.   Buck,   25  Vt.  573  ;    Corser  v. 

form  in  front  of  a  shop,  evidence  that,  after  Paul,  41   N.  H.   24;   Wilkins  v.   Stidger, 

an  injury  caused  by  a  defect  in  the  plat-  22  Cal.  231  ;    Abercrombie   v.  Allen,   29 

form,  the  landlord  repaired  it,  is  compe-  Ala.  281  ;    Roife  v.  Rolfe,    10    Ga.    143. 

tent  as  an  admission  that  it  was  his  duty  And  it  must  ajjpear  that  the  party  knew 

to  keep  the  i)latform  in  repair.     Roadman  of  the  subject-matter  stated,  or  had  means 

V.  Conway,  126  Mass.  374.  of    knowing.      Edwards    v.    Williams,    3 

(a)  Especially  is  this  true  when  the  Miss.  846  ;  Pierce  v.  Goldsberry,  35  Ind. 
person  against  whom  the  admission  is  used  317.  Morton,  J.,  in  Whitney  v.  Hough- 
is  a  foreigner.  In  that  case,  it  should  be  ton.  127  Mass.  527,  says:  "The  state- 
made  to  appear  that  tlie  convensation  was  ments  made  by  Worce.ster  to  the  plaintiff 
explained  to  him  by  an  interpreter,  so  were  not  made  under  circumstances  which 
that  he  was  in  a  position  to  understand  reasonably  called  upon  him  for  any  reply, 
fully  the  statements  to  which  he  ought  to  He  was  not  required  to  enter  into  a  dis- 
have  replied.  Wright  v.  Maseras,  56  Barb,  cussion  with  Worcester,  and  he  violated 
(N.  Y.)  521.  no  rule  of  duty  or  of  courtesy  by  neglecting 

(b)  People  V.  Driscoll,  107  N.  Y.  424  ;  to  reply.  It  cannot  be  said  that  the  nat- 
Com.  V.  Harvey,  1  Gray,  487,  489  ;  Bos-  ural  and  reasonable  inference  from  his 
ton  &  W.  R.  R.  Corp.  v.  Dana,  Id.  83,  silence  is,"  that  he  admitted  the  truth  of 


CHAP.   XI.]  OF   ADMISSIONS.  273 

Thus,  where  a  landlord  quietly  suffers  a  tenant  to  expend  money 
in  making  alterations  and  improvements  on  the  premises,  it  is 
evidence  of  his  consent  to  the  alterations.^  If  the  tenant  person- 
ally receives  notice  to  quit  at  a  particular  day,  without  objection, 
it  is  an  admission  that  his  tenancy  expires  on  that  day.*  Thus, 
also,  among  merchants,  it  is  regarded  as  the  allowance  of  an  ac- 
count rendered,  if  it  is  not  objected  to,  without  unnecessary  delay.^ 
A  trader  being  inquired  for,  and  hearing  himself  denied,  may 
thereby  commit  an  act  of  bankruptcy.*^  And,  generally,  where  one 
knowingly  avails  himself  of  another's  acts,  done  for  his  benefit, 
this  will  be  held  an  admission  of  his  obligation  to  pay  a  reason- 
able compensation. '(c) 

fn-esence  ;  for,  if  they  were  given  in  evidence  in  a  judicial  proceeding,  he  is  not  at 
iberty  to  interpose  when  and  how  he  pleases,  though  a  party  ;  and  therefore  is  not 
concluded.  Meleu  v.  Andrews,  1  M.  &  M.  336.  See  also  Allen  v.  McKeen,  1  Sunin. 
313,  314,  317;  Jones  v.  Morrell,  1  Car.  &  Kir.  266  ;  Neile  v.  Jakle,  '2  Car.  &  Kir.  709  ; 
Peele  v.  Merch.  Ins.  Co.,  3  Mason,  81  ;  Hudson  v.  Harrison,  3  Brod.  &  Bing.  97  ; 
infra,  §§  201,  215,  287.  If  letters  are  otfered  against  a  party,  it  seems  he  may  read 
his  immediate  replies.  Roe  v.  Day,  7  C.  &  P.  705.  So,  it  seems,  he  may  ijrove  a  pre- 
vious conversation  with  the  party,  to  show  the  motive  and  intention  in  writing  them. 
Reay  v.  Richardson,  2  C.  M.  &  R.  422. 

3  Doe  V.  Allen,  3  Taunt.  78,  80  ;  Doe  v.  Pye,  1  Esp.  366  ;  Neale  i'.  Parkin,  1  Esp. 
229.     See  also  Stanley  v.  White,  14  East,  332. 

*  Doe  V.  Biggs,  2  taunt.  109  ;  Thomas  v.  Thomas,  2  Campb.  647  ;  Doe  v.  Forster, 
13  East,  405  ;  Oakapple  v.  Coitus,  4  T.  R.  361 ;  Doe  v.  Woombwell,  2  Campb.  559. 

6  Sherman  r.  Sherman,  2  Vern.  276.  Hutchins,  Ld.  Com.,  mentioned  "a  .second 
or  third  post,"  as  the  ultimate  period  of  objection.  But  Lord  Hardwicke  said,  that  if 
the  person  to  whom  it  was  sent  kept  the  account  "  for  any  length  of  time,  without 
making  any  objection,"  it  became  a  stated  account.  Willis  v.  Jernegan,  2  Atk.  252. 
See  also  Freelaiid  v.  Heion,  7  Cranch,  147,  151 ;  Murray  v.  Toland,  3  Johns.  Ch.  575  ; 
Tickel  V.  Short,  2  Ves.  239.  Daily  entries  in  a  book,  constantly  open  to  the  party's 
inspection,  are  admissions  against  hira  of  the  matters  therein  stated.  Alderson  i\  Clay, 
1  Stark.  4  05;  Wjltzie  v.  Adamson,  1  Phil.  Evid.  357.  See  further,  Coe  v.  Hutton,  1 
Serg.  &  R.  398;  McBride  v.  Watts,  1  McCord,  384;  Corps  v.  Robinson,  2  Wash.  C.  C. 
388.  So,  the  members  of  a  company  are  chargeable  with  knowledge  of  the  entries  in 
their  books,  made  by  their  agent  in  the  course  of  his  business,  and  with  their  true 
meaning,  as  understood  by  the  agent.     Allen  v.  Coit,  6  Hill  (N.  Y.),  318. 

e  Key  v.  Shaw,  8  Bing.  320. 

■^  Morris  v.  Burdetl,  1  Campb.  218,  where  a  candidate  made  use  of  the  hustings 
erected  for  ai  oleciion;  Abbot  v.  Inhabitants  of  Hermon,  7  Oreenl.  118,  where  a  school- 
house  was  used  l)y  the  school  district  ;  Hayden  v.  Inhabitants  of  Madison,  Id.  76,  a 
case  of  partial  payment  for  making  a  road. 

the  statements."     This  last  sentence  indi-  always  ruin  his  adversary's  case,  by  draw- 

cates  the  principle  on    which    the  whole  ing  him  into  a  compulsory  altercation  in 

rule  turns.     Drury  i;.  Hervey,   126  Mass.  the  presence  of  chosen  listeners,  who  would 

519.  be   sure   to   misrepresent   what    he    said. 

(c)  The  former  rule  of  evidence,  that  Nothing  could  be  more  unjust  or  unrea- 

one's  silence  shall  be  construed  as  a  virtual  sonable.      Hence,    in   more   recent  cases, 

assent  to  all  that  is  said  in  his  presence,  is  the  rule,  in   some  States,  has  undergone 

susceptible  of  great  abu.se,  and  calls  for  a  very  important  qualifications.     The  mere 

course  of  conduct  which  prudent  and  quiet  silence  of  one,  when  facts  are  asserteil  in 

men  do  not  generally  adopt.     If  tliat  rule  his  presence,  is  no   ground  of  presuming 

be  sound  to  the  full  extent,  as  laid  down  his  acquiescence,  unless  the  conversation 

in  some  of  the  early  cases,  it  would  be  in  were  addressed  to  him  under  such  circnm- 

the  power  of  any  evil-disposed  per.son  to  stances  as  to  call  for  a  reply.     The  person 

VOL.  I. —  18 


274 


LAW    OF    EVIDENCE. 


[part  II. 


§  198.  Acquiescence.  The  possession  of  documents^  also,  or  the 
fact  of  constant  access  to  them,  sometimes  affords  gromid  for 
affecting  parties  with  an  implied  admission  of  the  statements 
contained  in  them.  Thus,  the  rules  of  a  club,  contained  in  a 
book  kept  by  the  proper  officer,  and  accessible  to  the  members ;  ^ 
charges  against  a  club,  entered  by  the  servants  of  the  house,  in 
a  book  kept  for  that  purpose,  open  in  the  club-room  ;2  the  posses- 
sion of  letters, 3  and  the  like,  —  are  circumstances  from  which 

1  Raggett  V.  Musgrave,  2  C.  &  P.  556. 

2  Aldeisou  I'.  Clay,  1  Stark.  405  ;  \\'iltzie  v.  Adamson,  1  Phil.  Evid.  357. 

3  Hewitt  V.  Piggott,  5  C.  &  P.  75  ;  Kex  v.  Watson,  2  Stark.  ]40  ;  Honie  Tooke's 
Case,  25  St.  Tr.  I'iO.  P)ut  the  iiossession  of  unanswered  letters  seems  not  to  be  of 
itself,  evidence  of  acquiescence  in  their  contents  ;  (a)  and,  therefore,  a  notice  to  produce 


must  be  in  a  position  to  require  the  infor- 
mation, and  he  must  ask  it  in  good  faith, 
and  in  a  manner  fairly  entitling  him  to 
expect  it,  in  order  to  justify  any  inference 
from  the  mere  silence  of  the  party  ad- 
dressed. If  the  occasion,  or  the  nature  of 
this  demand,  or  the  manner  of  making  it, 
will  reasonably  justii'y  silence,  in  a  dis- 
creet and  prudent  man,  no  unfavorable 
inference  therefrom  should  on  that  ac- 
count be  made  against  the  party.  And 
whether  the  silence  be  any  ground  of 
presumption  against  the  jiarty  will  al- 
ways be  a  question  of  law,  unless  there  is 
conflict  in  the  proof  of  the  attending  cir- 
cumstances. Mattocks  V.  Lyman,  16  Vt. 
113  ;  Vail  v.  Strong,  10  Id.  457  ;  Gale  v. 
Lincoln,  11  Vt.  152;  imst,  §  199.  Where 
a  person  is  inquired  of  as  to  a  matter  which 
may  affect  his  pecuniary  interests,  he  has 
the  right  to  know  whether  the  party  mak- 
ing the  inquiry  is  entitled  to  make  it  as 
affecting  any  interest  which  he  represents, 
and  for  the  protection  of  which  he  requires 
the  information  sought.  And  unless  he  is 
fairly  informed  upon  tliese  points,  he  is 
not  bound  to  give  information,  and  will 
not  be  affected  in  his  pecuniary  inteiests 
in  consequence  of  refusal.  Hackett  v. 
Callender,  32  Vt.  97.  The  same  rule  ob- 
tains as  to  letters  addressed  to  the  party. 
Com.  V.  Jeffries,  7  Allen,  548  ;  Com.  v. 
Eastman,  1  Cush.  189.  But  if  the  party 
consent  to  give  any  explanation,  it  be- 
comes evidence,  although  drawn  from  him 
by  a  false  suggestion.  Higgins  v.  Dellinger, 
22  Mo.  397.  And  even  a  ]>lea  of  "guilty," 
in  a  criminal  proceeding  against  the  party 
for  assault  and  battery,  will  be  evidence 
against  him  in  a  civil  action  for  the  same. 
Birchard  v.  Booth,  4  Wis.  67.  But,  as  a 
general  rule,  admissions  in  the  pleadings 
in  one  suit  will  not  be  evidence  against 
the  party  in  another  suit,  unless  signed  by 
him  personally,  in  which  case  there  is  no 


reason  why  they  should  not  be  so  regarded, 
to  the  same  extent  as  any  other  admissions. 
Marianski  v.  Cairns,  1  Macq.  Ho.  Lds. 
Cas.  212.  Admissions  in  the  same  action 
for  one  purjiose  niay  be  used  for  another, 
as  where  in  assumpsit  against  two,  ujion  a 
joint  promise,  both  pleaded  non  assurnjmt, 
and  one  infancy.  The  jilaintiff  admitted 
the  infancy  of  one  defendant  upon  the 
record,  and  discontinued  as  to  that  de- 
fendant. Held,  that  he  could  not  recover 
against  the  otlier,  since  his  admission 
showed  conclusively  that  there  was  no 
joint  promise.  Boyle  v.  Webster,  17 
Q.  B.  950.  The  American  practice,  how- 
ever, is  different  upon  this  jioint.  It  is 
here  held  that  the  plaintilf  may  discon- 
tinue as  to  the  infant,  and  proceed  against 
the  other  joint  contractors  to  judgment. 
Hartness  v.  Thompson,  5  Johns.  160 ; 
Tappan  v.  Abbot,  cited  1  Pick.  502  ; 
Woodward  v.  Newhall,  Id.  500  ;  Allen  v. 
Butler,  9  Vt.  122. 

(a)  Com.  V.  Eastman,  1  Cnsh.  (Mass.) 
189  ;  Waring  t>.  United  States  Tel.  Co.,  44 
How.  (N.  Y.)  69;  s.  c.  4  Daly,  233;  Fairlie 
V.  Denton,  3  C.  &  P.  103;  Ivichards  v. 
Frankum,  9  Id.  221.  But  if  the  person 
receiving  a  letter  does  reply  to  it,  and  in 
his  reply  refers  to  the  letter  he  has  re- 
ceived, he  makes  the  original  letter  evi- 
dence as  to  the  facts  referred  to,  so  far  as  is 
necessary  in  order  to  understand  the  reply. 
Trischet  v.  Hamilton  Ins.  Co.,  14  Gray 
(Mass.),  456;  Duttoni'. Woodman,  9  Cush. 
(Mass.)  262  ;  Fearing  r.  Kimball,  4  Allen 
(Mass.),  125  ;  Gaskill  v.  Skene,  14  Q.  B. 
664.  It  has  been  held  in  at  least  one  case 
that  if  the  original  letter  contains  state- 
ments which,  if  untrue,  would  naturally 
be  denied,  the  omission  to  deny  them 
might  be  considered  an  admission.  Fenno 
V.  Weston,  31  Vt.  345.  But  the  better 
rule  certainly  is  that  stated  in  a  case 
in   New    York,    showing   the  distinction 


CHAP.    XI.] 


OF    ADMISSIONS. 


275 


admissions  by  acquiescence  may  l)e  inferred.  Upon  the  same 
ground,  the  shipping  list  at  Lhjyd's,  stating  the  time  of  a  vessel's 
sailing,  is  held  to  ha  prima  facie  evidence  against  an  underwriter, 
as  to  what  it  contains.* 

§  199,  Caution.  But,  in  regard  to  admissions  inferred  from 
acquiescence  in  the  verbal  statements  of  others,  the  maxim,  Qui 
tacet  consentire  videtar,  is  to  be  applied  with  careful  discrimina- 
tion. "Nothing,"  it  is  said,  "can  be  more  dangerous  than  this 
kind  of  evidence.  It  should  always  be  received  with  caution; 
and  never  ought  to  be  received  at  all,  unless  the  evidence  is  of 
direct  declarations  of  that  kind  Avhich  naturally  calls  for  contra- 
diction ;  some  assertion  made  to  the  party  with  respect  to  his  right, 
which,  by  his  silence,  he  acquiesces  in.  "^(a)     A  distinction  has 

such  letters  will  not  entitle  the  adverse  party  to  o;ive  evidence  of  their  entire  contents, 
but  only  of  so  much  as  on  other  grounds  would  be  admissible.  Fairlee  v.  Denton,  3 
C.  &  P.  103.  And  a  letter  found  on  the  prisoner  was  held  to  be  no  evidence  against 
him  of  the  facts  stated  in  it,  in  Rex  v.  Plumer,  Rus.  &  Ry.  C.  C.  264. 

<  Mackintosh  v.  Marshall,  11  M.  &  W.  116. 

1  14  Serg.  &  R.  393,  per  Duncan,  C.  J.  ;  2  C.  &  P.  193,  per  Best,  C.  J.  And  see 
McClenkan  v.  McMillan,  6  Barr,  366,  where  this  maxim  is  expounded  and  ap2)ii«d. 
See  also  Commonwealth  v.  Call,  21  Pick.  515. 


between  the  effect  to  be  given  to  oral  dec- 
larations made  by  one  party  to  another, 
which  are  in  answer  to  or  contradictory  of 
some  statement  made  by  the  other  party, 
and  a  written  statement  in  a  letter  written 
by  such  party  to  another,  for  while  it  may 
well  be  that  under  most  circumstances  a 
man  ought  to  contradict  or  explain  in 
some  measure  what  is  said  to  his  face, 
conveying  the  idea  of  an  obligation  upon 
his  part  to  the  person  addressing  him,  or 
on  whose  behalf  the  statement  is  made; 
yet  a  failure  to  answer  a  letter  is  entirely 
different,  and  there  is  no  rule  of  law  which 
reipiires  a  person  to  enter  into  a  correspon- 
dence with  another  in  reference  to  a  matter 
in  dispute  between  them,  or  which  holds 
that  silence  should  be  regarded  as  an  admis- 
sion against  the  party  to  whom  the  letter  is 
addressed.  Sucli  a  rule  would  enable  one 
party  to  obtain  advantage  over  another 
and  has  no  sanction  in  the  law.  Learned 
V.  Tillotson,  97  N.  Y.  8.  The  same  ques- 
tion was  the  subject  of  consideration  in 
another  decision  in  New  York.  Talcott 
V.  Harris,  93  N.  Y.  567,  .^71.  In  that 
case  the  action  was  against  a  person  who 
had  been  discharged  in  bankruptcy,  and 
it  was  claimed  that  the  discharge  was  in- 
valid on  the  ground  that  there  was  fraud 
in  the  contract  by  the  bankrupt.  An 
order  of  arrest  had  been  issued  upon  affi- 
davits averring  fraud  in  contracting  the 
debt,  and  upon  the  trial  the  plaintiff  in- 


troduced in  evidence,  against  the  objec- 
tion and  exception  of  the  defendant,  the 
papers  upon  which  said  order  was  granted, 
including  the  affidavits.  The  court  held 
that  the  evidence  was  erroneously  re- 
ceived, and  reversed  the  judgment.  It 
was  laid  down  in  the  opinion  that  "  if  the 
affidavits  in  question  were  competent  evi- 
dence, it  must  be  upon  the  ground  that 
they  were  statements  made  by  or  on  be- 
half of  the  plaintiff,  showing  the  fraud  of 
the  defendant,  which  were  uncontradicted 
by  the  defendant,  and  that  he  acquiesced 
in  the  propriety  of  the  order  and  in  the 
truth  of  the  statements.  .  .  .  While  a 
party  may  be  called  upon  in  many  cases 
to  speak  where  a  charge  is  made  against 
him,  and  in  failing  to  do  so  may  be  con- 
sidered as  acquiescing  in  its  correctness, 
his  omission  to  answer  a  written  allega- 
tion, whether  by  affidavits  or  otherwise, 
cannot  be  regarded  as  an  admission  of  the 
correctness  thereof,  and  that  it  is  true  in 
all  respects." 

(a)  Com.  V.  Kenney,  12  Met.  235, 
237  ;  supra,  §  197.  It  was  held  in  New 
York  (Kelly  v.  People,  55  N.  Y.  565) 
that  the  silence  of  a  party  under  arrest, 
when  he  heard  statements  tending  to 
show  his  guilt,  was  evidence  against 
him,  citing  as  authorities,  Com.  v.  C^uffee, 
108  Mass.  285,  and  Com.  v.  Crocker,  Id. 
464,  neither  of  which  cases  supports  the 
principle.     They  were  both  questions   of 


276  LAW    OF    EVIDENCE.  [PART   11. 

accordingly  been  taken  between  declarations  made  by  a  party  in- 
terested and  a  stranger;  and  it  has  been  held,  that,  while  what 
one  party  declares  to  the  other,  without  contradiction,  is  admis- 
sible evidence,  what  is  said  by  a  third  person  may  not  be  so.  (b) 
It  may  be  impertinent,  and  best  rebuked  by  silence ;  but  if  it  re- 
ceives a  reply,  the  reply  is  evidence.  Therefore,  what  the  magis- 
trate, before  whom  the  assault  and  battery  was  investigated,  said 
to  the  parties,  was  held  inadmissible,  in  a  subsequent  civil  action 
for  the  same  assault. ^  If  the  declarations  are  those  of  third  per- 
sons, the  circumstances  must  be  such  as  called  on  the  party  to 
interfere,  or  at  least  such  as  would  not  render  it  impertinent  in 
him  to  do  so.  Therefore,  where,  in  a  real  action  upon  a  view  of 
the  premises  by  a  jury,  one  of  the  chain-bearers  was  the  owner  of 
a  neighboring  close,  respecting  the  bounds  of  which  the  litigating 
parties  had  much  altercation,  their  declarations  in  his  presence 
were  held  not  to  be  admissible  against  him,  in  a  subsequent  action 
respecting  his  own  close,  ^(c)  But  the  silence  of  the  party,  even 
where  the  declarations  are  addressed  to  himself,  is  worth  very 
little  as  evidence,  where  he  has  no  means  of  knowing  the  truth  or 
falsehood  of  the  statement.* 

§  200.  Same  subject.  With  respect  to  all  verbal  admissions,  it 
may  be  observed  that  they  ought  to  be  received  with  great  cautioji. 
The  evidence,  consisting  as  it  does  in  the  mere  repetition  of  oral 
statements,  is  subject  to  much  imperfection  and  mistake;  the 

2  Child  V.  Grace,  2  C.  &  P.  193. 

3  Moore  v.  Smith,  14  StTg.  &  R.  388.  "Where  A  &  B  were  charged  with  a  joint  felony, 
what  A  stated  before  the  examining  magistrate,  respecting  B's  participation  in  the 
crime,  is  not  admissible  evidence  against  B.  Eex  v.  Appleby,  3  Stark.  33.  Nor  is  a 
deposition,  given  in  the  person's  presence  in  a  cause  to  which  he  was  not  a  party, 
admissible  against  him.  Helen  v.  Andrews,  1  M.  &  M.  336.  See  also  Fairlie  v.  Den- 
ton, 3  C.  &  P.  103,  per  Lord  Tenterden  ;  Tait  on  Evidence,  p.  293.  So  in  the  Pioman 
law'  "Confessio  facta  sen  prajsumpta  ex  taciturnitate  in  aliquo  judicio,  non  nocebit  in 
alio."     jMascardus  De  Probat.  vol.  i.  concl.  348,  n.  31. 

*  Hayslep  v.  Gymer,  1  Ad.  &  El.  162,  165,  per  Parke,  J.  See  further  on  the  subject 
of  tacit  "admissions.  State  v.  P^awls,  2  Nott  &  McCord,  331.  Batturs  v.  Sellers,  5 
Harr.  &  i.  117,  119. 

positive  admission  or  confession.     On  the  State  v.  Bartlett,  55  Me.  200.     By  stat- 

contrary,  it  has  been  expressly  held  in  that  ute  in   Massachusetts,  the  adverse  infer- 

State,  as  also  elsewhere,  that  silence  under  ence  from  silence  under  such  circumstances 

such  'circumstances  is  not  evidence  from  is  prohibited.     Stat.  1870,  c.  393.     This, 

which  any  adverse  inference  can  be  drawn,  of  course,  is  a  clear  admission  that  the 

Com.  V.  Walker,  13  Allen   (Mass.),  570;  inference  is  natural.     And  see  pos/,  §  216. 
Bob  V.    State,    32  Ala.   560  ;   Noonan   v.  (h)   Com.  v.  Kenney,  12  Mete.   (Mass.) 

State,  9  Miss.  562.     But  silence  when  he  235  ;  Hildreth  v.  Martin,  3  Allen  (Mass.), 

has  a  proper  opportunity  to  speak  is  evi-  371  ;   Com.  v.  Densmore,  12  Id.  535. 
dence  of  guilt.     Pvex  y.' Bartlett,  7   C.   &  (c)     LaiTy     v.     Sherburne,     2     Allen 

P.    832;  Keg.   v.   Appleby,   3   Stark.  33.  (Mass.),    35;    Hildreth  v.  Martin,    3  Id. 

So  where  the  law  allows  him  to  take  the  371  ;  Fenno  v.  Weston,  31  Vt.  345. 
stand  in  his  own  behalf,  and  he  declines. 


CHAP.    XI.]  OF   ADMISSIONS.  277 

party  himself  either  being  misinformed,  or  not  having  clearly 
expressed  his  own  meaning,  or  the  witness  having  misunderstood 
him.  It  frequently  happens,  also,  that  the  witness,  by  uninten- 
tionally altering  a  few  of  the  expressions  really  used,  gives  an 
effect  to  the  statement  completely  at  variance  with  what  the  party 
actually  did  say.^  But  where  the  admission  is  deliberately  made 
and  precisely  identified,  the  evidence  it  affords  is  often  of  the 
most  satisfactory  nature. ^  (a) 

§  201.  Effect  of  admissions.  We  are  next  to  consider  the  effect 
of  admissions,  when  proved.  And  here  it  is  first  to  be  observed, 
that  the  whole  admission  is  to  he  taken  together ;  for  though  some 
part  of  it  may  contain  matter  favorable  to  the  party,  and  the  ob- 
ject is  only  to  ascertain  that  which  he  has  conceded  against  him- 
self, for  it  is  to  this  only  that  the  reason  for  admitting  his  own 
declarations  applies,  namely,  the  great  probability  that  they  are 
true;  yet,  unless  the  whole  is  received  and   considered,  the  true 

1  Earle  v.  Picken,  5  C.  &  P.  542  n.,  per  Parke,  J.  ;  Rex  v.  Simons,  6  C.  &  P. 
540,  per  Alderson,  B.  ;  Williams  v.  Williams,  1  Hagif.  Consist.  304,  per  Sir  William 
Scott  ;  Hope  v.  Evans,  1  Sm.  &  M.  Cli.  195.  Alciatus  expresses  the  sense  of  the  civil- 
ians to  the  same  etfect,  where,  after  speaking  of  the  weight  of  judicial  admissions, 
"propter  majorem  certitudinem,  quam  in  se  habet,"  he  adds  :  "  Quie  ratio  non  habet 
locum,  ([uando  ista  confessio  probaretur  per  testes  ;  imo  est  minus  certa  ceteris  proba- 
tionibus,"  &c.  Alciat.  de  Prsesump.  Pars  Secund.  Col.  632,  n.  6.  See  supra,  §§  96,  97  ; 
2  Poth.  on  Obi.  by  Evans,  Ap[).  No.  16,  §  13  ;  Malin  v.  Maliu,  1  Wend,  625,  652  ; 
Lench  v.  Lench,  10  Ves.  517,  5i8,  cited  with  approbation  in  6  Johns.  Ch.  412,  and  ia 
Smith  V.  Burnham,  3  Sumn.  438  ;  Stone  v.  Ramsey,  4  iMonroe,  236,  239  ;  Myers  v.  Baker, 
Hardin,  544,  549;  Perry  v.  Gerbeau,  5  Martin,  n.  s.  18,  19  ;  Law  v.  Merrills,  6  Wend. 
268,  277.  It  is  also  well  settled  that  verbal  admissions,  hastily  and  inadvertently  made 
without  investigation,  are  not  binding.  Salem  Bank  v.  Gloucester  Bank,  17  Mass.  27  ; 
Barber  v.  Giiigell,  3  Esp.  60.  See  also  Smith  v.  Burnham,  3  Sumn.  435,  438,  439  ; 
Cleavland  v.  Burton,  11  Vt.  138  ;  Stephens  v.  Vroman,  18  Barb.  250  ;  Priutup  p. 
Mitchell,  17  Ga.  558. 

■■^  Rigg  V.  Curgenven,  2  VVils.  395,  399  ;  Glassford  on  Evid.  326  ;  Commonwealth  v. 
Knapp,  9  Pick.  507,  508,  per  Putnam,  J. 

(«.)    Saveland  v.  Green,   40   Wis.    431  ;  When   we  reflect  upon  the  inacciiracy  of 

Mauro   v.    Piatt,    62    111.    450.      See   also  many  witnesses,  in  their  original  compre- 

post,  §  214.      "  In  a  somewhat  extended  hension  of  a  conversation,  their  extreme 

experience   of  jury  trials,  we   have   been  liability  to   mingle   subsequent  facts   and 

compelled  to  the  conclusion  that  the  most  occurrences  with  the  original  transactions, 

unreliableof  all  evidence  is  that  of  the  oral  and  the  impossibility  of  recollecting  the 

aduiissions   of  the   party,   and    especially  precise   terms   used   by   the   ])artv,    or   of 

where   they  purport  to   have   been  made  translating  them  by  exact  equivalents,  we 

during  the  pendency  of  the  action,  or  after  must  conclude  there  is  no  substantial  reli- 

the  parties  were  in  a  state  of  controversy,  ance  upon  this  class  of  testimony.      The 

It  is  not  uncommon  for  different  witnesses  fact,  too,  that  in  the  final  trial  of  open 

of  the  same  conversation  to  give  precisely  questions   of  fact,   both  sides  are  largely 

opposite    accounts   of  it  •    and    in    some  supported  by  evidence  of  this  character,  in 

instances  it  will  appear,  that  the  witness  the    majority  of  instances,  must  lead  all 

deposes  to  the  statements  of  one  party  as  cautious  triers  of   fact  greatly  to  distrust 

coming  from  the  other,  and  it  is  not  very  its  reliability."      Judge  Redfield's  adden- 

uncommon  to  find  witnesses  of  the  best  dum  to  this  section  in  the  twelfth  edition, 

intentions  repeating  the  declarations  of  the  But  the  value  of  the  confession  is  wholly 

party  in  his  own  favor  as  the  fullest  ad-  a  matter  for  the  jury.     Com.  v,  Galligan, 

missions  of  the  utter  falsity  of  his  claim.  113  Mass.  202. 


278  LAW   OF   EVIDENCE.  [PART   II. 

meaning  and  import  of  the  part,  which  is  good  evidence  against 
him,  cannot  be  ascertained.  But  though  the  whole  of  what  he 
said  at  the  same  time,  and  relating  to  the  same  subject,  must  be 
given  in  evidence,  yet  it  does  not  follow  that  all  the  parts  of  the 
statement  are  to  be  regarded  as  equally  worthy  of  credit ;  but  it 
is  for  the  jury  to  consider,  under  all  the  circumstances,  how  much 
of  the  whole  statement  they  deem  worthy  of  belief,  including  as 
well  the  facts  asserted  by  the  party  in  his  own  favor,  as  those 
making  against  him.  ^  (a) 

§  202.  Admissions  containing  hearsay.  Where  the  admission, 
whether  oral  or  in  writing,  contains  matters  stated  as  mere  hear- 
say, it  has  been  made  a  question  whether  such  matters  of  hearsay 
are  to  be  received  in  evidence.  Mr.  Justice  Chambre,  in  the  case 
of  an  answer  in  chancery,  read  against  the  party  in  a  subsequent 
suit  at  law,  thought  that  portion  of  it  not  admissible;  "for,"  he 
added,  "  it  appears  to  me,  that,  where  one  party  reads  a  part  of  the 

1  Smith  V.  Blandy,  Ry.  &  M.  257,  l)er  Best,  J.;  Cray  v.  Halls,  lb.  cit.  per  Abbott, 
C.  J.  ;  Bermon  v.  Woodbridge,  2  Douff.  788  ;  Kex  v.  Clewes,  4  C  &  P.  221,  per  Little- 
dale,  J.  ;  McCleukau  v.  IMcMillaii,  6  Barr,  366  ;  Mattocks  v.  l,ymaii,  18  Vt.  98  ;  Wil- 
son V.  Calvert,  8  Ala.  757  ;  Yarborough  v.  Moss,  9  Ala.  382.  See  supra,  §  152  ; 
Dorlon  v.  Douglass,  6  Barb.  S.  C.  451.  A  similar  rule  prevails  in  chancery.  Gresley 
on  Evid.  13.  See  also  The  Queen's  Case,  2  Brod.  &  Bing.  298,  per  Abbott,  C.  J.  ; 
Handle  v.  Blackburn,  5  Taunt.  245  ;  Thomson  v.  Austen,  2  D.  &  R.  358;  Fletcher  v. 
Froggatt,  2  C.  &  P.  569  ;  Yates  v.  Carnsevv,  3  C.  &  P.  99,  per  Lord  Tenterden  ;  Cooper 
V.  Smith,  15  East,  103,  107  ;  Whitwell  v.  Wyer,  11  Mass.  6,  10  ;  Garey  v.  Nicholson, 
24  Wend.  350  ;  Kelsey  ■;;.  Bush,  2  Hill  440  ;  infra,  §§  215,  218,  and  cases  there  cited. 
Where  letters  in  correspondence  between  the  plaintiff  and  defendant  were  offered  in  evi- 
dence by  the  former,  it  was  held  that  the  latter  might  read  his  answer  to  the  plaintiff's 
last  letter,  dated  the  day  previous.  Roe  v.  Day,  7  C.  &  P.  705.  And  where  one  party 
produces  the  letter  of  another,  j>urporting  to  be  in  reply  to  a  previous  letter  from  him- 
self, he  is  bound  to  call  for  and  put  in  the  letter  to  which  it  was  an  answer,  as  part  of 
his  own  evidenne.     Watson  v.  Moore,  1  C.  &  Kir.  626. 

(«.)  Endersr.  Sternbergh,  2  Abb.  (N.  Y.)  he  may  insist  upon  having  the  questions 

App.  Dec.  31.     So,  if  one  puts  in  evidence  to  which  he  made  the  replies  jiut  in  evi- 

an  admission  of  the  other  party,  he  ren-  dence.     Pennell  v.   Meyer,  2  M.  &  Kob. 

ders  admissible  all  that  was  said  at  that  98,  by  Tindal,  C.  .1.  ;  s.  c.  8  C.  &  P.  470. 

time  on  the  subject  to  which  the  admission  But  the  rule  in  equity  does  not  extend  to 

relates,  so  far  as  it  is  necessary  in  order  to  putting  in   evidence   njatters  wholly  dis- 

nnderstand  the  admission,  although  it  may  tinct  from  tliose  read  by  the  adversary, 

be  favorable  to  the  party  against  whom  although  found  in  the  same  answer  and 

the    admission   was    offered.       Moore    v.  pleadings  ;  and  the  rule  is  practically  the 

Wright,  90  111.  470.     A  party,  by  reading  same  at  law,  as,  when  the  adversary  reads 

from  an  answer  in  the  case  to  prove  the  one   entry  in  a  book,  it  will  not  justify 

admission  of  having  indorsed  a  promissory  reading  the  entire  book,  unless  iu  some 

note,  renders  all  that  portion  of  the  answer  way  connected  with  the  entry  read.     Ab- 

evidence,  although  embracing  obligations  bott,  C.  J.,  in  Catt  r.  Howard,  3  Stark.  N. 

of  defence.     Gildersleeve   v. '  Mahoney,   5  P.  C.  3.     Nor  can  the  party  read  distinct 

Duer,  383.      And  it  has   been   said   tliat  and  disconnected  jmragraphs  in  a  newspa- 

the    party   against   whom    an   answer   iu  per,    because    one    has   been    read   by   his 

chancery  is  produced  may  claim  to  have  adversary  (Darby  v.  Ouseley,  1  H.  &  N. 

the  whole  bill  as  well  as  the  answer  read  1)  ;  or  a  series  of  copies  of  letters  inserted 

as  part  of  his  adversary's  case,  upon  the  in  a  copy-book,  because  one  has  been  read, 

same    ground,    that,    where     one     proves  Sturge  v.  Buchanan,  2  M.  &  Rob.  90. 
answers  in  conversation  against  a  party. 


CHAP.    XI.]  OF   ADMISSIONS.  279 

answer  of  the  other.party  in  evidence,  he  makes  the  whole  admissi- 
ble only  so  far  as  to  waive  any  objection  to  the  comi)etency  of  the 
testimony  of  the  party  making  the  answer,  and  that  he  does  not 
thereby  admit  as  evidence  all  the  facts,  which  may  happen  to 
have  been  stated  by  way  of  hearsay  only,  in  the  course  of  the  an- 
swer to  a  bill  tiled  for  a  discovery.  "*  (a)  But  whore  the  answer 
is  offered  as  the  admission  of  the  party  against  whom  it  is  read, 
it  seems  reasonable  that  the  whole  admission  should  be  read  to 
the  jury,  for  the  purpose  of  showing  uiider  what  impressions  that 
admission  was  made,  though  some  parts  of  it  be  only  stated  from 
hearsay  and  belief.  And  what  may  or  may  not  be  read,  as  the 
context  of  the  admission,  depends  not  upon  the  grammatical  struc- 
ture, but  upon  the  sense  and  connection  in  fact.  But  whether  the 
party,  against  whom  the  answer  is  read,  is  entitled  to  have  such 
parts  of  it  as  are  not  expressly  sworn  to  left  to  the  jury  as  evi- 
dence, however  slight,  of  any  fact,  does  not  yet  appear  to  have 
been  expressly  decided.^ 

§  203.  Parol  admissions  in  pais,  when  competent.  It  is  further 
to  be  observed  on  this  head,  that  the  parol  admission  of  a  party, 
made  en  pais,  is  competent  evidence  only  of  those  facts  which  may 
lawfully  be  established  by  parol  evidence ;  it  cannot  be  received 
either  to  contradict  documentary  proof,  or  to  supply  the  place  of 
existing  evidence  by  matter  of  record.  Thus,  a  written  receipt 
of  money  from  one  as  the  agent  of  a  corporation,  or  even  an 
express  admission  of  indebtment  to  the  corporation  itself,  is  not 
competent  proof  of  the  legal  authority  and  capacity  of  the  corpo- 
ration to  act  as  such.^  Nor  is  a  parol  admission  of  having  been 
discharged  under  an  insolvent  act  sufficient  proof  of  that  fact, 
without  the  production  of  the  record.^  The  reasons  on  which 
this  rule  is  founded  having  been  already  stated,  it  is  unnecessary 
to  consider  them  further  in  this  place.  ^    The  rule,  however,  does 

*  Roe  V.  Ferrars,  2  B.  &  P.  i548. 

5  2  Bos.  &  Pill.  548,  n.  ;  Gresley  on  Evid.  13. 

1  Wellaiid  Canal  Co.  v.  Hathaway,  8  Wend.  480  ;  National  Bank  of  St.  Charles  u. 
De  Beniales,  1  C.  &  P.  569  ;  Jennor  r.  Joliffe,  6  Jolins.  9. 

2  Seott  V.  C;iare,  3  Campb.  236  ;  Summarsett  v.  Adamsou,  1  Bing.  73,  per  Parke,  J. 

*  See  supra,  §§  96,  97. 

(a)  It  is  held  in  Wisconsin  (Shaddock  what  is  stated  as  Iwarsay,  as  in  the  case  of 

V.  Clifton,   22  Wis.  115.     Cf.  Chaj)man  v.  an  answer  in  chancery,  cited  above,  and 

Chicago  &c.  E.  R.  Co.,  26  Wis.  295),  that  it  allows  the  admission  of  the  former  while 

if  an  admission  contains  matter  which  is  it  says  the  latter  wonld  be  inadmissible, 

stated  as  a.  fact,  such  statement  of  the  fact  In  the  case  of  Stc])hens  i;.  Vroman,  16  N. 

is  evidence  of  the  fact  against  the  person  Y.    301,    such    eviileuce   as  was   given  in 

who  makes  the  statement,  although  it  is  Shaildock  v.   Clifton  was  held  inadmissi- 

evident  that  the  statement  is  made  upon  bl(>,  on  the  grounds  given  by  Mr.  Justice 

information.     The  Court  draws  a  distinc-  Chaoibre  above, 
tion  between  what  is  stated  as  a  fact  and 


280  LAW   OP   EVIDENCE.  [PART  II. 

not  go  to  the  utter  exclusion  of  parol  admissions  of  this  nature, 
but  only  to  their  effect ;  for  in  general,  as  was  observed  by  Mr. 
Justice  Parke,*  what  a  party  says  is  evidence  against  himself, 
whether  it  relate  to  the  contents  of  a  written  instrument,  or  any- 
thing else.  Therefore,  in  replevin  of  goods  distrained,  the  ad- 
missions of  the  plaintiff  have  been  received,^to  show  the  terms 
upon  which  he  held  the  premises,  though  he  held  under  an  agree- 
ment in  writing,  which  was  not  produced.^  Nor  does  the  rule 
affect  the  admissibility  of  such  evidence  as  secondary  proof,  after 
showing  the  loss  of  the  instrument  in  question. 

§  204.  How  far  conclusive.  With  regard,  then,  to  the  conclu- 
siveness of  admissions,  it  is  first  to  be  considered,  that  the  genius 
and  policy  of  the  law  favor  the  investigation  of  truth  by  all  ex- 
pedient and  convenient  methods;  and  that  the  doctrine  of  es- 
toppels, by  which  further  investiagtion  is  precluded,  being  an 
exception  to  the  general  rule,  founded  on  convenience,  and  for 
the  prevention  of  fraud,  is  not  to  be  extended  beyond  the  reasons 
on  which  it  is  founded.  ^  It  is  also  to  be  observed  that  estoppels 
bind  only  parties  and  privies,  and  not  strangers.  Hence  it  fol- 
lows, that  though  a  stranger  may  often  show  matters  in  evidence, 
which  parties  or  privies  might  have  specially  pleaded  by  way  of 
estoppel,  yet,  in  his  case,  it  is  only  matter  of  evidence  to  be  con- 
sidered by  the  jury.^     It  is,  however,  in  such  cases,  material  to 

*  In  Earle  v.  Pick  en,  5  C.  &  P.  542  ;  Newhall  v.  Holt,  6  M.  &  W.  662;  Slatterie  v. 
Pooley,  6  M.  &  W.  664  ;  Piitcliard  v.  Bagsbawe,  11  Common  Bench,  459. 
6  Howard  v.  Smith,  3  Scott,  N.  R.  574. 

1  See  sui)ra,  §§  22-26. 

2  This  subject  was  very  clearly  illustrated  by  Mr.  Ju.stice  Bayley,  in  delivering 
the  judgment  of  the  court,  in  Heane  v.  Kogers,  9  B.  &  C.  577,  586.  It  was  an  action 
of  trover,  brought  by  a  person  against  whom  a  commission  of  bankruptcy  had  issued, 
against  his  assignees,  to  recover  the  value  of  goods,  which,  as  assignees,  they  had  sold  ; 
and  it  appeared  that  he  had  assisted  the  assignees,  by  giving  directions  as  to  the  sale 
of  the  goods  ;  and  that,  after  the  issuing  of  the  commission,  he  gave  notice  to  the  les- 
sors of  a  farm  which  he  held  that  he  had  become  bankrupt,  and  was  willing  to  give  up 
the  lease,  which  the  lessors  thereujion  accepted,  and  took  possession  of  the  premises. 
And  the  question  was,  whether  he  was  precluded,  by  this  surrender,  from  disputing 
the  commission  in  the  present  suit.  On  this  point  the  language  of  the  learned  judge 
was  as  follows  :  "Tliere  is  no  doubt  but  that  the  express  admissions  of  a  party  to  the 
suit,  or  admissions  implied  from  his  conduct,  are  evidence,  and  strong  evidence,  against 
him  ;  but  we  think  that  he  is  at  liberty  to  prove  that  such  admissions  weie  mistaken, 
or  were  untrue,  and  is  not  estopped  or  concluded  by  them,  unless  another  person  has 
been  induced  by  them  to  alter  his  condition  ;  in  such  a  case,  the  party  is  estopped  from 
disputing  their  truth  with  respect  to  that  person  (and  those  claiming  under  him),  and 
that  transaction  ;  but  as  to  third  persons,  he  is  not  bound.  It  is  a  well-established 
rule  of  law,  that  estop])els  bind  parties  and  jirivies,  not  strangers.  (Co.  Lit,  352  a; 
Com.  Dig.  Estoppel,  C.)  The  offer  of  surrender  made  in  this  case  was  to  a  stranger  to 
this  suit ;  and  though  the  bankrupt  may  have  been  bound  by  his  representation  that 
he  was  a  bankrupt,  and  his  acting  as  such,  as  between  him  and  that  stranger,  to  whom 
that  representation  was  made,  and  who  acted  upon  it,  he  is  not  bound  as  between  him 
and  the  defendant,  who  did  not  act  on  the  faith  of  that  representation  at  all.  The 
bankrupt  would,  probably,  not  have  been  permitted,  as  against  his  landlords,  —  whom 


CHAP.    XI.]  OP    ADMISSIONS.  281 

consider,  whether  the  admission  is  made  independently,  and  be- 
cause it  is  true,  or  is  merely  conventional,  entered  into  between 
the  parties  from  other  causes  than  a  conviction  of  its  truth  and 
only  as  a  convenient  assumption  for  the  particular  pur{)()se  in 
hand.  For  in  the  latter  case,  it  may  be  doubtful  whether  a 
strano-cr  can  give  it  in  evidence  at  all.^  Verbal  admissions,  as 
such,  do  not  seem  capable,  in  general,  of  being  pleaded  as  estop- 
pels, even  between  parties  or  privies;  but  if,  being  unexplained 
or  avoided  in  evidence,  the  jury  should  wholly  disregard  them, 
the  remedy  would  be  by  setting  aside  the  verdict.  And  when 
they  are  hold  conclusive,  they  are  rendered  effectually  so  by  not 
permitting  the  party  to  give  any  evidence  against  them.  Parol 
or  verbal  admissions,  which  have  been  held  conclusive  against 
the  party,  seem  for  the  most  part  to  be  those  on  the  faith  of  which 
a  court  of  justice  has  been  led  to  adopt  a  particular  course  of  ]n'o- 
ceeding,  or  on  which  another  person  has  been  induced  to  alter  his 
condition. 4  (a)     To  these  may  be  added  a  few  cases  of  fraud  and 

he  had  induced  to  accept  the  lease,  without  a  formal  sunender  in  writing,  and  to  take 
Xjossession,  upon  the  supposition  that  he  was  a  bankrupt,  and  entitled  under  6  Geo.  IV. 
c.  16,  §  75,  to  give  it  up,  —  to  say  afterwards  that  he  was  not  a  bankrupt,  and  bring 
an  action  of  trover  for  the  lease,  or  an  ejectment  for  the  estate.  To  that  extent  he 
would  have  been  bound,  probably  no  further,  and  certainly  not  as  to  any  other  persons 
than  those  landlords.  This  api)ears  to  us  to  be  the  rule  of  law,  and  we  are  of  opinion 
tliat  the  bankrupt  was  not  by  law,  by  his  notice  and  otfer  to  surrender,  estopped  ;  and 
indeed  it  would  be  a  great  hardsliii)  if  he  were  precluded  by  such  an  act.  It  is  ad- 
mitted, that  his  surrender  to  his  commissioners  is  no  estoppel,  because  it  would  be  very 
perilous  to  a  bankrupt  to  dispute  it,  and  try  its  validity  by  refusing  to  do  so.  (See 
Flower  V.  Herbert,  2  V^es.  323. )  A  similar  observation,  though  not  to  the  same  extent, 
applies  to  this  act ;  for  whilst  his  commission  disables  him  from  carrying  on  his  busi- 
ness, and  deprives  him,  for  the  present,  of  the  means  of  occupying  his  farm  with  ad- 
vantage, it  would  be  a  great  loss  to  the  bankrupt  to  continue  to  do  so  ;  paying  a  rent 
and  remaining  liable  to  the  covenants  of  the  lease,  and  deriving  no  adequate  benefit ; 
and  it  cannot  be  expected  that  he  should  incur  such  a  loss,  in  order  to  be  enabled  to 
dispute  his  commission  with  effect.  It  is  reasonalile  that  he  should  do  the  best  for 
himself  in  tlie  unfortunate  situation  in  which  he  is  placed.  It  is  not  necessary  to  refer 
jiarticularly  to  the  cases  in  which  a  bankrupt  has  been  precluded  from  disputing  his 
commission,  and  which  were  cited  in  argument.  The  earlier  cases  fall  witliin  tlie  princi- 
ple above  laid  down.  In  Clarke  v.  Clarke,  6  Esp.  61,  the  bankrupt  was  not  permitted 
to  call  that  sale  a  conversion,  which  he  himself  had  procured  and  sanctioned  ;  in  Like 
V.  Howe,  6  Esp.  20,  he  was  precludeil  from  contesting  the  title  of  persons  to  be  assign- 
ees, whom  he  %  his  conduct  had  procured  to  become  so  ;  and  the  last  case  on  this  sub- 
ject, Watson  V.  Wace,  5  B.  &  C.  153,  is  distinguishable  from  the  present,  because 
Wace,  one  of  the  defendants,  was  the  person  from  whose  suit  the  plaintiff  had  been  dis- 
charged,  and  therefore,  perhaps,  he  might  be  estopped  with  respect  to  tliat  person  by 
his  conduct  towards  him.  See  also  Welland  Canal  Co.  v.  Hathaway,  8  Wend.  483  ; 
Jennings  v.  Whittaker,  4  Monroe,  50;  Grant  v.  Jackson,  Peake's  Cas.  203  ;  Ashmore  v. 
Hardy,  7  C.  &  F.  501  ;  Carter  v.  Bennett,  4  Fla.  343. 

3  Phil.  &  Am.  on  Evid.  388  ;  1  Phil.  Evid.  368.  In  Slaney  v.  Wade,  1  Myl.  &  Or. 
338,  and  Fort  v.  Clarke,  1  Russ.  601.  604,  the  recitals  in  certain  deeds  were  held  inad- 
missible, in  favor  of  strangers,  as  evidence  of  pedigree.  But  it  is  to  be  noted  that 
the  parties  to  those  deeds  were  strangers  to  the  persons  whose  pedigree  they  undertook 
to  recite. 

*  Phil.  &  Am.  on  Evid.  378 ;  1  Phil.  Evid.  360.     The  general  doctrine  of  estoppels 

(a)  Such  estoppels  have  been  thus  de-  such  an  estoppel,  a  party  must  have  de- 
fined by  Judge  Curtis.     "To  constitute    signedly  made  an  admission  inconsistent 


282  LAW   OF   EVIDENCE.  [PART   IT. 

crime,  and  some  admissions  on  oath,  which  will  be  considered 
hereafter,  where  the  party  is  estopped  on  other  grounds. 

§  205.  Judicial  admissions.  Judicial  admissions,  or  those  made 
in  court  by  the  party's  attorney,  generally  appear  either  of  record, 
as  in  pleadin/j,  or  in  the  solemn  admission  of  the  attorney,  made 
for  the  pur})Ose  of  being  used  as  a  substitute  for  the  regular  legal 
evidence  of  the  fact  at  the  trial,  or  in  a  case  stated  for  the  opinion 
of  the  court.  Both  these  have  been  already  considered  in  the 
preceding  pages.  ^  There  is  still  another  class  of  judicial  admis- 
sions, made  by  the  payment  of  money  into  court,  upon  a  rule 
granted  for  that  purpose.  Here,  it  is  obvious,  the  defendant  con- 
clusively admits  that  he  owes  the  amount  thus  tendered  in  pay- 
ment ;^  that  it  is  due  for  the  cause  mentioned  in  the  declaration;^ 
that  the  plaintiff  is  entitled  to  claim  it  in  the  character  in  which 
he  sues;"*  that  the  court  has  jurisdiction  of  the  matter;^  that  the 
contract  described  is  rightly  set  forth,  and  was  duly  executed;^ 
that  it  has  been  broken  in  the  manner  and  to  the  extent  declared ;  ^ 
and  if  it  was  a  case  of  goods  sold  by  sample,  that  they  agreed  with 
the  sample.^  In  other  words,  the  payment  of  money  into  court 
admits  conclusively  every  fact  which  the  plaintiff  would  be  obliged 
to  prove  in  order  to  recover  that  money.  ^  (a)     But  it  admits  noth- 

is  thus  stated  by  Lord  Denman  :  "  Where  one  by  his  words  or  conduct  wilfully  causes 
another  to  believe  the  existence  of  a  certain  state  of  things,  and  induces  him  to  act  on 
that  belief,  so  as  to  alter  liis  own  previous  position,  the  former  is  concluded  from  aver- 
ring against  the  latter  a  different  state  of  things  as  existing  at  the  same  time."  Pickard 
V.  Sears,  6  Ad.  &  El.  469,  474.  The  whole  doctrine  is  ably  discussed  by  Mr.  Smith, 
and  by  Messrs.  Hare  and  Wallace  in  their  notes  to  the  case  of  Trevivau  v.  Lawrence, 
See  2  Smith's  Leading  Cases,  pp.  430-479  (Am.  ed.). 

1  See  siqyra,  §§  22-2t),  186. 

'^  Blackburn  v.  Scholes,  2  Campb.  341  ;  Kucker  v.  Palsgrave,  1  Campb,  558  ;  s.  c. 
1  Taunt.  419  ;  Boyden  v.  Moore,  5  Mass.  365,  369. 

3  Seaton  v.  Benedict,  5  Bing.  28,  32  ;  Bennett  v.  Francis,  2  B.  &  P.  550  ;  Jones  v. 
Hoar,  5  Pick.  285  ;  Huntington  v.  American  Bank,  6  Pick.  340. 

*  Lipscombe  v.  Holmes,  2  Campb.  441. 

5  Miller  z).  Williams,  5  Esd.  19,  21. 

6  Gutteridge  v.  Smith,  2  H.  Bl.  374  ;  Israel  v.  Benjamin,  3  Campb.  40  ;  Middleton 
V.  Brewer,  Peake's  Cas,  15  ;  Kandall  v.  Lynch,  2  Campb.  352,  357  ;  Cox  v.  Brain,  3 
Taunt.  95. 

■^  Dyer  v.  Ashton,  1  B.  &  C.  3. 

^  Leggett  V.  Cooper,  2  Stark.  103. 

9  Dyer  v.  Ashton,  1  B.  &  C.  3;  Stapleton  v.  Nowell,  6  M.  &  W.  9  ,•  Archer  v.  Eng- 

with  the  defence  or  claim  which  he  pro-  (n)  Bacon  v.  Charlton,  7  Cush.  581, 
poses  to  set  up,  and  another  party  have  583.  And  where  the  declaration  contains 
with  his  knowledge  and  consent  so  acted  more  than  one  count,  and  a  part  only  of 
on  that  admission  that  he  will  be  injured  the  sum  demanded  is  paid  into  court,  with- 
by  allowing  the  admission  to  be  dis-  out  specification  to  which  of  the  counts  it 
proved."'  Hawes  v.  Marchant,  1  Curtis,  is  to  be  applied,  such  |)ayment  is  an  ad- 
C.  C.  136,  144.  Cf.  Zuchtmann  v.  Roberts,  mission  only  that  the  defendant  owes  the 
109  Mass.  54.  As  to  the  effect  of  pleadings  plaintiff  the  sum  so  paid  on  some  one  or 
when  offerred  in  subsequent  suits  as  ad-  several  of  the  counts,  but  it  is  not  an  ad- 
missions, see  ante,  §  171,  n.  mission  of  any  indebtedness  under  any  one 


CHAP.    XI.]  OF    ADMISSIONS.  283 

iiiir  bevoiid  that.  If,  therefore,  the  contract  is  illegal,  or  invalid, 
the  payment  of  money  into  court  gives  it  no  validity;  and  if  the 
payment  is  general,  and  there  are  several  counts,  or  contracts, 
some  of  which  are  legal  and  others  not,  the  court  will  apply  it  to 
the  former.^''  So,  if  there  are  two  inconsistent  counts,  on  the 
latter  of  which  the  money  is  paid  into  court,  which  is  taken  out 
l)y  the  plaintiff,  the  defendant  is  not  entitled  to  show  this  to  the 
jury,  in  order  to  negative  any  allegation  in  the  first  count.  ^^  The 
service  of  a  summons  to  show  cause  why  the  party  should  not  be 
permitted  to  pay  a  certain  sum  into  court,  and  a  fortiori^  the  entry 
of  a  rule  or  order  for  that  purpose,  is  also  an  admission  that  so 
much  is  due.^^ 

§  206.  Admissions  by  mistake.  It  is  only  necessary  here  to  add, 
that  where  judicial  admissions  have  been  made  improviclently,  and 
hy  mistake,  the  court  will,  in  its  discretion,  relieve  the  party  from 
the  consequences  of  his  error,  by  ordering  a  repleader,  or  by  dis- 
charging the  case  stated,  or  the  rule,  or  agreement,  if  made  in 
court.  1  Agreements  made  out  of  court,  between  attorneys,  con- 
cerning tlie  course  of  proceedings  in  court,  are  equally  under  its 
control,  in  effect,  by  means  of  its  coercive  power  over  the  attor- 
ney in  all  matters  relating  to  professional  character  and  conduct. 
But,  in  all  these  admissions,  unless  a  clear  case  of  mistake  is 
made  out,  entitling  the  party  to  relief,  he  is  held  to  the  admis- 
sion ;  which  the  court  will  proceed  to  act  upon,  not  as  truth  in 
the  abstract,  but  as  ^formula  for  the  solution  of  the  particular 
problem  before  it,  namely,  the  case  in  judgment,  without  injury 
to  the  general  administration  of  justice. ^ 

lish,  2  Scott  N.  s.  156  ;  Archer  v.  Walker,  9  Dovvl.  21.  Ami  see  Story  v.  Fiuuis,  3 
Eng.  L.  &  Eq.  548,  6  E.xch.  123  ;  Schreger  v.  Garden,  16  Jur.  568. 

w  Kibbans  v.  Crickett,  1  B.  &  P.  264  ;   Hitchcock  v.  Tyson,  2  Esp.  481,  n. 

11  Gould  V.  Oliver,  2  M.  &  Gr.  208,  233,  234  :  Montgomery  v.  Kichardson,  5  C.  & 
P.  247. 

"  Williamson  v.  Henley,  6  Ring.  299. 

1  "Non  fatetur,  qui  errat,  nisi  jus  ignoravit."  Dig.  lib.  42,  tit.  2,  1.  2.  "Si  vero 
per  errorem  fuerit  facta  ipsa  confessio  (scil.  ab  advocato),  clienti  concessum  est,  errors 
probato,  usque  ad  sententiam  revocare."  Mascard.  De  Probat.  vol.  i.  Qusest.  7,  n.  63  ; 
Id.  n.  19-22  ;  Id.  vol.  i.  Concl.  348,  per  tot.  See  Kohn  v.  Marsh,  3  Rob.  (La.)  48. 
The  principle  on  which  a  party  is  relieved  against  judicial  admissions  made  im])rovi- 
dently  and  by  mistake,  is  equally  applicable  to  admissions  en  pais.  Accordingly,  where 
a  legal  liability  was  thus  admitted,  it  was  held,  that  the  jury  were  at  liberty  to  considsr 
all  the  circumstances,  and  the  mistaken  view  under  which  it  was  made  ;  that  the  party 
might  show  that  the  admission  made  by  him  arose  from  a  mistake  as  to  the  law ;  and 
that  he  was  not  estopped  by  such  admission,  unless  the  other  ])arty  had  been  induced 
by  it  to  alter  his  condition.  Newton  v.  Belcher,  13  Jur.  253 ;  18  Law  J.  Q.  B.  53  ;  12 
Q.  B.  921  ;  Newton  v.  Liddiard,  Id.  925  ;  Solomon  v.  Solomon,  2  Kelly,  18. 

2  See  Gresley  on  Evid.  in  Equity,  pp.  849-358.  The  Roman  law  was  administered 
in  the  same  spirit.      "  Si  is,  cum  quo  Lege  Aquilia  agitur,  confessus  est  servum  occidisse, 

count,  nor  of  a  liability  on  all  of  them.  Kingham  v.  Robins,  5  M.  &  W.  94 ; 
Hubbard   v.   Knous,   7  Cush.    556,   559  ;     Archer  v.  English,  1  M.  &  G.  873. 


284  LAW   OP   EVIDENCE.  [PART   II. 

§  207.  Admissions  acted  upon  conclusive.  Admissions,  whether 
of  law  or  of  fact,  which  have  been  aHed  upon  by  others,  arc  con- 
clusive against  the  party  making-  them,  in  all  cases,  between  him 
and  the  person  whose  conduct  he  has  thus  influenced.  ^  (a)  It  is 
of  no  importance  whether  they  were  made  in  express  language  to 
the  person  himself,  or  implied  from  the  open  and  general  conduct 
of  the  party.  For,  in  the  latter  case,  the  implied  declaration  may 
be  considered  as  addressed  to  every  one  in  particular,  who  may 
have  occasion  to  act  upon  it.  In  such  cases  the  party  is  estopped, 
on  grounds  of  public  policy  and  good  faith,  from  repudiating  his 
own  representations. 2  This  rule  is  familiarly  illustrated  by  the 
case  of  a  man  cohabiting  with  a  woman,  and  treating  her  in  the 
face  of  the  world  as  his  wife,  to  whom  in  fact  he  is  not  married. 
Here,  though  he  thereby  acquires  no  rights  against  others,  yet 
they  may  against  him;  and,  therefore,  if  she  is  supplied  with 
goods  during  such  cohabitation,  and  the  reputed  husband  is  sued 
for  them,  he  will  not  be  permitted  to  disprove  or  deny  the  mar- 
riage. ^  So,  if  the  lands  of  such  woman  are  taken  in  execution 
for  the  reputed  husband's  debt,  as  his  own  freehold  in  her  right, 
he  is  estopped,  by  the  relation  de  facto  of  husband  and  wife,  from 
saying  that  he  held  them  as  her  servant.*  So,  if  a  party  has 
taken  advantage  of,  or  voluntarily  acted  under,  the  bankrupt  or 
insolvent  laws,  he  shall  not  be  permitted,  as  against  persons,  par- 
ties to  the  same  proceedings,  to  deny  their  regularity.^  So,  also, 
where  one  knowingly  permits  his  name  to  be  used  as  one  of  thr 
parties  in  a  trading  firm,  under  such  circumstances  of  publicity  as 

licet  non  occiderit,  si  tamen  occisus  sit  homo,  ex  confesso  tenetur."  Di,:;.  lib.  42,  tit. 
2  1.  4 ;  Id.  1.  6.  See  also.  Van  Leeuwen's  Conira.  b.  5,  ch.  21 ;  Everliardi  Concil.  155, 
n.  3.     "Confessus  pro  judicato  est."     Dig.  vbi  sup.  \.  \. 

1  See  supra,  §  27  ;  Commercial  Bank  of  Natchez  v.  King,  3  Rob.  (La.)  243  ;  Kin- 
ney V.  Farnsworth,  17  Conn.  355  ;  Newton  v.  Belcher,  13  Jur.  253  ;  12  Q.  B.  921  ; 
Newton  V.  Liddiard,  Id.  925. 

2  See  supra,  §§  195,  196  ;  Quick  v.  Staines,  1  B.  &  P.  293  ;  Graves  v.  Key,  3  B.  & 
Ad.  318  ;  Straton  v.  Rastall,  2  T.  K.  366  ;   Wyatt  v.  Lord  Hertford,  3  East,  147. 

3  Watson  V.  Threlkeld,  2  Esp.  637  ;  Robinson  v.  Nahorr,  1  Campb.  245;  Munro  v. 
De  Chemant,  4  Campb.  216  ;  Ryan  v.  Sams,  12  Q.  B.  460  ;  supra,  §  27.  But  where 
such  representation  has  not  been  acted  upon,  namely,  in  other  transactions  of  the  suji- 
posed  husband,  or  wife,  they  are  competent  witnesses  for  each  other.  Batthews  v.  Gal- 
iudo,  4  Bins.  610  ;  Wells  v.  Fletcher,  5  C.  &  P.  12  ;  Tufts  v.  Hayes,  5  N.  H.  452. 

4  DivoU  V.  Leadbetter,  4  Pick.  220. 

5  Like  V.  Howe,  6  Esp.  20  ;  Clarke  v.  Clarke,  Id.  61  ;  Goldie  v.  Gunston,  4  Campb. 
381;  Watson  v.  Wace,  5  B.  &  C.  153,  explained  in  Heane  v.  Rogers,  9  B.  &  C.  587  ; 
Mercer  i;.  Wise,  3  Esp.  219  ;  Harmar  v.  Davis,  7  Taunt.  577  ;  Flower  v.  Herbert, 
2  Ves.  326. 

(a)  But  when  a  party  applies  to  another  cumstances,  and  if  he  does  not,  the  state- 
for  information,  on  which  he  intends  to  ments  made  by  the  other  will  not  be  con- 
act,  and  which  may  affect  the  interests  of  elusive  upon  him.  Hackett  v.  Callender, 
the  other,  he  ought  to  disclose  these  cir-  32  Vt.  99. 


CHAP.    XI. J  OF   ADMISSIONS.  285 

to  satisfy  a  jury  that  a  stranger  knew  it,  and  believed  him  to  be 
a  partner,  he  is  liable  to  such  stranger  in  all  transactions  in 
which  the  latter  engaged,  and  gave  credit  upon  the  faith  of  his 
being  such  partner. ^  On  the  same  principle  it  is,  that,  where 
one  has  assumed  to  act  in  an  official  or  professional  cliaracter, 
it  is  conclusive  evidence  against  him  that  he  possesses  that  char- 
acter, even  to  the  rendering  him  subject  to  the  penalties  attached 
to  it.^''  So,  also,  a  tenant  who  has  paid  rent,  and  acted  as  such, 
is  not  permitted  to  set  up  a  superior  title  of  a  third  person  against 
his  lessor,  in  bar  of  an  ejectment  brought  by  him;  for  he  derived 
the  possession  from  him  as  his  tenant,  and  shall  not  be  received 
to  repudiate  that  relation.  ^^  But  this  rule  does  not  preclude  the 
tenant,  who  did  not  receive  the  possession  from  the  adverse  party, 
but  has  only  attorned  or  paid  rent  to  him,  from  showing  that  this 
was  done  by  mistake.  ^^  This  doctrine  is  also  applied  to  the  rela- 
tion of  bailor  and  bailee,  the  cases  being  in  principle  the  same ;  ^^ 
and  also  to  that  of  principal  and  agent.  ^^  Thus,  where  goods  in 
the  possession  of  a  debtor  were  attached  as  his  goods,  whereas 
they  were  the  goods  of  another  person,  who  received  them  of  the 
sheriff,  in  bailment  for  safe  custody,  as  the  goods  of  the  debtor, 

9  Per  Parke,  J.,  in  Dickinson  v.  Yalpy,  10  B.  &  C.  128,  140,  141  ;  Fox  v.  Clifton, 
6  Bing.  779,  794,  per  Tindal,  C.  J.  See  also  Kell  v.  Nainby,  10  B.  &  C.  20  ;  Guidon 
V.  Kobson,  2  Caiiipb.  302. 

10  See  supra,  §  195,  and  eases  cited  in  note. 

"  Doe  V.  Pegge,  1  T.  R.  759,  n.,  per  Lord  Mansfield  ;  Cooke  r.  Loxley,  5  T.  R.  4  ; 
Hodson  V.  Sharps,  10  East,  350,  352,  353,  per  Lord  Ellenborough;  Phipps  v.  Seultliorpe, 
1  B.  &  Aid.  50,  53  ;  Cornish  v.  Searell,  8  R.  &  C.  471,  per  Bayley,  J.  ;  Doe  v.  Smythe, 
4  M.  &  S.  347  ;  Doe  v.  Austin,  9  Bing.  41  ;  Fleming  v.  Gooding,  10  Bing.  549  ;  jack- 
son  V.  Reynolds,  1  Caines,  444  ;  Jackson  v.  Scissam,  3  Johns.  499,  504°;  Jackson  v. 
Dobbin,  Id.  223;  Jackson  v.  Smith,  7  Cowen,  717  ;  Jackson  v.  Siiear,  7  Wend.  401. 
See  1  Phil,  on  Evid.  107. 

12  Williams  v.  Bartholomew.  1  B.  &  P.  326  ;  Rogers  v.  Pitcher,  6  Taunt.  202,  208. 

13  Gosling  V.  Birnie,  7  Bing.  339  ;  Phillips  v.  Hall,  8  Wend.  610  :  Drown  v.  Smith, 
3  N.  H.  299  ;  Eastman  v.  Tattle,  1  Cowen,  248  ;  McNeil  v.  Philip,  1  McCord,  392; 
Hawes  v.  Watson,  2  B.  &  C.  540  ;  Stonard  v.  Dunkin,  2  Campb.  344  ;  Chapman  v. 
Searle,  3  Pick.  38,  44;  Dixon -u.  Haniond,  2  B.  &  Aid.  310;  Jewett  v.  Torrey,  11 
Mass.  219  ;  Lyman  r.  Lyman,  Id.  317  ;  Story  on  Bailments,  §  102;  Kieran  v.  'San- 
dars,  6  Ad.  &  El.  515.  But  where  the  bailor  was  but  a  trustee,  and  is  no  longer  liable 
over  to  the  cestui  que  f.rust,  a  delivery  to  the  latter  is  a  good  defence  for  the  bailee 
against  the  bailor.  This  principle  is  familiarly  applied  to  the  case  of  goods  attached 
by  the  sheriff,  and  delivered  for  safe  keeping  to  a  y)erson  who  delivers  them  over  to  the 
debtor.  After  the  lien  of  the  sheriff  is  dissolved,  he  can  have  no  action  against  his 
bailee.  Whittier  v.  Smith,  11  Mass.  211  ;  Cooper  v.  Mowry,  16  Mass.  8  ;  Jenney  v. 
Rodman,  Id.  464.  So,  if  the  goods  did  not  belong  to  the  debtor,  and  the  bailee"has 
delivered  them  to  the  true  owner.  Learned  v.  Bryant,  13  Mass.  224  ;  Fisher  v.  Bart- 
left,  8  Greenl.  122.  Ogle  v.  Atkinson,  5  Taunt.  759,  which  seems  to  contradict  the 
text,  has  been  overruled,  as  to  this  point,  by  Gosling  v.  Birnie,  supra.  See  also  Story 
on  Agency,  §  217,  n. 

"  Story  on  Agency,  §  217,  and  cases  there  cited.  The  agent,  however,  is  not  es- 
topped to  set  up  the  jus  terlii  in  any  case  whore  the  title  of  the  principal  was  acquired 
by  fraud  ;  and  the  same  principle  seems  to  apply  to  other  cases  of  bailment.  Hard- 
man  V.  Willcock,  9  Bing.  382,  n. 


286  LAW   OF   EVIDENCE,  [PART   II. 

without  giving  any  notice  of  his  own  title,  the  debtor  then  pos- 
sessing other  goods,  which  might  have  been  attached,  it  was  held, 
that  the  bailee  was  estopped  to  set  up  his  own  title  in  bar  of  an 
action  by  the  sheriff  for  the  goods.  ^^  The  acceptance  of  a  bill  of 
exchange  is  also  deemed  a  conclusive  admission,  against  the  ac- 
ceptor, of  the  genuineness  of  the  signature  of  the  drawer,  though 
not  of  the  indorsers,  and  of  the  authority  of  the  agent,  where  it 
was  drawn  by  procuration,  as  well  as  of  the  legal  capacity  of  the 
preceding  parties  to  make  the  contract.  The  indorsement,  also, 
of  a  bill  of  exchange,  or  promissory  note,  is  a  conclusive  admis- 
sion of  the  genuineness  of  the  preceding  signatures,  as  well  as  of 
the  authority  of  the  agent,  in  cases  of  procuration,  and  of  the  capac- 
ity of  the  parties.  So,  the  assignment  of  a  replevin  bond  by  the 
sheriff  is  an  admission  of  its  due  execution  and  validity  as  a 
bond.  ^^  So,  where  land  has  been  dedicated  to  public  use,  and  en- 
joyed as  such,  and  private  rights  have  been  acquired  with  refer- 
ence to  it,  the  original  owner  is  precluded  from  revoking  it.  ^" 
And  these  admissions  may  be  pleaded  by  way  of  estoppel  enpais.'^^ 
§  208.  Truth  or  falsehood  of  admission  immaterial,  •when.  It 
makes  no  difference  in  the  operation  of  this  rule,  whether  the 
thing  admitted  was  true  or  false:  it  being  the  fact  that  it  has 
been  acted  upon  that  renders  it  conclusive.  Thus,  where  two 
brokers,  instructed  to  effect  insurance,  wrote  in  reply  that  they 
had  got  two  policies  effected,  which  was  false :  in  an  action  of 
trover  against  them  by  the  assured  for  the  two  policies.  Lord 
Mansfield  held  them  estopped  to  deny  the  existence  of  the  poli- 
cies, and  said  he  should  consider  them  as  the  actual  insurers.  ^ 
This  principle  has  also  been  applied  to  the  case  of  a  sheriff,  who 
falsely  returned  that  he  had  taken  bail.^ 

15  Dewey  v.  Field,  4  Met.  381.  See  also  Pitt  v.  Chappelow,  8  M.  &  W.  616  ;  San- 
derson V.  Collman,  4  Scott,  N.  R.  638  ;  Heane  v.  Rogers,  9  B  &  C.  577  ;  Dezell  v. 
Odell,  3  Hill,  215. 

16  Scott  V.  Waitbman,  3  Stark.  168  ;  Barnes  v.  Lucas,  Ry.  &  M.  264  ;  Plumer  v. 
Briscoe,  12  Jur.  351. 

1'  Cincinnati  v.  Wliite,  6  Pet.  439  ;  Hobbs  v.  Lowell,  19  Pick.  405. 

18  Story  on  Bills  of  Exchange,  §§  262,  263  ;  Sanderson  v.  Collman,  4  Scott,  K  R. 
638;  Pitt  V.  Chappelow,  8  M.  &  W.  616  ;  Taylor  v.  Croker,  4  Esp.  187  ;  Drayton  v. 
Dale,  2  B.  &  C.  293  ;  Haley  v.  Lane,  2  Atk.  181  ;  Bass  v.  Clive,  4  M.  &  S.  13  ;  siqjra, 
§§  195-197  ;  Weakly  v.  Bell,  9  Watts,  273. 

1  Harding  v.  Carter,  Park  on  Ins.  p.  4.  See  also  Salem  v.  Williams,  8  Wend.  483  ; 
s.  c.  9  Wend.  147  ;  Chapman  v.  Searle,  3  Pick.  38,  44  ;  Hall  v.  White,  3  C.  &  P. 
136  ;  Den  v.  Oliver,  3  Hawks,  479  ;  Doe  v.  Lambly,  2  Esp.  635;  1  B.  &  A.  650,  per 
Lord  Ellenborongh  ;  Price  v.  Harwood,  3  Campb.  108  ;  Stables  v.  Eley,  1  C.  &  P. 
614  ;  Howard  v.  Tucker,  1  B.  &  Ad.  712.  If  it  is  a  case  of  innocent  mistake,  still,  if 
it  has  been  acted  upon  by  another,  it  is  conclusive  in  his  favor.  As,  where  the  sup- 
posed maker  of  a  forged  note  innocently  paid  it  to  a  bona  fide  holder,  he  shall  be  es- 
topped to  recover  back  the  money.     Salem  Bank  v.  Gloucester  P^ank,  17  Mass.  1,  27. 

'^  Simmons  v.  Bradford,  15  Mass.  82  ;  Eaton  v.  Ogier,  2  Greenl.  46. 


CHAP.    XI.]  OF   ADMISSIONS.  287 

§  209.  Not  acted  upon  not  conclusive.  On  the  other  hand,  verbal 
admissions  which  have  not  been  acted  upon,  and  which  the  party 
may  controvert,  without  any  breach  of  good  faith  or  evasion  of 
public  justice,  though  admissible  in  evidence,  are  not  held  con- 
clusive against  him.  Of  this  sort  is  the  admission  that  his  trade 
was  a  nuisance,  by  one  indicted  for  setting  it  up  in  another  ])lace ;  ^ 
the  admission  by  the  defendant,  in  an  action  for  criminal  conver- 
sation, that  the  female  in  question  was  the  wife  of  the  plaintiff ;  2 
the  omission  by  an  insolvent,  in  his  schedule  of  debts,  of  a  par- 
ticular claim,  which  he  afterwards  sought  to  enforce  by  suit.^  In 
these,  and  the  like  cases,  no  wrong  is  done  to  the  other  party  by 
receiving  any  legal  evidence  showing  that  the  admission  was 
erroneous,  and  leaving  the  whole  evidence,  including  the  admis- 
sion, to  be  weighed  by  the  jury,  (a) 

§  210,  Public  policy.  In  some  other  cases,  connected  with  the 
administration  of  public  justice  and  of  government,  the  admis- 
sion is  held  conclusive,  on  grounds  of  public  policT/.  Thus,  in  an 
action  on  the  statute  against  bribery,  it  was  held  that  a  man  who 
had  given  money  to  another  for  his  vote  should  not  be  admitted 
to  say  that  such  other  person  had  no  right  to  vote.*  So,  one  who 
has  officiously  intermeddled  with  the  goods  of  another,  recently 
deceased,  is,  in  favor  of  creditors,  estopped  to  deny  that  he  is 
executor.^  Thus,  also,  where  a  ship-owner,  whose  ship  had  been 
seized  as  forfeited  for  breach  of  the  revenue  laws,  applied  to  the 
Secretary  of  the  Treasury  for  a  remission  of  forfeiture,  on  the 
ground  that  it  was  incurred  by  the  master  ignorantly,  and  with- 
out fraud,  and,  upon  making  oath  to  the  application,  in  the  usual 
course,  the  ship  was  given  up,  he  was  not  permitted  afterw*ards  to 
gainsay  it,  and  prove  the  misconduct  of  the  master,  in  an  action 
by  the  latter  against  the  owner,  for  his  wages,  on  the  same  voy- 
age, even  by  showing  that  the  fraud  had  subsequently  come  to  his 

^  Rex  V.  Neville,  Peake's  Cas.  91. 

2  Morris  v.  Miller,  4  Burr.  2057,  further  explained  in  2  Wils.  399,  1  Doup;.  174,  and 
Bull.  N.  P.  28. 

3  Nicholls  V.  Downes,  1  Mood.  &  R.  13  ;  Hart  v.  Newman,  3  Oamph.  13. 
*  Combe  v.  Pitt,  3  Burr.  1586,  1590  ;  Ri;Tcr  v.  Curgenven,  2  Wils.  395. 

^  Reade's  Case,  5  Co.  33,  34  ;  Toller's  Law  of  Ex'rs,  37-41.  See  also  Quick  v. 
Staines,  1  B.  &  P.  293.  Where  the  owners  of  a  stage  coach  took  up  more  passengers 
than  were  allowed  by  statute,  and  an  injury  was  laid  to  have  arisen  from  overloading, 
the  excess  beyond  the  statute  number  was  held  by  l^onl  Elleuhorough  to  be  conclusive 
evidence  that  the  accident  arose  from  that  cause.     Israel  v.  Clark,  4  Esp.  259. 

(a)  But  the  effect  of  an  admission  can-  State,  13  Tex.  168;    Hunt   v.    Roylance, 

not  be  rebutted  by  evidence  that  dilFerent  11   Cush.  (Mass. )   117.     And  see  post,   § 

statements    were    made    at    other    times.  269. 
Clark  V.  Huffaker,  26  Mo.  264  ;  Jones  v. 


288  LAW   OP   EVIDENCE.  [PART   II. 

knowledge.^  The  mere  fact  that  an  admission  was  made  under 
oath  does  not  seem  alone  to  render  it  conchisive  against  the  party, 
but  it  adds  vastly  to  the  weight  of  the  testimony,  throwing  upon 
him  the  burden  of  showing  that  it  was  a  case  of  clear  and  innocent 
mistake.  Thus,  in  a  prosecution  under  the  game  laws,  proof  of 
the  defendant's  oath,  taken  under  the  income  act,  that  the  yearly 
value  of  his  estates  was  less  than  XlOO,  was  held  not  quite  con- 
clusive against  him,  though  very  strong  evidence  of  the  fact.* 
And  even  the  defendant's  belief  of  a  fact,  sworn  to  in  an  answer 
in  chancery,  is  admissible  at  law,  as  evidence  against  him  of  the 
fact,  though  not  conclusive.^ 

§  211.  Admissions  in  deeds.  Admissions  in  deeds  have  already 
been  considered,  in  regard  to  parties  and  privies,^  between  whom 
they  are  generally  conlusive ;  (a)  and  when  not  technically  so,  they 
are  entitled  to  great  weight  from  the  solemnity  of  their  nature. 
But  when  offered  in  evidence  by  a  stranger,  or,  as  it  seems,  even 
by  a  party  against  a  stranger,  the  adverse  party  is  not  estopped, 
but  may  repel  their  effect  in  the  same  manner  as  though  they 
were  only  parol  admissions.  ^  (6) 

3  Freeman  v.  Walker,  6  Greenl.  68.  But  a  sworn  entry  at  the  custom-house  of 
certain  premises,  as  being  rented  by  A,  R,  and  C,  as  partners,  for  the  sale  of  beer, 
though  conclusive  in  favor  of  the  crown,  is  not  conclusive  evidence  of  the  partnership, 
in  a  civil  suit,  in  favor  of  a  stranger.  Ellis  v.  Watson,  2  Stark.  453.  Tlie  difference 
between  this  case  and  that  in  the' text  may  be,  that  in  the  latter  the  parly  gained  an 
advantage  to  himself,  which  was  not  the  case  in  the  entry  of  jtartnership:  it  being  only 
incidental  to  the  principal  object;  namely,  the  designation  of  a  place  where  an  excisa- 
ble  commodity  was  sold. 

*  Rex  V.  (3larke,  8  T.  R.  220.  It  is  observable  that  the  matter  sworn  to  was  rather 
a  matter  of  judgment  than  of  certainty  in  fact.  But  in  Thornes  v.  White,  1  Tyrwh. 
&  Grang.  HO,  the  party  had  sworn  positively  to  matter  of  fact  in  his  own  knowledge  ; 
but  it  was  held  not  conclusive  in  law  against  him,  though  deserving  of  much  weight 
with  the  jury.     And  see  Carter  v.  Bennett,  4  Fla.  343. 

5  Doe  V.  Steel,  3  Campb.  115.  Answers  in  chancery  are  always  admissible  at  law 
against  the  party,  but  do  not  seem  to  be  held  strictly  conclusive,  inerely  because  they 
are  sworn  to.  See  Bull.  N.  P.  236,  237  ;  1  Stark.  Evid.  284  ;  Cameron  v.  Lightfont, 
2  W.  Bl.  1190  ;  Grant  v.  Jackson,  Peake's  Cas.  203  ;  Studdy  v.  Sander.s,  2  D.  &  K. 
347  ;  De  Whelpdale  v.  Milburn,  5  Price,  485. 

1  Siqn-a,  §§  22-24,  189,  204.  But  if  the  deed  has  not  been  delivered,  that  party  is 
not  conclusively  bound.     Piobinson  v.  Cushman,  2  Denio,  149. 

2  Bowman  v.  Rostron,  2  Ad.  &  El.  295,  n.  ;  Woodward  v.  Larking,  3  Esp.  286  ; 
Mayor  of  Carlisle  v.  Blamire,  8  East,  487,  492,  493. 

{a)  It  is  scarcely  necessary  to  say  that  ant,  by  the  lease,  so  that  the  tenant  can- 
all  estoppels  in  deed  must  be  mutual  ;  not  take  advantage  of  any  defect  in  the 
i.  c,  must  bind  both  parties.  Hence,  re-  landlord's  title,  which  ajipears  in  the 
citals  in  a  deed  may  bind  a  party  in  one  course  of  the  trial  in  a  suit  for  use  ami 
relation  or  capacity,  and  not  in  another,  occupation.  Dolby  v.  lies,  11  Ad.  &  El. 
2  Smith's  Lead.  Cas.  442.     And  writers  of  335. 

authoritv  affirm  that    "it  is  now  clearly  {h)  When  a  deed  has  not  been  dehv- 

settled,  that  a  party  is  not  estopped  from  ered,  and  therefore  is  not  in   effect  as  a 

avoiding  his  deed  by  ]>roving  that  it  was  deed,  the  recitals  in  it  are  not  conclusive 

entered  into  from  a  fraudulent,  illegal,  or  upon  the  party  making  tliem,  but  may  be 

immoral  purpose."      Ibid.      There   is   an  ex]ilained  or  rebutted.     Bulley  v.  Bulley, 

estoppel  raised  between  landlord  and  ten-  L.  R.  9  Ch.  739. 


CHAP.    XI.]  OF    ADMISSIONS.  289 

§  212.  Receipts,  accounts,  &c.  Other  admissions,  thou<^li  in 
writing,  not  having  been  acted  upon  by  another  to  his  prejudice, 
nor  falling  within  the  reasons  before  mentioned  for  esto[)ping  the 
party  to  gainsay  them,  are  not  conclusive  against  him,  but  are 
left  at  large,  to  be  weighed  with  other  evidence  by  the  jury.  Of 
this  sort  are  receipts,  or  mere  acknowledgments,  given  for  goods 
or  money,  whether  on  separate  papers,  or  indorsed  on  deeds  or 
on  negotiable  securities ;  ^  {a)  adjustment  of  a  loss,  on  a  policy  of 
insurance,  made  without  full  knowledge  of  all  the  circinnstances, 
or  under  a  mistake  of  fact,  or  under  any  other  invalidating  cir- 
cumstances ;2  and  accounts  rendered,  such  as  an  attorney's  bill,^ 
and  the  like.  So,  of  a  bill  in  chancery,  which  is  evidence  against 
the  plaintiff  of  the  admissions  it  contains,  though  very  feeble  evi- 
dence, so  far  as  it  maybe  taken  as  the  suggestion  of  counsel.*  (b) 

1  Skaife  v.  Jackson,  3  B.  &  C.  421 ;  Gravos  i'.  Key,  3  B.  &  Ad.  313  ;  Straton  v. 
Rastall,  2  T.  R.  366  ;  Fairmaner  v.  Budd,  7  Bing.  574  ;  Lainpon  v.  Corke,  .5  B.  &  Aid. 
606,  611,  per  Holroyd,  J.  ;  Harden  v.  Gordon,  2  Mason,  541,  561;  Fuller  ■;;.  Critten- 
den, 9  Conn.  401  ;  Ensign  v.  Webster,  1  Johns.  Cas.  145;  Putnam  v.  Lewis,  8  Johns. 
389  ;  Stackpole  v.  Arnold,  11  Mass.  27  ;  Tucker  v.  Maxwell,  Id.  143 ;  Wilkinson  v. 
Seott,  17  Mass.  249. 

2  Reyner  v.  Hall,  4  Taunt.  725  ;  Shepherd  v.  Chewter,  1  Campb.  274,  276,  note  by 
the  reporter ;  Adams  v.  Sanders,  1  M.  &  M.  373  ;  Christian  v.  Coombe,  2  Esp.  489  ; . 
Bilbie  V.  Lumley,  2  East,  469  ;  Elting  v.  Scott,  2  Johns.  157. 

3  Lovebridge  v.  Botham,  1  B.  &  P.  49. 

*  Bull.  N.  P.  235  ;  Doe  v.  Sybourn,  7  T.  R.  3.     See  vol.  iii.  §  276. 

(a)  Infra,    §   305.      The  acknowledg-  by  statute  of  limitations,  that  he  had  told 

ment  of  the  receipt  of  the  purchase-money  his  creditor  he  would  pay  him,  is  not  proof 

in  a  deed  of  land  is  no  evidence  of  the  fact  of  a  promise  made  direct  by  debtor  to  cred- 

against  a  stranger.     Lloyd    v.   Lynch,  28  itor.     Baker  v.  Singer  Mfg.  Co.,  122  Pa. 

P^i.  St.  419.     The  receipt  of  the  mortgagee,  St.  363. 

it  has  been  held,  is  not  evidence,  of  a  pay-  (b)  A  bill  in  equity,  signed  and  sworn 
ment  by  the  mortgagor,  at  the  date  of  the  to,  is  competent  evidence  against  the  party 
re(;eipt,  as  against  the  assignee  of  the  signing  it  and  swearing  to  it.  And  a  bill 
mortgage  whose  title  dates  subsequent  to  by  several  co-plaintitfs,  signed  liy  one  of 
the  date  of  the  receipt.  Foster  v.  Beals,  them  by  his  counsel,  is  evidence  against 
21  N.  Y.  Ct.  of  App.  247  (three  judges  that  plaintiff,  if  it  is  proved  that  he  author- 
dissenting).  And  it  has  been  held  in  Penn-  ized  his  counsel  to  sign  it.  Brown  v.  Jew- 
sylvania  that  the  statement  to  a  stranger  ett,  120  Mass.  215. 
by  the  debtor  whose  debt  has  been  barred 


VOL.   I.  — 19 


290  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER   XIL 

OP   CONFESSIONS. 

§  213.  Confessions.  The  only  remaining  topic,  under  the  gen- 
eral head  of  admissions,  is  tliat  of  confessions  of  guilt  in  criminal 
prosecutions,  which  we  now  propose  to  consider.  It  has  already 
been  observed  that  the  rules  of  evidence,  in  regard  to  the  volun- 
tary admissions  of  the  party,  are  the  same  in  criminal  as  in  civil 
cases.  But,  as  this  applies  only  to  admissions  brought  home  to 
the  party,  it  is  obvious  that  the  whole  subject  of  admissions  made 
by  agents  and  third  persons,  together  with  a  portion  of  that  of 
implied  admissions,  can  of  course  have  very  little  direct  appli- 
cation to  confessions  of  crime  or  of  guilty  intention.  In  treating 
this  subject,  however,  we  shall  follow  the  convenient  course  pur- 
sued by  other  writers,  distril)uting  this  branch  of  evidence  into 
two  classes ;  namely,  first,  the  direct  confessions  of  guilt ;  and, 
secondly,  the  indirect  confessions,  or  those  which,  in  civil  cases, 
are  usually  termed  "  implied  admissions. "  (a) 

§  214.  To  be  received  with  caution.  But  here,  also,  as  we  have 
before  remarked  in  regard  to  admissions,  ^  the  evidence  of  verbal 
confessions  of  guilt  is  to  be  received  with  great  caution.  For,  be- 
sides the  danger  of  mistake,  from  the  misapprehension  of  wit- 
messes,  the  misuse  of  words,  the  failure  of  the  party  to  express 
his  own  meaning,  and  the  infirmity  of  memory,  it  should  be  recol- 
lected that  the  mind  of  the  prisoner  himself  is  oppressed  by  the 
calamity  of  his  situation,  and  that  he  is  often  influenced  by  mo- 
tives of  hope  or  fear  to  make  an  untrue  confession.  ^  (J)    The  zeal, 

2  nlw'^k.'  P.C.  b.  2,  e.  46,  §  3,  n.  (2)  ;  McNally's  Evid.  42,  43,  44  ;  Vaughan  v. 
Hann  6  B  Monr.  341.  Of  this  character  was  the  remarkable  case  of  the  two 
Booms'  convicted  in  the  Supreme  Court  of  Vermont,  in  Bennington  County,  in  Sep- 
tember term,  1819,  of  the  murder  of  Russell  Colvin,  May  10,  1812.  It  appeared  that 
Colvin,  who  was  the  brother-in-law  of  the  prisoners,  was  a  person  of  a  weak  and  not 
perfectly  sound  mind  ;  that  he  was  considered  burdensome  to  the  family  of  the  prison- 

{a)  Admissions  of  collateral  facts  which  der  the  statutes  of  that  State,  that  proof 

do  not  involve  criminal  intent,  are  admis-  of  inducement  will  exclude  even  admissions 

siblewitliout  proof  of  their  voluntary  char-  of  collateral   facts.     Marshall  v.  State,  5 

acter.     People   v.    Parton,    49   Cal.    632  ;  Tex.  Ap.  273  ;  Haynie  v.  State,  2  Id.  168; 

State  V.  Knowles,  48   Iowa,  598  ;   supra,  Taylor  v.  State,  3  Id.  387. 
§  170.     In  Texas,  however,  it  is  held,  un-  (b)  Brister  v.  State,  26  Ala.  107. 


CHAP.    XII.]  •  OF    CONFESSIONS.  291 

too,  which  so  generally  prevails,  to  detect  offenders,  especially 
in  cases  of  aggravated  guilt,  and  the  strong  disposition,  in  the 
persons  engaged  in  pursuit  of  evidence,  to  rely  on  slight  grounds 
of  suspicion,  which  are  exaggerated  into  sufficient  proof,  together 
with  the  character  of  the  persons  necessarily  called  as  witnesses, 
in  cases  of  secret  and  atrocious   crime,   all  tend  to  impair  the 

prs,  who  were  obliged  to  support  him ;  that  on  the  day  of  his  disappearance,  being  in  a 
distant  field,  where  the  prisoners  were  at  work,  a  violent  quairel  broke  out  between 
them  ;  and  that  one  of  them  struck  him  a  severe  blow  on  the  back  of  the  head  with  a 
club,  which  felled  him  to  the  ground.  Some  sus[)icions  arose  at  that  time  that  he  was 
murdered  ;  wliicli  were  increased  by  the  linding  of  his  hat  in  the  same  field  a  few 
months  afterwards.  These  suspicions  in  process  of  time  subsided  ;  but  in  1819,  one  of 
the  neiglibors  having  repeatedly  dreamed  of  the  nuirdei',  with  great  minuteness  of  cir- 
cumstance, both  in  regard  to  his  death  and  the  concealment  of  ids  remains,  the  prison- 
ers were  vehemently  accused,  and  generally  believed  guilty  of  the  murder.  Under  strict 
search,  the  pocket-knife  of  Colvin,  and  a  button  of  his  clothes,  were  found  in  an  old 
open  cellar  in  the  same  Held,  and  in  a  hollow  stump,  not  many  rods  from  it,  were  dis- 
covered two  nails  and  a  number  of  bones,  believed  to  be  those  of  a  man.  Upon  this 
evidence,  together  with  their  deliberate  confession  of  the  fact  of  the  murder  and  con- 
cealment of  the  body  in  those  places,  they  were  convicted  and  sentenced  to  die.  On 
the  same  day  they  api)lied  to  the  legislature  for  a  commutation  of  the  sentence  of  death 
to  that  of  perpetual  imprisonment ;  which,  as  to  one  of  them  only,  was  granted.  The 
confession  being  now  withdrawn  and  contradicted,  and  a  reward  offered  for  the  discov- 
ery of  the  missing  man,  he  was  found  in  New  Jersey,  and  returned  home  in  time  to 
prevent  the  execution.  He  had  Hed  for  fear  that  they  would  kill  him.  The  bones 
were  those  of  some  animal.  They  had  been  advised  by  some  misjudging  friends,  that, 
as  they  would  certainly  be  convicted,  upon  the  circumstances  proved,  their  only  chance 
for  life  was  by  commutation  of  punishment,  and  that  this  depended  on  their  making  a 
penitential  confession,  and  thereupon  obtaining  a  recommendation  to  mercy.  This 
case,  of  which  there  is  a  report  in  the  Law  Library  of  Harvard  University,  is  critically 
examined  in  a  learned  and  elaborate  article  in  the  North  American  Review,  vol.  x.  pp. 
418-42!).  For  other  cases  of  false  confessions,  see  Wills  on  Circumstantial  Evidence, 
p.  88  ;  Phil.  &  Am.  on  Evid.  419  ;  1  Phil.  Evid.  397,  n.  ;  Warickshall's  Case,  1  Leach, 
Cr.  Cas.  299,  n.  j\Ir.  Chitty  mentions  the  case  of  an  innocent  person  making  a  false 
constructive  confession,  in  order  to  fix  suspicion  on  himself  alone,  that  his  guilty 
brothers  might  have  time  to  escayie, — a  stratagem  which  was  completely  successful  ; 
after  which  he  proved  an  alibi  in  the  most  satisfactory  manner.  1  Cliitty's  Crim.  Law, 
p.  85  ;  1  Dickins.  Just.  629,  n.  See  also  Joy  on  Confessions,  &c.,  pp.  100-109.  The 
civilians  ])laced  little  reliance  on  naked  confessions  of  guilt,  not  corroborated  by  other 
testimony.  Carpzovius,  after  citing  tiie  opinions  of  Severns  to  that  effect,  and  enumer- 
ating the  various  kinds  of  misery  which  teriipt  its  wretched  victims  to  this  mode  of 
suicide,  adds  :  "  Quorum  omnium  ex  his  fontibus  contra  se  emissa  pronunciatio,  non 
tam  delicti  confessione  firmati  quam  vox  dolor  is,  vel  insnnientis  oratio  est."  B.  Carp- 
zov.  Pract.  Rerum  Criminal.  Pars  III.  Qufst.  114,  ]).  160.  The  just  value  of  these 
instances  of  false  confessions  of  crime  has  been  happily  stated  by  one  of  the  most  ac- 
complished of  modern  jurists,  and  is  best  expressed  in  his  own  language :  "  Whilst 
such  anomalous  cases  ought  to  render  courts  and  juries,  at  all  times,  extremely  watch- 
ful of  every  fact  attendant  on  confessions  of  guilt,  the  cases  should  never  be  invoked, 
or  so  urged  by  the  accused's  counsel,  as  to  invalidate  indiscrindnately  all  confessions 
])ut  to  the  jury,  thus  repudiating  those  salutary  distinctions  which  the  court,  in  the  ju- 
dicious exercise  of  its  duty,  shall  be  enabled  to  make.  Such  a  use  of  these  anomalies, 
which  should  be  regarded  as  mere  exceptions,  and  which  should  speak  only  in  the  voice 
of  warning,  is  no  less  unprofessional  than  impolitic  ;  and  should  be  regarded  as  otien- 
sive  to  the  intelligence  both  of  the  court  and  jury."  "  Confessions  and  circumstantial 
evidence  are  entitled  to  a  known  and  fixed  standing  in  the  law  ;  and  while  it  behooves 
students  and  lawyers  to  examine  and  carefully  weigh  their  just  force,  and,  as  far  as 
practicable,  to  define  their  proper  limits,  tiie  advocate  should  never  be  induced,  by  pro- 
fe  ;sional  zeal  or  a  less  worthy  motive,  to  argue  again.st  their  existence,  be  they  ii'spec- 
tively  invoked,  either  in  favor  of  or  against  the  accused."  Hoft'man's  Course  of  L"gal 
Study,  vol.  i.  pp.  367,  368.     See  also  The  (London)  Law  Magazine,  N.  s.  vol.  iv.  p.  31 7. 


292  LAW   OF   EVIDENCE,  [PART    II. 

value  of  this  kind  of  evidence,  and  sometimes  lead  to  its  rejec- 
tion, where,  in  civil  actions,  it  would  have  been  received. ^  The 
weighty  observation  of  Mr.  Justice  Foster  is  also  to  be  kept  in 
mind,  that  "this  evidence  is  not,  in  the  ordinary  course  of  things, 
to  be  disproved  by  that  sort  of  negative  evidence,  by  which  the 
proof  of  plain  facts  may  be,  and  often  is,  confronted. " 

§  215.  If  deliberate,  of  great  weight.  Subject  to  these  cautions 
in  receiving  and  weighing  them,  it  is  generally  agreed  that 
deliberate  confessions  of  guilt  are  among  the  most  effectual  proofs 
in  the  law.  ^  (a)  Their  value  depends  on  the  supposition  that  they 
are  deliberate  and  voluntary,  and  on  the  presumption  that  a  ra- 
tional being  will  not  make  admissions  prejudicial  to  his  interest 
and  safety,  unless  when  urged  by  the  promptings  of  truth  and 
conscience.  Such  confessions,  so  made  by  a  prisoner,  to  any 
person,  at  any  moment  of  time,  and  at  any  place,  subsequent  to 
the  perpetration  of  the  crime,  and  previous  to  his  examination 
before  the  magistrate,  are  at  common  law  received  in  evidence 
as  among  proofs  of  guilt.^  Confessions,  too,  like  admissions, 
may  be  inferred  from  the  conduct  of  the  prisoner,  and  from  his 
silent  acquiescence  in  the  statements  of  others,  respecting  him- 
self, and  made  in  his  presence;  provided  they  were  not  made 
mider  circumstances  which  prevented  him  from  replying  to 
them.^(5)  The  degree  of  credit  due  to  them  is  to  be  estimated 
by  the  jury  under  the  circumstances  of  each  case.*((?)     Confes- 

8  Foster's  Disc.  p.  243.  See  also  Lench  v.  Lench,  10  Ves.  518  ;  Smiths.  Burnham, 
3  Sumn.  438. 

1  Die.  lib.  42,  tit.  2,  De  Confess.  ;  Van  Leeuwen's  Comm.  b.  5,  ch.  21,  §  1  ;  2  Potli. 
on  Obl."(by  Evans),  App.  Num.  xvi.  §  13  ;  1  Gilh.  Evid.  by  Lolft,  216  ;  Hawk.  P.  C. 
b.  2,  c.  46,  §  3,  n.  (1)  ;  Mortimer  v.  Mortimer,  2  Hagg.  Con.  315;  Harris  v.  Harris,  2 
Hagg.  Eccl.  409. 

■2  Lambe's  Case,  2  Leach,  Cr,  Cas.  625,  629,  per  Grose,  J.  ;  Warickshall's  Case,  1 
Leach,  Cr.  Cas.  298  ;  McNally's  Evid.  42,  47. 

3  Snpra,  §  197  ;  Rex  v.  Bartlett,  7  C.  &  P.  832  ;  Pvex  v.  Smithie.s,  5  C.  &  P.  332  ; 
Rex  V.  Appleby,  3  Stark.  33  ;  Joy  on  Confessions,  &c.,  77-80  ;  Jones  y.  Morrell,  1  Car. 
&  Kir.  266. 

*  Siqrra,  §  201  ;  Coon  v.  State,  13  Sm.  &  M.  246  ;  McCann  v.  State,  Id.  471. 

(a)  State  v.  Brown.  48  Iowa,  382.  if  not   corroborated.      Com.   v.   Sanborn, 

{h)  State  V.  Smith,  30   La.  An.   Pt.   I.  116  Mass.  61.     As  the  weight  of  the  con- 

457  ;  Campbell  v.  State,  55  Ala.  80  ;  Kel-  fession  is  for  the  jury,  any  evidence  given 

ley  V.  State,  55  N.  Y.  565  ;  snpra,  §  197,  by  the  prosecutor  to  support  it,  or  by  the 

note  1.      Cf.  Dr\imright  v.  State,  29  Ga.  prisoner,  to  show  it  unworthy  of  belief,  is 

430  ;  People  ?•.  McCrea,  32  Cal.  98  ;  Law-  admissible  ;  c.  g.,  to  show  insanity  in  the 

sou  V.  State,  20  Ala.  65.     The  suspicious  prisoner  at  the  time.     State  v.  Feltes,  51 

conduct  may  also,  in  rebuttal,  be  proved  Iowa,  495.    If  the  confession  is  in  writing, 

to  have  been  caused  by  threats  or  prom-  it  may  be  proved  by  identifying  the  hand- 

ises.     State  v.  Flanagin,  25  Ark.  92.  writing  ;  its  contents  must  be  proved  by 

(c)  And  the  court  cannot  be  required  to  the  document  itself,  or  its  loss  accounted 

charge  that  they  ought  to  be  disregarded,  for.     Harris  v.  State,  6  Tex.  App.  97. 


CHAP.    XII.]  OF   CONFESSIONS.  293 

sions  made  before  the  cxamininj^  magistrate,  or  during  impris- 
onment, are  affected  by  additional  considerations. 

§  216.  Classified.  Confessions  are  divided  into  two  classes, 
namely,  judicial  and  extrajudicial.  Judicial  confessions  are  tluxse 
which  are  made  before  the  magistrate,  or  in  court,  in  the  due 
course  of  legal  proceedings ;  and  it  is  essential  that  they  be  made 
of  the  free  will  of  the  i)arty,  and  with  full  and  ijerfect  knowledge 
of  the  nature  and  conse(iuences  of  the  confession.  Of  this  kind 
are  the  preliminary  examinations,  taken  in  writing  by  the  mag- 
istrate, pursuant  to  statutes ;  and  the  plea  of  "guilty  "  made  in 
open  court  to  an  indictment.  Either  of  these  is  sufficient  to  . 
found  a  conviction,  even  if  to  be  followed  by  sentence  of  death, 
they  being  deliberately  made,  under  the  deepest  solemnities, 
with  the  advice  of  counsel,  and  the  protecting  caution  and  over- 
sight of  the  judge.  Such  was  the  rule  of  the  Roman  law :  "  Con- 
fesses in  jure,  pro  judicatis  haberi  placet;"  and  it  may  be 
deemed  a  rule  of  universal  jurisprudence.^  (a)  Extrajudicial 
confessions  are  those  which  are  made  by  the  party  elsewhere  than 
before  a  magistrate,  or  in  court ;  this  term  embracing  not  only 
explicit  and  express  confessions  of  crime,  but  all  those  admis- 
sions of  the  accused  from  which  guilt  may  be  imjjlied.  All  con- 
fessions of  this  kind  are  receivable  in  evidence,  being  proved 
like  other  facts,  to  be  weighed  by  the  jury. 

§  217.  Extrajudicial  confessions  uncorroborated.  Whether  extra- 
judicial confessions  uncorroborated  by  any  other  proof  of  the  corpus 
delicti  are  of  themselves  sufficient  to  found  a  conviction  of  the 
prisoner,  has  been  gravely  doubted.  In  the  Roman  law,  such 
naked  confessions  amounted  only  to  a  semiplena  probatio,  upon 
which  alone  no  judgment  could  be  founded;  and  at  most  the 
party  could  only  in  proper  cases  be  put  to  the  torture.  But  if 
voluntarily  made,  in  the  presence  of  the  injured  party,  or  if  re- 
iterated at  different  times  in  his  absence,  and  persisted  in,  they 
were  received  as  plenary  proof.  ^  In  each  of  the  English  cases 
usually  cited  in  favor  of  the  sufficiency  of  this  evidence,  there 
was  some  corroborating  circumstance.  ^     In  the  United  States, 

3  Cod.  Lib.  7,  tit.  59  ;  1  Poth.  on  Obi.  part.  4,  ch.  3,  §  1,  n.  798  ;  Van  Leeuwen's 
Coram,  b.  5,  c.  21,  §  2  ;  Mascarcl.  De  Probat.  vol.  i.  Concl.  344  ;  siipra,  §  179. 

i  N.  Everhard.  Concil.  xix.  8,  Ixxii.  5,  cxxxi.  1,  clxv  1,  2,  3,  clxxxvi.  2,  3,  11  ; 
Mascard.  De  Probat.  vol.  1,  Concl.  347,  349  ;  Van  Leeuwen's  Comm.  b.  5,  c.  21,  §§  4, 
5  ;  B.  Carpzov.  Praetic.  Rerum  Criminal.  Pars  IL  QuiBst.  n.  8. 

2  Wheeling's  Case,  1  Leach,  Cr.  Cas.  349,  n.,  seems  to  be  an  exception  ;  but  it  is  too 
briefly  reported  to  be  relied  on.     It  is  in  these  words  :     "But  in  the  case  of  John 

(a)  A  defendant's  plea  of  guilty  when  received  in  evidence  ag;iinst  him  as  a  con- 
arraigned  before  a  trial  justice,  is  properly     fession.     Coui.  v.  Brown,  150  Mass.  330. 


294  LAW   OF   EVIDENCE.  [PART   II. 

the  prisoner's  confession,  when  the  corpus  delicti  is  not  otherwise 
proved,  has  been  held  insuthcient  for  his  conviction;  and  this 
opinion  certainly  best  accords  with  the  humanity  of  the  criminal 
code,  and  with  the  great  degree  of  caution  applied  in  receiving 
and  weighing  the  evidence  of  confessions  in  other  cases,  and  it 
seems  countenanced  by  approved  writers  on  this  branch  of  the 
law.  ^  (rt) 

§  218.  Coufession  must  be  taken  as  a  whole.  In  the  proof  of 
confessions,  as  in  the  case  of  admissions  in  civil  cases,  the  whole 
of  what  the  priso7ier  said  on  the  subject,  at  the  time  of  making  the 
confession,  should  be  taken  together.i(5)     This  rule  is  the  dic- 

Wheeling,  tried  before  Lord  Kenyon,  at  tlie  Summer  Assizes  at  Salisbury,  1789,  it  was 
determined  that  a  i)risoner  may  be  couvic-ted  on  his  own  uonfession,  when  proved  by 
legal  testimony,  though  it  is  totally  uncorroborated  by  any  other  evidence."  But  in 
Eldridge's  Case,  Russ.  &  liy.  440,  who  was  indicted  for  larceny  of  a  horse,  the  beast  was 
found  in  his  possession,  and  he  had  sold  it  for  £12,  after  asking  £35,  which  last  was 
its  fair  value.  In  the  case  of  Falkner  and  Bond,  Id.  481,  the  person  robbed  was  called 
upon  his  recognizance,  and  it  was  proved  that  one  of  the  prisoners  had  endeavored  to 
send  a  message  to  him  to  keep  him  from  appearing.  In  White's  Case,  Id.  508,  there 
was  strong  circumstantial  evidence,  both  of  the  larceny  of  the  oats  from  the  prosecu- 
tor's stable,  and  of  the  prisoner's  guilt ;  part  of  which  evidence  was  also  given  in 
Tippet's  Case,  Id.  509,  who  was  indicted  for  the  same  larceny  ;  and  there  was  the  addi- 
tional proof,  that  he  was  an  under-hostler  in  the  same  stable.  And  in  all  these  cases, 
except  that  of  Falkner  and  Bond,  the  confessions  were  solemnly  made  before  the  exam- 
ining magistrate,  and  taken  down  in  due  form  of  law.  In  the  case  of  Falkner  and 
Bond,  the  confessions  were  repeated,  once  to  the  officer  who  appiehended  them,  ^d 
afterwaids  on  hearing  the  depositions  read  over,  which  contained  the  charge.  In  Stone's 
Case,  Dyer,  215,  pi.  50,  whicb  is  a  brief  note,  it  does  not  appear  that  the  corpus  delicti 
was  not  otherwise  proved  ;  on  the  contrary,  the  natural  inference  from  the  report  is, 
that  it  was.  In  Francia's  Case,  6  State  Tr.  58,  there  was  much  corroborative  evidence; 
but  the  prisoner  was  acquitted  ;  and  the  o{>inion  of  the  judges  went  only  to  the  suffi- 
ciency of  a  confession  solemnly  made,  upon  the  arraignment  of  the  party  for  high 
treason,  and  this  only  upon  the  particular  language  of  the  statutes  of  Edw.  VI.  See 
Foster,  Disc.  pp.  240-242. 

a  Guild's  Case,  5  Halst.  163,  185  ;  Long's  Case,  1  Hayw.  524  (455)  ;  Hawk.  P.  C. 
b.  2,  c.  46,  §  18. 

^  The  evidence  must  be  confined  to  his  confessions  in  regard  to  the  particular 
offence  of  which  he  is  indicted.  If  it  relates  to  another  and  distinct  crime,  it  is  inad- 
missible.    Reg.  V.  Butler,  2  Car.  &  Kir.  221. 

{a)  Com.  V.  Tarr,  4  Allen  (Mass.),  315;  ment  of  facts  criminating  himself,  might 
People  V.  Porter,  2  Parker,  C.  R.  14;  Peo])le  have  gone  on  to  state  facts  which  would 
V.  Hennessey,  15  Wend.  147  ;  Pailoff  v.  exculpate  himself,  but  was  interrupted 
People,  18  N.  Y.  179  ;  Bergen  v.  People,  (Levi.son  v.  State,  54  Ala.  520),  or  because 
17  111.  426  ;  Brown  v.  State,  32  Miss.  433;  the  witness  who  heard  the  confe.ssion  did 
State  V.  German,  54  Mo.  526  ;  State  v.  not  hear  the  whole  conversation  if  he  did 
Keeler,  28  Iowa,  553  ;  State  v.  Feltes,  51  hear  a  complete  confession  of  guilt.  Com. 
Iowa,  495  ;  Priest  v.  State,  10  Neb.  393  ;  v.  Pitsinger,  110  Mass.  101.  But  the  wit- 
Johnson  V,  State,  59  Ala.  37.  In  Ken-  ness  who  proves  it  must  be  able  to  remem- 
tucky,  this  is  established  by  statute,  and  ber  all  that  was  said  at  the  confession 
some  evidence  connecting  the  prisoner  with  (Berry  v.  Com.,  10  Bush  (K)'. ),  15),  and 
the  crime  is  necessary.  Cunningham  v.  if  it  was  made  in  a  language  he  was  not 
Com.,  9  Bush  (Ky. ),  149.  familiar  with,  so  that  he  failed  to  under- 

(h)  Tlie  confession  must  also  be  com-  stand  the  whole,  it  is  incompetent.    People 

plete  as  to  the  facts  it  attempts  to  state,  v.  Gelabert,  39  Cal.  663.     Compare  §  159, 

but  it  will   not  be  excluded  because  the  161  a,  165. 
prisoner,   after   making  a  complete  state- 


CHAP.    XII.]  OP   CONFESSIONS.  295 

tate  of  reason,  as  well  as  of  humanity.  The  prisoner  is  supposed 
to  have  stated  a  proposition  respecting  his  own  connection  with 
the  crime ;  but  it  is  not  reasonable  to  assume  that  the  entire 
proposition,  with  all  its  limitations,  was  contained  in  one  sentence, 
or  in  any  particular  number  of  sentences,  excluding  all  other 
parts  of  the  conversation.  As  in  other  cases  the  meaning  and 
intent  of  the  parties  are  collected  from  the  whole  writing  taken 
together,  and  all  the  instruments,  executed  at  one  time  by  the 
parties,  and  relating  to  the  same  matter,  are  equally  resorted  to 
for  that  purpose;  so  here,  if  one  part  of  a  conversation  is  relied 
on,  as  proof  of  a  confession  of  the  crime,  the  prisoner  has  a  right 
to  lay  before  the  court  the  whole  of  what  was  said  in  that  conver- 
sation ;  not  being  confined  to  so  much  only  as  is  explanatory  of 
the  part  already  proved  against  him,  but  being  permitted  to  give 
evidence  of  all  that  was  said  upon  that  occasion,  relative  to  the 
subject-matter  in  issue. ^  (5)  For,  as  has  been  already  observed 
respecting  admissions,^  unless  the  whole  is  received  and  consid- 
ered, the  true  meaning  and  import  of  the  part  which  is  good 
evidence  against  him  cannot  be  ascertained.  But  if,  after  the 
whole  statement  of  the  prisoner  is  given  in  evidence,  the  prose- 
cutor can  contradict  any  part  of  it,  he  is  at  liberty  to  do  so ;  and 
then  the  whole  testimony  is  left  to  the  jury  for  their  considera- 
tion, precisely  as  in  other  cases,  where  one  part  of  the  evidence 
is  contradictory  to  another.*  For  it  is  not  to  be  supposed  that  all 
the  parts  of  a  confession  are  entitled  to  equal  credit.  The  jury 
may  believe  that  part  which  charges  the  prisoner,  and  reject  that 
which  is  in  his  favor,  if  they  see  sufficient  grounds  for  so  doing.  ^  (c) 
If  what  he  said  in  his  own  favor  is  not  contradicted  by  evidence 
offered  by  the  prosecutor,  nor  improbable  in  itself,  it  will  natu- 
rally be  believed  by  the  jury;  but  they  are  not  bound  to  give 
weight  to  it  on  that  account,  but  are  at  liberty  to  judge  of  it  like 
other  evidence,  by  all  the  circumstances  of  the  case.     And  if  the 

2  Per  Lord  C.  J.  Abbott,  in  The  Queen's  Cnse,  2  Brod.  &  Bing.  297,  298  ;  Rex  v. 
Paine,  5  Mod.  165  ;  Hawk.  P.  C.  b.  2,  c.  46,  §  5  :  Hex  v.  Jones,  2  C.  &  P.  629  ;  Rex 
V.  Higgins,  3  C.  &  P.  603  ;  Rex  v.  Hearne,  4  C.  &  P.  215  ;  Rex  v.  Clevves,  Id.  221. 
Rex  V.  Steptoe,  Id.  397  ;  Brown's  Case,  9  Leigii,  633. 

3  Supra,  §  201,  and  cases  there  cited. 

4  Rex  V.  Jones,  2  C.  &  P.  629, 

s  Rex  V.  Higgins,  3  C.  &  P.  603  ;  Rex  v.  Steptoe,  4  C.  k  P.  397  ;  Rex  v.  Clewes, 
4  C.  &  P.  221  ;  Respublica  v.  McCarty,  2  Dall.  86,  88  ;  Bower  v.  State,  5  Mo.  364 ; 
supra,  §§  201,  215. 

(/;)    Though   such   other  parts  of  the  (c)  State  v.  West,  1  Houst.  (Del.)  C. 

conversation    may   contain   statements   in  C.   371  ;    Eiland   v.   State,   52  Ala.  322  ; 

his    favor,    explaining    his    possession   of  Griswold  v.   State,  24  Wis.  144  ;   State  v. 

stolen  goods.      State  r.  Worthington,  64  Mahon,  32  Vt.  241. 
N.  C.  594. 


293  LAW    OF    EVIDENCE.  [PART   II. 

confession  implicates  other  persons  by  name,  yet  it  must  be  proved 
as  it  was  made,  not  omitting  the  names ;  but  the  judge  will  in- 
struct the  jury,  that  it  is  not  evidence  against  any  but  the  prisoner 
who  made  it.^ 

§  219.  Must  be  voluntary.  Before  any  confession  can  be  re- 
ceived in  evidence  in  a  criminal  case,  it  must  be  shown  that  it 
was  voluntary.  The  course  of  practice  is,  to  inquire  of  the  wit- 
ness whether  the  prisoner  had  been  told  that  it  would  be  better 
for  him  to  confess,  or  worse  for  him  if  he  did  not  confess,  or 
whether  language  to  that  effect  had  been  addressed  to  him.^  "A 
free  and  voluntary  confession,"  said  Eyre,  C.  B.,^  "is  deserving 
of  the  highest  credit,  because  it  is  presumed  to  flow  from  the 
strongest  sense  of  guilt,  and  therefore  it  is  admitted  as  proof  of 
the  crime  to  which  it  refers ;  but  a  confession  forced  from  the 
mind  by  the  flattery  of  hope,  or  by  the  torture  of  fear,  comes  in 
so  questionable  a  shape,  when  it  is  to  be  considered  as  the  evi- 
dence of  guilt,  that  no  credit  ought  to  be  given  to  it;  and  there- 
fore it  is  rejected." ^  The  material  inquiry,  therefore,  is,  whether 
the  confession  has  been  obtained  by  the  influence  of  hope  or  fear, 
applied  by  a  third  person  to  the  prisoner's  mind.  The  evidence 
to  this  point,  being  in  its  nature  preliminary,  is  addressed  to  the 
judge,  who  admits  the  proof  of  the  confession  to  the  jury,  or  rejects 
it,  as  he  may  or  may  not  find  it  to  have  been  drawn  from  the  pris- 
oner, by  the  application  of  those  motives.^  (a)     This  matter  rest- 

6  Ri'X  V.  Hearne,  4  C.  &  P.  215;  Rex  v.  Clewes,  Id.  221,  per  Littledale,  J.',  who 
said  he  had  considered  this  point  very  much,  and  was  of  opinion  that  the  name's  ought 
not  to  be  left  out.  It  ma}'  be  added,  that  the  credit  to  be  given  to  the  confession  may 
depend  much  on  the  jirobability  that  the  persons  named  were  likely  to  engage  in  such 
a  transaction.  See  also  Rex  v.  Fletcher,  Id.  250.  The  point  was  decided  in  the  same 
way  in  Rex  v.  Walkley,  6  C.  &  P.  175,  by  Gurney,  B.,  who  said  it  liad  been  much  con- 
sidered by  the  judges.  Mr.  Justice  Parke  thought  otherwise,  Piarstow's  Case,  Lewin's 
Cr.  Cas.  110. 

1  1  Phil,  on  Evid.  401  ;  2  East,  P.  C.  659.  The  rule  excludes  not  only  direct  con- 
fessions, but  any  other  declaration  tending  to  implicate  the  prisoner  in  the  crime 
charged,  even  though,  in  terms,  it  is  an  accusation  of  another,  or  a  refusal  to  confess. 
Rex  V.  Tyler,  1  C.  &  P.  129  ;  Rex  v.  Enoch,  5  C.  &  P.  539.  See  further,  as  to  the 
object  of  the  rule.  Rex  v.  Court,  7  C  &  P.  486,  per  Littledale,  J.  ;  People  v.  Ward, 
15  Wend.  231. 

■•^  In  Warickshall's  Case,  1  Leach's  Cr.  Cas.  299  ;  McNally's  Evid.  47  ;  Knapp's 
Case,  10  Pick,  489,  490  ;  Chabbock's  Case,  1  Mass.  144. 

8  In  Scotland,  this  distinction  between  voluntary  confessions  and  those  which  have 
been  extoited  by  fear  or  elicited  by  promises  is  not  recognized,  but  all  confessions,  ob- 
tained in  either  mode,  are  admissible  at  the  discretion  of  the  judge.  In  strong  cases 
of  undue  influence,  the  course  is  to  reject  them  ;  otherwise,  the  credibility  of  the  evi- 
dence is  left  to  the  jury.     See  Alison's  Criminal  Law  of  Scotland,  pp.  581,  582. 

*  Boyd  ».  State,  2  Humphreys,  39  ;  Reg.  v.  Martin,  1  Arnistr.  Macartn.  &  Ogle, 
197  ;  State  v.  Grant,   9  Shepl.  171  ;  United  States  v.  Nott,  1  McLean  499  ;  State  v. 

(a)  Brown  r.  State,  91  111.  506;  John-  7  Baxt.  (Tenn.)  80.  In  Mas.sachusetts 
son  V.  State,  59  Ala.  37  ;    Wade  v.  State,     the  rule  has  varied.     In  the  earlier  cases 


CHAP.    XII.] 


OP   CONFESSIONS, 


297 


ing  wholly  in  the  discretion  of  the  judge,  upon  all  the  circum- 
stances of  the  case,  it  is  difficult  to  lay  down  particular  rules 
a  priori,  for  the  government  of  that  discretion.  The  rule  of  law, 
applicable  to  all  cases,  only  demands  that  the  confession  shall 
have  been  made  voluntarily,  without  the  appliances  of  hope  (jr 
fear  by  any  other  person ;  and  whether  it  was  so  made  or  not  is 
for  him  to  determine,  upon  consideration  of  the  age,  situation, 
and  character  of  the  prisoner,  and  the  circumstances  under  which 
it  was  made.^  Language  addressed  by  others,  and  sufficient  to 
overcome  the  mind  of  one,  may  have  no  effect  upon  that  of  an- 
other; a  consideration  which  may  serve  to  reconcile  some  con- 
tradictory decisions,  where  the  principal  facts  appear  similar  in 
the  reports,  but  the  lesser  circumstances,  though  often  very  ma- 

Harman,  3  Harringt.  567.  The  burden  of  proof,  to  show  that  an  inducement  has  been 
held  out,  or  improper  influence  used,  is  on  the  prisoner.  Reg.  v.  Garner,  12  Jur.  944; 
2  C.  &  K.  920. 

5  McNally's*Evid.  43  ;  Nnte's  Case,  6  Petersdorfs  Abr.  82  ;  Knapp's  Case,  10  Pick. 
496  ;  United  States  v.  Nott,  1  McLean,  499  ;  supra,  §  49  ;  Guild's  Case,  5  Halst.  175, 
180  ;  Drew's  Case,  8  C.  &  P.  140  ;  Rex  v.  Thomas,  7  C.  &  P.  345  ;  Rex  v.  Court,  Id. 
486. 


it  was  considered  a  question  for  the  judge. 
Chabbock's  Case,  1  Mass.  144  ;  Com.  v. 
Taylor,  5  Gush.  606  ;  Com.  v.  Morey,  1 
Gray,  461.  Then  in  several  cases  where 
the  question  of  inducement  was  a  compli- 
cated one,  the  whole  evidence  was  submit- 
ted to  the  jury,  with  instructions  that,  if 
they  were  satisfied  that  there  were  such 
inducements,  they  should  disregard  and 
reject  the  confession.  Com.  v.  Piper,  120 
Mass.  185  ;  Com.  v.  Smith,  119  Mass. 
305  ;  Com.  v.  Culleu,  111  Mass.  436  ; 
Com.  V.  Cuffee,  108  Mass.  285.  But  in  a 
later  case  (Com.  v.  Culver,  126  Mass.  464), 
the  court  has  brought  the  practice  back  to 
the  original  rule,  leaving  the  question  of 
the  admissibility  of  the  evidence  entirely 
to  the  court,  and  its  weight  to  the  jury. 
In  a  still  later  case,  the  court  in  Massa- 
chusetts say :  "  When  a  confession  is 
ottered  in  evidence,  the  question  whether 
it  is  voluntary  is  to  be  decided  primarily 
by  the  presiding  justice.  If  he  is  satistieil 
that  it  is  voluntary,  it  is  admissible  ; 
otherwise  it  should  be  excluded.  When 
there  is  conflicting  testimony,  the  humane 
l)ractice  in  this  Commonwealth  is  for  the 
judge,  if  he  decides  that  it  is  admissible,  to 
instruct  the  jury  that  they  may  consider 
all  the  evidence,  and  that  they  should 
exclude  the  confession  if,  upon  the  whole 
evidence  in  the  case,  they  are  satisfied  that 
it  was  not  the  voluntary  act  of  the  defen- 
dant." Com.  V.  Preece,  140  Mass.  276. 
And  it  seems  that  there  is  a  tendencv  --^t 


the  present  time  in  some  States  to  leave 
the  question  whether  the  confession  was 
voluntary  or  not  to  the  jury ;  and  in 
those  States,  in  cases  where  there  is  con- 
flicting evidence  as  to  the  fact  of  the 
voluntariness  of  the  confession,  the  rule 
seems  to  be  that  the  jury  are  not  required 
to  find  the  preliminary  fact  that  confes- 
sions are  voluntary,  beyond  a  reasonable 
doubt  ;  but  if  they  are  satisfied  by  the 
preponderance  of  evidence,  that  the  con- 
fessions are  voluntary,  they  become  admis- 
sible evidence.  People  v.  Howes,  81 
Mich.  396  ;  People  r.  Swetland,  77 
Mich.  53  ;  PeojJe  v.  Barker,  60  Mich. 
277  ;  Thomas  v.  State,  84  Ga.  618  ;  Cam 
V.  State,  84  Ga.  250.  On  the  question  of 
the  admissibility  of  the  confession,  the 
prisoner  miy  offer  evidence  to  the  judge  to 
show  that  the  confession  was  procured  by 
threats  or  inducements.  People  v.  Soto, 
49  Cal.  69  ;  Rufer  v.  State,  25  Ohio  St. 
464.  It  is  incumbent  on  the  prosecution, 
if  there  is  any  (]uestion  as  to  the  volunta- 
riness of  the  confession,  to  show  that  the 
confession  was  voluntary,  and  if  this  is  not 
shown,  the  confession  should  be  excluded. 
Reg.  V,  Waringham,  2  Den.  Cr.  C.  447, 
note  ;  Nicholson  v.  State,  38  Md.  140  ; 
People  V.  Soto,  49  Cal.  69  ;  Thompson's 
Case,  20  Gratt.  (Va.)  724;  Johnson  v. 
State,  30  La.  An.  Pt.  II.  881  ;  State  v. 
Garvey,  28  Id.  925  ;  Barnes  v.  State,  36 
Te.K.  356. 


298  LAW   OF   EVIDENCE.  [PART   II. 

terial  in  such  preliminary  inquiries,  are  omitted.  But  it  cannot 
be  denied  that  this  rule  has  been  sometimes  extended  quite  too 
far,  and  been  applied  to  cases  where  there  could  be  no  reason  to 
suppose  that  the  inducement  had  any  influence  upon  the  mind  of 
the  prisoner.^  (a) 

§  220.  Illustrations  of  this  rule.  The  rule  under  consideration 
has  been  illustrated  in  a  variety  of  cases.  Thus,  where  the  prose- 
cutor said  to  the  prisoner,  "  Unless  you  give  me  a  more  satisfac- 
tory account,  I  will  take  you  before  a  magistrate,"  evidence  of  the 
confession  thereupon  made  was  rejected. ^  It  was  also  rejected, 
where  the  language  used  by  the  prosecutor  was, "  If  you  will  tell 
me  where  my  goods  are,  I  will  be  favorable  to  you ; "  ^  where  the 
constable  who  arrested  the  prisoner  said,  "  It  is  of  no  use  for  you 
to  deny  it,  for  there  are  the  man  and  boy  who  will  swear  they  saw 
you  do  it ; "  ^  where  the  prosecutor  said,  "  He  only  wanted  his 
money,  and  if  the  prisoner  gave  him  that  he  might  go  to  the 
devil,  if  he  pleased;"*  and  where  he  said  he  should'  be  obliged 
to  the  prisoner,  if  he  would  tell  all  he  knew  about  it,  adding,  "  If 
you  will  not,  of  course  we  can  do  nothing,"  meaning  nothing  for 
the  prisoner.^  So  where  the  prisoner's  superior  officer  in  the 
police  said  to  him,  "  Now  be  cautious  in  the  answers  you  give  me 
to  the  questions  I  am  going  to  put  to  ycu  about  this  watch ; "  the 

8  (The  cases  on  this  subject  have  recently  been  very  fully  reviewed  in  Reg.  v.  Bal- 
dry,  16  Jur.  599  [decided  in  the  Court  of  Criminal  Appeal,  April  24,  1852,  12  Eng. 
Law  &  Eq.  590].  In  that  case,  the  constable  who  apprehended  the  prisoner,  having 
told  him  the  nature  of  the  charge,  said  :  "  He  need  not  say  anything  to  criminate  him- 
self ;  what  he  did  say  would  be  taken  down,  and  used  as  evidence  against  him  ; "  and 
the  prisoner  thereupon  having  made  a  confession,  the  court  held  the  confession  admis- 
sible. Parke,  B.,  said  :  "  By  the  law  of  England,  in  order  to  render  a  confession  ad- 
missible in  evidence,  it  must  be  perfectly  voluntary  ;  and  there  is  no  doubt  that  any 
inducement,  in  the  nature  of  a  promise  or  of  a  threat,  held  out  by  a  person  in  authority, 
vitiates  a  confession.  The  decisious  to  that  effect  have  gone  a  long  way.  Whether  it 
would  not  have  been  better  to  have  left  the  whole  to  go  to  the  jury,  it  is  now  too  lat« 
to  inquire  ;  but  I  think  there  has  been  too  much  tenderness  towards  prisoners  in  this 
matter.  I  confess  that  I  cannot  look  at  the  decisions  without  some  shame,  when  I  con- 
sider what  objections  have  prevailed  to  prevent  the  reception  of  confessions  in  evi- 
dence ;  and  I  agree  with  the  obsei-vation,  that  the  rule  has  been  extended  quite  too  far, 
and  that  justice  and  common  sense  have  too  frequently  been  sacrificed  at  the  shrine  of 
mercy."  Lord  Campbell,  C.  J.,  stated  the  rule  to  be,  that  "if  there  be  any  worldly 
advantage  held  out,  or  any  harm  threatened,  the  confession  must  be  excluded;"  in 
which  the  other  judge  concurred.) 

1  Thompson's  Case,  1  Leach's  Cr.  Cas.  325.  See  also  Commonwealth  v.  Harman,  5 
Barr,  269  ;  State  v.  Cowan,  7  Ired.  239. 

2  Cass's  Case,  1  Leach's  Cr.  Cas.  328,  n.  ;  Boyd  v.  State,  2  Humph.  39. 
8  Rex  U.Mills,  6  C.  &  P.  146. 

*  Rex  V.  Jones,  Russ.  &  Rv.  152.     See  also  Griffin's  Case,  Id.  151. 

6  Rex  V.  Partridge,  7  C.  &  P.  551.     See  also  Guild's  Case,  5  Halst.  163. 

(o)  State  V.  Grant,  22  Me.  171  ;  Com.  Com.,  29  Pa.  St.  429  ;  Spears  v.  Ohio,  2 
V.  Morey,  1  Gray  (Mass.),   461 ;    Fife  v.     Ohio  St.  583. 


CHAP.    XII.] 


OP   CONFESSIONS. 


299 


confession  was  held  inadmissible.^  There  is  more  difTiculty  in 
ascertaining  what  is  such  a  threat^  as  will  exclude  a  coniessioii ; 
though  the  principle  is  equally  clear,  that  a  confession  induced 
by  threats  is  not  voluntary,  and  therefore  cannot  be  received.' (a) 

6  Reg.  V.  Fleming,  1  Annst.  Macaitu.  &  Ogle,  330.  But  where  the  exarniiiiiig 
magistrate  said  to  the  prisoner,  "  Ik  sure  you  say  nothing  but  the  truth,  or  it  will  he 
taken  against  you,  and  may  be  given  in  evidence  against  you  at  your  trial,"  the  state- 
ment thereupon  made  was  helil  admissible.  Reg.  v.  Holmes,  1  C.  &  K.  248  ;  s.  P. 
Reg.  V.  Attvvood,  5  Cox,  C.  C.  322. 

■^  Thornton's  Case,  1  Mood.  Or.  Cas.  27  ;  Long's  Case,  6  C.  &  P.  179 ;  Roscoe's 
Crim.  Evid.  34;  Dillon's  Case,  4  Dall.  116.  Where  the  prisoner's  superior  in  the 
post-otfice  said  to  the  prisoner's  wife,  while  her  husband  was  in  custody  for  opening 
and  detaining  a  letter,  "  Do  not  be  frightened  ;  'I  hope  nothing  will  happen  to  your 
husband  beyond  the  loss  of  his  situation  ;  "  the  prisoner's  subsequent  confession  was 
rejected,  it  apjjearing  that  the  wife  might  have  communicated  this  to  the  prisoner. 
Reg.  V.  Harding,  1  Armst.  Macartn.  &  Ogle,  340.  Where  a  girl,  thirteen  years  old,  was 
charged  with  administering  poison  to  her  mistress,  with  intent  to  murder  ;  and  the 
surgeon  in  attendance  had  told  her,  "  it  would  be  better  for  her  to  speak  the  truth  ; " 
it  was  held  that  her  confession,  thereupon  made,  was  not  admissible.  Reg.  v.  Garner, 
12  Jur.  944  ;  1  Denison's  Cr.  Cas.  329. 


{a)  It  seems  settled  that  the  phrase 
"you  had  better  confess,"  or  its  equiva- 
lent, used  by  one  in  authority  towards  the 
prisoner,  is  priina  facie  an  undue  exertion 
of  influence  over  him,  and  if  unexplained 
is  enough  to  exclude  a  subsequent  confes- 
sion. 'Thus,  in  Rex  v.  Kingston,  4  C.  & 
P.  387,  "you  had  better  tell  all  you 
know,"  and  in  Reg.  v.  Bate,  11  Cox,  C. 
Ca.  686,  where  a  policeman  said  to  the 
prisoner,  "  It  might  be  better  for  you  to 
tell  the  truth  and  not  a  lie,"  it  was  held 
to  exclude  subsequent  confessions.  Kelly, 
C.  B.,  in  Reg.  v.  Jarvis,  L.  R.  1  C.  C.  R. 
96,  says  "  the  words  '  you  had  better,' 
seem  to  have  acquired  a  sort  of  technical 
meaning,  that  they  hold  out  an  induce- 
ment or  a  threat  within  the  rule  that  ex- 
cludes confessions."  People  v.  Phillips, 
42  N.  Y.  200  ;  People  v.  Bame,  49  Cal. 
342  ;  Reg.  v.  Cheverton,  2  F.  &  F.  833. 

In  a  late  English  case,  the  prisoner, 
previous  to  being  charged  before  a  magis- 
trate, was  taken  into  a  room  with  the 
jn-osecutor  and  the  police  inspector.  The 
prosecutor  then  said  to  the  prisoner,  "  He 
{i.  e.  the  police  inspector)  tells  me  you 
are  making  house-breaking  implements  ; 
if  that  is  so,  you  had  better  tell  the 
truth,  it  may  be  better  for  you,"  and  this 
was  held  enough  to  exclude  his  confes- 
sion. Reg.  V.  Fennell,  L.  R.  7  Q.  B.  Div. 
147. 

It  is  also  held  now,  that  if  the  words 
amount  to  no  more  than  a  caution  or  ad- 
vice, they  will  not  exclude  the  confession. 
Thus,  in  Reg.  v.  Reeve,  L.  R.  1  C.  C.  R. 
362,  the  words,  "  you  had  better"  confess, 
with  the  addition,  "  as  good  boys,"  said 
by  the  mother  of  one  of  the  prisoners  to 


him,  were  held  not  to  exclude  the  confes- 
sion, and  Reg.  v.  Jarvis  was  cited  with 
approval.  The  case  of  Reg.  v.  Baldry,  2 
Den.  Cr.  Cas.  430,  indicates  a  reaction 
from  the  former  extreme  cases.  While 
admitting  the  exclusionary  force  of  "  you 
had  better,"  the  court  holds  that  the 
true  test  is  whether  it  is  left  a  matter  of 
indifference  to  the  prisoner,  whether  he 
should  open  his  mouth,  and  that  from  a 
constable  these  words  "  You  need  not  say 
anything  to  criminate  yourself,  but  what 
you  do  say  will  be  taken  down  and  used 
as  evidence  against  you,"  did  not  amount 
to  an  inducement.  So,  in  Com.  v.  Sego, 
125  Mass.  210,  where  the  employer,  in  a 
prosecution  against  his  clerk  for  larceny, 
said,  "I  am  satisfied  there  are  other  re- 
ceivers whom  we  have  not  yet  discovered. 
I  should  like  to  have  you  make  a  clean 
breast  of  this  matter,  as  Williams  (an  ac- 
complice) has  done,"  the  confession  was 
admitted.  Cf.  Reg.  v.  Reason,  12  Cox. 
Cr.  Cas.  228  ;  Reg.  v.  Jones,  Id.  241  ; 
Com.  V.  Mitchell,  117  Mass.  431  ;  Fonts 
V.  State,  8  Ohio  St.  98. 

A  question  has  sometimes  arisen  whe- 
ther a  confession  in  reply  to  a  question 
which  assumes  the  guilt  of  a  prisoner  is 
admissible.  If  the  question,  under  the 
circumstances,  amounts  to  an  unfair  ad- 
vantage so  as  to  entrap  a  prisoner,  the 
confession  so  obtained  may  be  little  better 
as  a  confession  than  one  obtained  by  any 
other  undue  influence.  McClain  v.  Cora., 
110  Pa.  St.  269. 

A  promise  to  use  the  prisoner  as  State's 
witness  will  exclude  the  confession  (State 
V.  Johnson,  30  La.  An.  Pt.  II.  881.  Cf. 
Young  v.  Com.,  8  Bush  (Ky.),  366)  ;  or  to 


300  LAW   OF   EVIDENCE.  [PART   II. 

§  220.  (a)  Same  subject.  It  is  extremely  difficult  to  reconcile 
these  and  similar  cases  with  the  spirit  of  the  rule,  as  expounded 
by  Chief  Baron  Eyre,  whose  language  is  quoted  in  a  preceding 
section.  The  difference  is  between  confessions  made  volunta- 
rily, and  those  "-forced  from  the  mind  by  the  flattery  of  hope,  or 
by  the  torture  of  fear."  If  the  party  has  made  his  own  calcula- 
tion of  the  advantages  to  be  derived  from  confessing,  and  there- 
upon has  confessed  the  crime,  there  is  no  reason  to  say  that  it  is 
not  a  voluntary  confession.  It  seems  that,  in  order  to  exclude 
a  confession,  the  motive  of  hope  or  fear  must  be  directly  applied 
by  a  third  person,  and  must  be  sufficient,  in  the  judgment  of  the 
court,  so  far  to  overcome  the  mind  of  the  prisoner  as  to  render 
the  confession  unworthy  of  credit. "■^ 

§  221.  Same  subject.  But  though  promises  or  threats  have 
been  used,  yet  if  it  appears  to  the  satisfaction  of  the  judge  that 
their  influence  was  totally  done  away  before  the  confession  was 
made,  the  evidence  will  be  received.  Thus,  where  a  magistrate, 
who  was  also  a  clergyman,  told  the  prisoner  that  if  he  was  not  the 
man  who  struck  the  fatal  blow,  and  would  disclose  all  he  knew 
respecting  the  murder,  he  would  use  all  his  endeavors  and  in- 
fluence to  prevent  any  ill  consequences  from  falling  on  him;  and 
he  accordingly  wrote  to  the  Secretary  of  State,  and  received  an 
answer,  that  mercy  could  not  be  extended  to  the  prisoner;  which 
answer  he  communicated  to  the  prisoner,  who  afterwards  made  a 
confession  to  the  coroner ;  it  was  held  that  the  confession  was 
clearly  voluntary,  and  as  such  it  was  admitted,  i  So,  where  the 
prisoner  had  been  induced,  by  promises  of  favor,  to  make  a  con- 
fession, which  was  for  that  cause  excluded,  but  about  five  months 

2  See  Reg.  v.  Baldry,  16  Jur.  599,  12  Eng.  Law  &  E-i.  590,  where  this  subject  was 
very  fully  discussed,  and  the  true  principle  recognized,  as  above  quoted  from  Ch.  Baron 

^  i\ex  V.  Clewes,  4  C.  &  P.  221. 

"help  him"  if  he  will  return  the  stolen  fession.     See  Com.  v.  Cuffee,  108  Mass. 

property.    State  v.  Von  Sachs,  30  La.  An.  285.  ,    ^    ^, 

Pt    II     942  The   mere   fact    that    the   prisoner   is 

Threatening   conduct  of  the  arresting  under   arrest   is  not   of  itself   enough   to 

officer,  if    sufficient  to  elicit  a  false  con-  exclude  his  confession.     Com.  v.  bmith 

fe.ssion,  will  exclude  the  confession  made.  119    Mass.    305  ;    Com^.  /-uffee,    108 

(Self  f.  State,  6  Baxt.  (Tenn.)  244);  or  Mass.    285;     Cox    v.    Peop  e      !»    Hun 

of  the  prosecutor,  as,  where  the  prisoner  (N.  Y.),   340  ;   State  t-    Carhsle,  5/   Mo 

was  pursued  and  tired  at  by  several  men  102  ;  People  v.  Rogers,  18  ^.  Y.  9.     liut 

in  the  attempt  to  capture  him,   his  im-  it  is  provided  by  statute  in  Texas,  that  a 

mediately  subsequent   confession  was  not  confession  under  such  circumstances  must 

received.     State  v.  Drake,  82  N.  C.  592.  be  proved  to  have  been  made  voluntanly. 

Of.  Wilson  V.  State,  3  Heisk.  (Tenn.)  232.  Davis  v.  State,  8  Tex    App.  510  ;  Angell 

But  in  each  case  the  circumstances  must  ".   State,   lb.    451  ;    Marshall  v.  btate,  0 

determine   the  admissibility   of  the  con-  Tex.  App.  273. 


CHAP.    XII.]  OP   CONFESSIONS.  301 

afterwards,  and  after  having  l)een  solemnly  warned  by  two  mag- 
istrates that  he  must  expect  death  and  pnspare  to  meet  it,  he  again 
made  a  full  confession,  this  latter  confession  was  admitted  in 
evidence.  2  In  this  case,  upon  much  consideration,  the  rule  was 
stated  to  be,  that,  although  an  original  confession  may  have  been 
obtained  by  improper  means,  yet  subsequent  confessions  of  the 
same  or  of  like  facts  may  be  admitted,  if  the  court  believes,  from 
the  length  of  time  intervening,  or  from  proper  warning  of  the 
consequences  of  confession,  or  from  other  circumstances,  that  the 
delusive  hopes  or  fears,  under  the.  influence  of  which  the  original 
confession  was  obtained,  were  entirely  dispelled. ^  In  the  absence 
of  any  such  circumstances,  the  influence  of  the  motives  proved 
to  have  been  offered  will  be  presumed  to  continue,  and  to  have 
produced  the  confession,  unless  the  contrary  is  shown  by  clear 
evidence;  and  the  confession  will  therefore  be  rejected.*  (a) 
Accordingly,  where  an  inducement  has  been  held  out  by  an  offi- 
cer, or  a  prosecutor,  but  the  prisoner  is  subsequently  warned  by 
the  magistrate,  that  what  he  may  say  will  be  evidence  against 
himself,  or  that  a  confession  will  be  of  no  benefit  to  him,  or  he 
is  simply  cautioned  by  the  magistrate  not  to  say  anything  against 
liimself,  his  confession,  afterwards  made,  will  be  received  as  a 
voluntary  confession.^ 

2  Guild's  Case,  5  Halst.  163,  168. 

3  Guild's  Case,  5  Halst.  180.  But  otherwise  the  evidence  of  a  subsequent  confes- 
sion, made  on  the  basis  of  a  prior  one  unduly  obtained,  will  be  rejected.  Common- 
wealth V.  Harman,  4  Barr,  269  ;  State  v.  Roberts,  1  Dev.  259. 

*  Roberts's  Case,  1  Dev.  259,  264  ;  Meynell's  Case,  2  Lewin's  Cr.  Cas.  122  ;  Sher- 
rington's Case,  Id.  123  ;  Rex  v.  Cooper,  5  C.  &  P.  535. 

5  Kex  V.  Howes,  6  C.  &  P.  404  ;  Rex  v.  Richards,  5  C.  &  P.  318  ;  Nute's  Case,  2 

{a)  As  the  presumption  is  based  on  the  to  decide  whether  the  proof  is  sufficient, 

existence  of  such  inducements  as  vitiated  Porter  v.  State,  ante. 

the  tirit  confession,  it   was  held   that   if  In  Reg.  v.  Bate,  ante,  it  was  held  that 

these  inducements  failed  to  elicit  a  con-  in  England,  reading  the  statutory  caution 

fession  when  they  were  first  applied  by  one  which  is  required  to  be  read  to  the  sus- 

])erson,  a  subsequent  confession  to  another  pected  person  before  the  examination,  is 

person   will   not    be   excluded    by   them,  enough  to  rebut   the  presumption  that  a 

McAdory  v.   State,   62  Ala.  154.     It  has  prior  inducement  still  is  in  force.     If  the 

l)een  held  that,  under  the  circumstances,  confession  of  an  accomplice  is  introduced 

a  confession  was  not  excluded  by  the  fact  with  proof  that  it  was  obtained  by  prom- 

thiit  another,  made  two  days  previously,  ises   of  reward,  in    order   to  weaken   the 

was  made  under  duress.  State  v.  Frazier,  6  credit  of  his  confession  of  the  crime  in 

Biixt.  (Tenn.)  539.  Cf.  State  v.  Chambers,  open  court  on  the  trial  of  his  accomplice, 

39  Iowa,  179.     The  proof  that  the  eff'ect  it  is  competent  for  tlie  State  to  introduce 

of  the  former  inducements  has  been  done  rebutting  evidence  that  the  first  confession 

away  must  be  clear.     Reg.  v.  Bate,  11  Cox,  was  voluntary,  since  the  evidence  that  the 

C.  C.  686  ;  Walker  v.  State,  7  Tex.  App.  first  confession  was  procured  by  promises 

245  ;  Porter  v.  State,  55  Ala.  95  ;  State  v.  aflVcts  the  credibility  of  the  witness  and 

Jones,  54  Mo.  478  ;  Beery  v.  U.  S.,  2  Col.  may  therefore  be  met  by  the  counter-tes- 

Terr.  186  ;  Peoples.  Johnson,  41  Cal.  452;  timony  referred  to.     Com.  v.  Ackert,  133 

State  V.  Lawhorne,  66  N.  C.  638;  Com.  v.  Mass. "402. 
Cullen,  111  Mass.  435.     And  the  court  is 


302  LAW   OP    EVIDENCE.  [PART   II. 

§  222.  Inducements.  Authority.  In  regard  to  the  person  hy 
whom  the  inducements  were  offered,  it  is  very  clear,  that  if  they 
were  offered  by  the  prosecutor, ^  or  by  his  wife,  the  prisoner  being 
his  servant, 2  or  by  an  officer  having  the  prisoner  in  custody,^  or 
by  a  magistrate,^  or,  indeed,  by  any  one  having  authority  over 
him,  or  over  the  prosecution  itself,^  or  by  a  private  person  in  the 
presence  of  one  in  authority,^  —  the  confession  will  not  be  deemed 
voluntary,  and  will  be  rejected,  (a)     The  authority,  known  to  be 

Rnss.  on  Crimes,  648  ;  Joy  on  the  Admissibility  of  Confessions,  pp.  27,  28,  69-75  ; 
Kex  V.  Bryan,  Jebb's  Cr.  Cas.  157.  If  the  inducement  was  held  out  by  a  person  of 
superior  authority,  and  the  confession  was  afterwards  made  to  one  of  inferior  authority, 
as  a  turnkey,  it"  seems  inadmissible,  unless  the  prisoner  was  first  cautioned  by  the 
latter.  Kex'  v.  Cooper,  5  C.  &  P.  535.  In  United  States  v.  Cliapman,  4  Am.  Law 
Jour.  N.  s.  440,  the  prisoner  had  made  a  confession  to  the  high  constable  who  had  him 
under  arrest,  upon  express  promises  of  favor  by  the  officer.  After  being  detained  forty- 
four  hours  in  the  watch-house,  he  was  brought  before  the  mayor,  in  the  sumc  apart- 
ment where  he  had  made  the  confession,  and  his  examination  was  taken  in  jyrcsencc  of 
the  same  high  constable.  The  mayor  knew  nothing  of  the  previous  confession;  and  gave 
the  prisoner  no  more  than  the  usual  caution  not  to  an.swer  any  questions  unless  he 
pleased,  and  telling  him  that  he  was  not  bound  to  criminate  himself.  In  this  examina- 
tion, the  same  confession  was  repeated  ;  but  the  judge  rejected  it  as  inadmissible,  being 
of  opinion  that,  being  made  in  the  same  room  where  it  was  first  made,  and  under  the 
eye  of  the  same  police  officer  to  whom  it  was  made,  there  was  "  strong  reason  to  infer 
tiiat  the  last  examination  was  but  intended  to  put  in  due  form  of  law  the  first  confes- 
sion, and  that  the  promise  of  favor  continued  as  first  made."  The  legal  presumption, 
he  said,  was,  that  the  influence,  which  induced  the  confession  to  the  officer,  continued 
when  it  was  made  to  the  mayor  ;  and  this  presumption  it  was  the  duty  of  the  prosecu- 
tor to  repel. 

1  Thompson's  Case,  1  Leach's  Cr.  Cas.  325  ;  Cass's  Case,  Id.  328,  n.  ;  Eex  v.  Jones, 
Russ.  &  K.  152  ;  Rex  v.  Griffin,  Id.  151  ;  Chabbock's  Case,  1  Mass.  144  ;  Kex  v.  Gib- 
bons, 1  C.  &  P.  97,  n.  («)  ;  Rex  v.  Partridge,  7  C.  &  P.  551  :  Koberts's  Case,  1  Dev. 
259  ;  Rexr.  Jenkins,  Russ.  &  Ry.  492;  Reg.  v.  Hearn,  1  Car.  &  Marsh.  109.  See 
also  Phil.  &  Am.  on  Evid.  430,  431. 

2  Rex  V.  Upchurch,  1  Mood.  Cr.  Cas.  465  ;  Reg.  v.  Hewett,  1  Car.  &  Mar.shm. 
534  ;  Rex  v.  Taylor,  8  C.  &  P.  733.  In  Rex  r.  Simpson,  1  Mood.  Cr.  Cas.  410,  the 
inducements  were  held  out  by  the  mother-in-law  of  the  prosecutor,  in  his  house,  and 
in  the  presence  of  his  wife,  who  was  very  deaf ;  and  the  confessions  thus  obtained 
were  held  inadmissible.  See  Mr.  Joy's  Treatise  on  the  Admissibility  of  Confessions, 
pp.  .5-10. 

3  Kex  V.  Swatkins,  4  C.  &  P.  548  ;  Rex  v.  Mills,  6  C.  &  P.  146  ;  Rex  v.  Sextons, 
6  Petersd.  Abr.  84  ;  Rex  v.  Shepherd,  7  C.  &  P.  579.  See  also  Rex  v.  Thornton,  1 
Moo<l.  Cr.  Cas.  27.     But  see  Com.  v.  Mosler,  4  Barr,  264. 

4  Rudd's  Case,  1  Leach's  Cr.  Cas.  135  :  Guild's  Case,  5  Halst.  163. 

5  Rex  V.  Parratt,  4  C.  &  P.  570,  which  was  a  confession  by  a  sailor  to  his  captain, 
who  threatened  him  with  prison,  on  a  charge  of  stealing  a  watch.  Rex  ?;.  Enoch, 
5  C.  &  P.  539,  was  a  confession  made  to  a  woman,'  in  whose  custody  the  prisoner,  who 
was  a  female,  had  been  left  by  the  officer.  The  official  character  of  the  person  to 
whom  the  confession  is  made  does  not  affect  its  admis.sibility,  provided  no  inducement's 
were  employed.  Joy  on  Confessions,  &c.,  pp.  59-61  :  Rex  v.  Gibbons,  1  C.  &  P.  97, 
note  a;  Knapp's  Case,  10  Pick.  477  ;  Mosler's  Case,  6  Pa.  Law  Journ.  90  ;  4  Barr, 
264. 

6  Roberts's  Case,  1  Dev.  259  ;  Rex  v.  Pountney,  7  C.  &  P.  302  ;  Reg.  v.  Laugher,  2 
C.  &  K.  225. 

(a)  The  master  is  a  person  in  authority,  held  not  admissible.     People  v.  Thomp- 

if  he  is  also  the  prosecutor.    Com.  v.  Sego,  son,  84  Cal.  598. 

125  Mass.  210.     A  confession  to  a  sheriff  In  Reg.  v.  Parker,  Leigh  &  Cave,  42,  it 

upon  his  statement  that  it  would  be  better  was  held  that  where  one  of  tiiree  bvotbers, 

for   the   defendant   to   confess,    has   been  all  charged  with  stealing,  said  in  the  pres- 


CHAP.    XII.]  OP   CONFESSIONS.  303 

possessed  by  those  persons,  may  well  be  supposed  both  to  animate 
the  prisoner's  hopes  of  favor,  on  the  one  hand,  and  on  the  other 
to  inspire  him  with  awe,  and  in  some  deforce  to  overcome  the 
powers  of  his  mind.  It  has  been  argued,  that  a  confession  made 
upon  the  promises  or  threats  of  a  person,  erroneously  believed  by 
the  prisoner  to  possess  such  authority,  the  person  assuming  to  act 
in  the  capacity  of  an  officer  or  magistrate,  ought,  upon  the  same 
principle,  to  be  excluded.  The  principle  itself  would  seem  to 
require  such  exclusion;  but  the  point  is  not  known  to  have  I'e- 
ceived  any  judicial  consideration. 

§228.  Same  subject.  But  whether  a  confession,  waiie  to  a 
person  ivho  has  no  authority,  upon  an  inducement  held  out  by  that 
person,  is  receivable,  is  a  question  uj)on  which  learned  judges  are 
known  to  entertain  opposite  opinions.  ^  In  one  case,  it  was  laid 
down  as  a  settled  rule,  that  anij  person  telling  a  prisoner  that  it 
would  be  better  for  him  to  confess,  will  always  exclude  any  con- 
fession made  to  that  person. ^  And  this  rule  has  been  applied  in 
a  variety  of  cases,  both  early  and  more  recent.^  On  the  other 
hand,  it  has  been  held,  that  a  promise  made  by  an  indifferent 
person,  who  interfered  officiously,  without  any  kind  of  authority, 
and  promised,  without  the  means  of  performance,  can  scarcely 
be  deemed  sufficient  to  produce  any  effect  even  on  the  weakest 
mind,  as  an  inducement  to  confess;  and,  accordingly,  confes- 
sions made  under  such  circumstances  have  been  admitted  in  evi- 
dence.* The  difficulty  experienced  in  this  matter  seems  to  have 
arisen  from  the  endeavor  to  define  and  settle,  as  a  rule  of  law, 
the  facts  and  circumstances  which  shall  be  deemed,  in  all  cases, 

1  So  stated  by  Parke,  B.,  in  Eex  v.  vSpencer,  7  C.  &  P.  776.  See  also  Rex  v.  Pount- 
ney,  Id.  302,  per  Alderson,  B. ;   Rex  v.  Row,  Russ.  &  Ry.  153,  per  Ohaiubre,  J. 

2  Rex  V.  Dunn,  4  C.  &  P.  543,  per  Bosanquet,  J. ;  Rex  v.  Slaughter,  Id.  544. 

8  See,  accordingly.  Rex  v.  Kingston,  4  C.  &  P.  387  ;  Rex  i'.  Clevves,  Id.  221  ;  Rex 
V.  Walkley,  6  C.  &  P.  175  ;  Guild's  Case,  5  Halst.  163  ;  Knapp's  Case,  9  Pick.  496. 
500-510  ;  Rex  v.  Thomas,  6  C.  &  P.  353. 

*  Rex  V.  Hardwick,  6  Petersd.  Abr.  84,  per  Wood,  B.  ;  Rex  v.  Ta5dor,  8  C.  &  P. 
734.  See  accordingly  Rex  v.  Gibbons,  1  C.  &  P.  97  ;  Rex  v.  Tyler,  Id.  129  ;  Rex  v. 
Lingate,  6  Petersd.  84  ;  2  Lewin's  Cr.  Cas.  125,  n.  In  Rex  v.  Wild,  1  Mood.  Cr. 
Cas.  452,  tlie  prisoner,  a  boy  under  fourteen,  was  required  to  kneel,  and  was  solemnly 
adjured  to  tell  the  truth.  Tlie  conviction,  upon  his  confession  thus  made,  was  held 
right,  but  the  mode  of  obtaining  the  confession  was  very  much  disaiiproved.  Rex  v. 
Row,  Russ.  &  Ry.  153. 

ence  of  the  prosecutor  and  a  policeman,  to  cer,  "  How  came  you  to  do  it  ? "   the  con- 

his  brother,  "  Well,  John,  you  had  better  fession  was  admitted.     Reg.  v.  Vernon,  12 

tell  Mr.Walker  (the  prosecutor)  the  truth,"  Cux,   Cr.   C.   153.     Cf.    Reg.   v.   Sleeman, 

the  confession  was  admissible.     C^.  Reg.  v.  Dears.  249. 

Luekhurst,  6  Cox,  C.  C.  243.     And  where  A  confession  made  to  a  fellow-convict, 

a  female  prisoner  was  temporarily  placed  in  prison,  is  admissil)le.     Com.  v.  Hanlou, 

under  the  charge  of  another  woman,  who  3  Brewst.  (Pa.)  4G1. 
said,  while  not  in  the  presence  of  the  offi- 


304  LAW    OP    EVIDENCE.  [  PART   II. 

to  have  influenced  the  mind  of  the  prisoner,  in  making  the  con- 
fession. In  regard  to  persons  in  authority,  there  is  not  much 
room  to  doubt.  Public  policy,  also,  requires  the  exclusion  of 
confessions,  obtained  by  means  of  inducements  held  out  by  such 
persons.  Yet  even  here  the  age,  experience,  intelligence,  and 
constitution,  both  physical  and  mental,  of  prisoners,  are  so  vari- 
ous, and  the  power  of  performance  so  different,  in  the  different 
persons  promising,  and  under  different  circumstances  of  the 
prosecution,  that  the  rule  will  necessarily  sometimes  fail  of 
meeting  the  truth  of  the  case.  But  as  it  is  thought  to  succeed 
in  a  large  majority  of  instances,  it  is  wisely  adopted  as  a  rule  of 
law  applicable  to  them  all.  Promises  and  threats  by  private  per- 
sons, however,  not  being  found  so  uniform  in  their  operation, 
perhaps  may,  with  more  propriety,  be  treated  as  mixed  questions 
of  law  and  fact ;  the  principle  of  law,  that  the  confession  must  be 
voluntary,  being  strictly  adhered  to,  aud  the  question,  whether 
the  promises  or  threats  of  the  private  individuals  who  employed 
them,  were  sufficient  to  overcome  the  mind  of  the  prisoner,  being 
left  to  the  discretion  of  the  judge,  under  all  the  circumstances  of 
the  case.  ^  (a) 

5  In  Scotland,  it  is  left  to  the  jury.  See  Alison's  Criminal  Law  of  Scotland, 
pp.  581,  582  ;  supra,  §  219,  n.  Mr.  Joy  maintains  the  unqualijied  proposition,  that 
"a  confession  is  admissible  in  evidence,  although  an  inducement  is  held  out,  if  such 
inducement  proceeds  from  a  person  not  in  authority  over  the  prisoner  ; "  and  it  is 
strongly  supported  by  the  authorities  he  cites,  which  are  also  cited  in  the  notes  to  this 
section.  See  Joy  on  the  Admissibility  of  Cimfessions,  sec.  2,  pp.  23-33.  His  work 
has  been  published  since  the  first  edition  of  this  book  ;  but,  upon  a  deliberate  revision 
of  the  point,  I  have  concluded  to  leave  it  where  the  learned  judges  have  stated  it  to 
stand,  as  one  on  which  they  were  divided  in  opinion. 

In  a  recent  case,  in  England,  the  rule  stated  in  the  text  is  admitted  to  be  the  best 
rule,  though  the  learned  jiulges  felt  themselves  restricted  from  adopting  it  by  reason  of 
previous  decisions.  It  was  a  prosecution  against  a  female  servant  for  concealing  the 
death  of  her  bastard  child  ;  and  the  question  was  upon  the  admissibilitj-  of  a  confession 
made  to  her  mistress,  who  told  her  "she  had  better  speak  the  truth."  The  judg- 
ment of  the  court  was  delivered  by  Parke,  B.,  as  follows  :  "  The  cases  on  this  subject 
have  gone  quite  far  enough,  and  ought  not  to  be  extended.     It  is  admitted  that  the 

{a)  This  method  of  treating  the  ques-  Pode,    §  3793 ;  Johnson  v.  State,    61   Ga. 

tion   was   adopted   in  Beggarly   v.   State,  305. 

8   Baxt.    (Tenn.)   520,   and   McAdory   v.  In   Com.    v.    Morej',   1   Gray  (Mass.), 

State,  62  Ala.    154.     In  Young  r.  Com.,  461,    p.    463,    Shaw,    C.    J.,    says:    "Of 

8    Bush   (Ky.),   366,  it  is  said  that  con-  course  such  inducement  must  be  held  out 

fessions  iiiade  to   persons  not  in   author-  to  the  accused  by  some  one  wlio  has,  or 

ity   are    generally   admissible,    and    that  who  is  supposed  by  the  accused  to  have, 

seems   to   be  the  rule  in    several   of  the  some  power  or  authority  to  assure  to  him 

United   States,  unless   the   circumstances  the  ])romised  good,  or  cause  or  influence 

show  a  plain  case  of  gross  intimidation,  the  threatened  injury."    Cf.  Com.  v.  Tay- 

Cf.  Com.  V.  Howe,  2  Allen  (Mass.),  153  ;  lor,  5  Ciitih.  (Mass.)  606. 
State  r.   Darnell,   1   Houst.   C.  C.   (Del.)  Stephen    (Dig.    Evid.    art.    22)    states 

321  ;    Ulrich   v.    People,    39    Mich.    245  ;  the  English  rule  to  be,  without  exception, 

Ela:,'g  V.  Peo])le,  40  Mich.  706  ;  and  this  that  the  inilucement,   threat,   or  promise 

rule'ls  established  by  statute  in  Georgia,  must  proceed  from  a  person  iu  authority. 


CHAP.    XII.]  OP   CONFESSIONS.  305 

§  224.  Examinations.  The  same  rule,  that  the  confession  must 
be  vohmtary,  is  applied  in  cases  where  the  prisoner  has  been  ex- 
amined before  a  magistrate^  in  the  course  of  which  examination 
the  confession  is  made.  The  practice  of  examining  the  accused 
was  familiar  in  the  Roman  jurisprudence,  and  is  still  continued 
in  Continental  Europe  ;i  but  the  maxim  of  the  common  law  was. 
Nemo  tenetur  prodere  seipsum ;  and  therefore  no  examination  of 
the  prisoner  himself  was  permitted  in  England,  until  the  passage 
of  the  statutes  of  Philip  and  Mary.2(a)     By  these  statutes,  the 

confessions  ouglit  to  be  excluded,  unless  voluntary,  and  the  judge,  not  the  jury,  ought 
to  determine  whether  they  are  so.  One  element  in  the  consideration  of  the  (question  as 
to  their  being  voluntary  is,  whether  the  threat  or  inducement  was  such  as  to  be  likely 
to  inlluence  the  prisoner.  Perhaps  it  would  have  been  better  to  have  held  (wlien  it 
was  determined  that  the  jud;je  was  to  decide  whether  the  confession  was  voluntaiy) 
that  in  all  cases  he  was  to  diecide  that  point  upon  his  own  view  of  all  the  circum- 
stances, including  the  nature  of  the  threat  or  inducement,  and  the  character  of  the 
person  holding  it  out,  together  ;  not  necessarily  excluding  the  confession  on  account 
of  the  character  of  the  person  holding  out  the  inducement  or  threat.  But  a 
rule  has  been  laid  down  in  different  precedents  by  which  we  are  bound,  and  that 
is,  if  the  threat  or  inducement  is  held  out,  actually  or  constructively,  by  a  per- 
son m  authority,  it  cannot  be  received,  however  slight  the  threat  or  inducement  ; 
and  the  prosecutor,  magistrate,  or  constable  is  such  a  person  ;  and  so  the  master 
or  mistress  may  be.  If  not  held  out  by  one  in  authority,  they  are  clearly  admis- 
sible. The  aiithorities  are  collected  in  Mr.  Joy's  very  able  treatise  on  Confessions 
and  Challenges,  p.  23.  But,  in  referring  to  the  cases  where  the  master  and  mistress 
have  been  held  to  be  persons  in  authority,  it  is  only  when  the  offence  concerns  the 
master  or  mistress  that  their  holding  out  the  threat  or  promise  renders  the  confession 
inadmissible.  In  Rex  v.  IJpchurch  (1  M.  Cr.  C.  46.5),  the  offence  was  arson  of  the 
dwelling-house,  in  the  management  of  which  the  mistress  took  a  part.  Reg.  v.  Taylor 
(8  Car.  &  P.  733)  is  to  the  like  effect.  So,  Rex  v,  Carrington  (Id.  109)  and  Rex  v. 
Howell  (Id.  534).  So,  where  the  threat  was  used  by  the  master  of  a  ship  to  one  of  the 
crew,  and  the  oll'ence  committed  on  board  the  ship  by  one  of  the  crew  towards  another; 
and  in  that  case  also  the  master  of  the  ship  threatened  to  apprehend  him  ;  and  the 
offence  being  a  felony,  and  a  felony  actually  committed,  would  have  a  power  to  do  so, 
on  reasonable  suspicion  that  the  prisoner  was  guilty.  In  Rex  v.  Warringham,  tried 
before  me  at  the  Surrey  Spring  Assizes,  1851,  the  confession  was  in  conse(|uence  of  what 
was  said  by  the  mistress  of  the  prisoner,  she  being  in  the  habit  of  managing  the  shop, 
and  the  offence  being  larceny  from  the  shop.  This  appears  from  my  note.  In  the 
present  case,  the  offence  of  the  prisoner  in  killing  her  child,  or  concealing  its  dead 
bod}',  was  in  no  way  an  offence  against  the  mistress  of  the  house.  She  was  not  the 
prosecutrix  then,  and  there  was  no  probability  of  herself  or  the  husband  being  the 
prosecutor  of  an  indictment  for  that  offence.  In  practice,  the  prosecution  is  always 
the  result  of  a  coroner's  inquest.  Therefore  we  are  clearly  of  opinion  that  her  con- 
fession was  properly  received."  See  Reg.  v.  Moore,  16  Jur.  622 ;  12  Eng.  L.  &  Eq. 
583. 

In  South  Caiolina,  it  has  been  held,  that  where  the  prisoner,  after  due  warning  of  all 
the  consequences,  and  the  allowance  of  sufficient  time  for  reflection,  confesses  his  guilt 
to  a  private  person,  who  has  no  control  over  his  person  or  the  prosecution,  the  confes- 
sion is  admissible  in  evidence,  although  the  person  may  have  influence  and  ability  to 
aid  him.     State  v.  Kirby,  1  Strob.  155. 

1  The  course  of  proceeding,  in  such  cases,  is  fully  detailed  in  B.  Carpzov.  Practicae 
Rerum  Criminal.  Pars  III.,  Qnaest.  113,  per  tot. 

2  1  &  2  Phil.  &  M.  c.  13;  2  &  3  Phil.  &  M.  c.  10 ;  7  Geo.  IV.  c.  64  ;  4  Pd.  Comm. 
295.  The  object  of  these  statutes,  it  is  said,  is  to  enable  the  judge  to  see  whether  the 
offence  is  bailable,  and  that  both  the  judge  and  jury  may  see  whether  the  witnesses 

(a)  These  statutes  have  now  been  su-  c.  42,  s.  xviii.  which  prescribes  the  form  of 
perseded  in  England  by  11  and  12  Vict,     the  only  question  which  a  magistrate  can 

VOL.  I.  —  20 


306  LAW   OF   EVIDENCE.  [PART   II. 

main  features  of  which  have  been  adopted  in  several  of  the 
United  States,^  the  justices,  before  whom  any  person  shall  be 
brought,  charged  with  any  of  the  crimes  therein  mentioned,  shall 
take  the  examination  of  the  prisoner,  as  well  as  that  of  the  wit- 
nesses, in  writing,  which  the  magistrate  shall  subscribe,  and 
deliver  to  the  proper  officer  of  the  court  where  the  trial  is  to  be 
had.  The  signature  of  the  prisoner,  when  not  specially  required 
by  statute,  is  not  necessary ;  though  it  is  expedient,  and  therefore 
is  usually  obtained.*  The  certificate  of  the  magistrate,  as  will 
be  hereafter  shown  in  its  proper  place,  ^  is  conclusive  evidence  of 
the  manner  in  which  the  examination  was  conducted ;  and,  there- 
fore where  he  had  certified  that  the  prisoner  was  examined  under 
oath,  parol  evidence  to  show  that  in  fact  no  oath  had  been  admin- 
istered to  the  prisoner  was  held  inadmissible.^  But  the  examina- 
tion cannot  be  given  in  evidence  until  its  identity  is  proved."  If 
the  prisoner  has  signed  it  with  his  name,  this  implies  that  he 

are  consistent  or  contradictory,  in  their  accounts  of  the  transaction.  The  prisoner 
should  only  be  asked,  whether  he  wishes  to  say  anything  in  answer  to  the  charge, 
when  he  had  heard  all  that  the  witnesses  in  support  of  it  had  to  say  against  him. 
See  Joy  on  Confession,  &c.,  pp.  92-94  ;  Rex  v.  Saunders,  2  Leach's  Cr.  Cas.  652  ; 
Rex  r.  Fagg,  4  C.  &  P.  567.  But  if  he  is  called  upon  to  make  his  answer  to  the 
charge,  before  he  is  put  in  possession  of  all  the  evidence  against  him,  this  irregularity 
is  not  sufficient  to  exclude  the  evidence  of  his  confession.  Rex  v.  Bell,  5  C.  &  P.  163. 
His  statement  is  not  an  answer  to  the  depositions,  but  to  the  charge.  He  is  not 
entitled  to  have  the  depositions  first  read,  as  a  matter  of  right.  But  if  his  examination 
refers  to  any  particular  depositions,  he  is  entitled  to  have  them  read  at  the  trial,  by 
way  of  explanation.  Dennis's  Case,  2  Lew.  Vr.  Cas.  261.  See  further,  Rowland  v. 
Ashby,  Ry.  &  M.  231,  per  Best,  C.  J. ;  Rex  v.  Simons,  6  C.  &  P.  540  ;  Reg.  v.  Arnold, 
8  C.  &  P.  621. 

3  See  New  York  Revised  Statutes,  part  4,  e.  2,  tit.  2,  §§  14-16,  26  ;  Bellinger's 
Case,  8  Wend.  595,  599  ;  Elmer's  Laws  of  New  Jersey,  p.  450,  §  6  ;  Laws  of  Alabama 
(Toulmin's  Digest),  tit.  17,  c.  3,  §  2,  p.  219  ;  Laws  of  Tennessee  (Carrnthers  and  Nich- 
olson's Digest),  p.  426  ;  North  Carolina,  Rev.  Stat.  c.  35,  §  1  ;  Laws  of  Mississippi 
(Alden  and  Van  Hoesen's  Digest),  c.  70,  §  5,  p.  532  ;  Hutcliinson's  Dig.  c.  50,  art.  2, 
§  5  ;  Laws  of  Delaware  (Revised  Code  of  1829),  p.  63  ;  Brevard's  Laws  of  South  Caro- 
lina, vol.  i.  p.  460  ;  Laws  of  Missouri  (Revision  of  1835),  p.  476  ;  Id.  Rev  Stat.  1845, 
c.  138,  §  15-17.  See  also  Massachusetts  Revised  Stat.  c.  85,  §  25  ;  Respublica  v.  Mc- 
Carty,  2  Dall.  87,  per  McKean,  C.  J. 

*"l  Chitty's  Crim.  I^aw,  87  ;  Lambe's  Case,  2  Leach's  Cr.  Cas.  625. 

5  Lifra,  §  227. 

6  Rex  V.  Smith  &  Homage,  1  Stark.  242  ;  Rex  v.  Rivers,  7  C.  &  P.  177  ;  Reg.  i;, 
Pikesley,  9  C.  &  P.  124. 

7  Hawk.  P.  C.  b.  2,  c.  46,  §  3,  n.  (1). 

put  to  a  prisoner  in  his  preliminary  exam-  be  admissible.  If  any  other  question  should 

ination,  and  which  is  as  fr)llows  :  —  be  put  by  the  magistrate,  the  answer  would 

"Having  heard  the  evidence,  do  you  be  excluded,  becau.se  influenced  by  the  sit- 

wish   to   say  anything  in    answer  to  the  nation  of  the  prisoner.     Reg.  v.   Pettit,  4 

charge?     You  are  not  obliged  to  say  any-  Cox,  C.  C.  164;  Reg.  v.  Berriman,  6  Id. 

thing  unless  you  desire  to  do  so,  but  what-  388.     Cf.  Stephen,  Dig.  Evid.  note  16. 

ever'you  say  will  be  taken  down  in  writing.  As  to  the  admissibility  of  confessions 

and  may  be  given  in  evidence  against  you  made  by  the  accused  while  in  the  custody 

upon  your  trial."  of  a  policeman,  see   Reg.  v.  Johnston,  15 

The  answer  given  to  this  question  would  Ir.  C.  L.  69. 


CHAP.    XII.]  OF   CONFESSIONS.  SOT 

can  read,  and  it  is  admitted  on  proof  of  his  signature ;  but  if  be 
has  signed  it  with  his  mark  only,  or  has  not  signed  it  at  all,  tbe 
magistrate  or  his  clerk  must  be  called  to  identify  the  writing, 
and  prove  that  it  was  truly  read  to  the  prisoner,  who  assented  to 
its  correctness.^ 

§  225.  Same  subject.  The  manner  of  examination  is,  therefore, 
particularly  regarded;  and  if  it  appears  that  the  prisoner  had  not 
been  left  wholly  free,  and  did  not  consider  himself  to  be  so,  in 
what  he  was  called  upon  to  say,  or  did  not  feel  himself  at  liberty 
wholly  to  decline  any  explanation  or  declaration  whatever,  the 
examination  is  not  held  to  have  been  voluntary.  ^  In  such  cases, 
not  only  is  the  written  evidence  rejected,  but  oral  evidence  will 
not  be  received  of  what  the  prisoner  said  on  that  occasion. ^  The 
prisoner,  therefore,  must  not  be  sworn.  ^  (a)  But  where,  being 
mistaken  for  a  witness,  he  was  sworn,  and  afterwards,  the  mis- 
take being  discovered,  the  deposition  was  destroyed;  and  the 
prisoner,  after  having  been  cautioned  by  the  magistrate,  subse- 
quently made  a  statement;  this  latter  statement  was  held  admis- 
sible.* It  may,  at  first  view,  appear  unreasonable  to  refuse 
evidence  of  confession,  merely  because  it  was  made  under  oath, 
thus  having  in  favor  of  its  truth  one  of  the  highest  sanctions 
known  in  the  law.  But  it  is  to  be  observed,  that  none  but  volun- 
tary confessions  are  admissible ;  and  that  if  to  the  perplexities 

8  Rex  V.  Chappel,  1  M.  &  Rob.  395. 

1  The  proper  course  to  be  pursued  in  these  cases,  by  the  examining  magistrate  -is 
thus  laid  down  by  Gurney,  B.,  in  Rex  v.  Green,  5  C.  &  P.  312  :  "  To  dissuade  a  pris- 
oner was  wrong.  A  prisoner  ought  to  be  told  that  his  confessing  will  not  operate  at  all 
in  his  favor  ;  and  that  he  must  not  expect  any  favor  because  he  makes  a  confession  ; 
and  that,  if  any  one  has  told  him  that  it  will  be  better  for  him  to  confess,  or  worse  for 
him  if  he  does  not,  he  must  pay  no  attention  to  it  ;  and  that  anything  he  sa^-s  to  crim- 
inate himself  will  be  used  as  evidence  against  him  on  his  trial.  After  that  admoni- 
tion, it  ought  to  be  left  entirely  to  himself  whether  he  will  make  any  statement  or  not; 
but  he  ought  not  to  be  dissuaded  from  making  a  perfectly  voluntary  confession,  because 
that  is  shutting  one  of  the  sources  of  justice."  The  same  course,  in  substance,  was 
recommended  by  Lord  Denman,  in  Reg.  v.  Arnold,  8  C.  &  P.  622.  The  omission  of 
this  course,  however,  will  not  alone  render  the  confession  inadmissible. 

2  Rex  V.  Rivers,  7  C.  &  P.  177  ;  Rex  v.  Smith,  1  Stark.  242  ;  Harman's  Case,  6  Pa. 
Law  Journ.  120.  But  an  examination,  by  way  of  question  and  answer,  is  now  held 
good,  if  it  appears  free  from  any  other  objection.  Rex  v.  Ellis,  Ry.  &JL  432  ;  2  Stark. 
Evid.  29,  n.  [g)  ;  though  formerly  it  was  held  otherwise,  in  Wilson's  Case,  Holt,  .597. 
See  ace.  Jones's  Case,  2  Russ.  658,  n.  ;  Roscoe's  Crim.  Evid.  44.  So,  if  the  questions 
were  put  by  a  police-officer  (Rex  v.  Thornton,  1  Moo<l.  Cr.  Cas.  27),  or  by  a  fellow- 
])risoner  (Rex  v.  Sliaw,  6  C.  &  P.  372),  they  are  not,  on  that  account,  objectionable. 
See  also  Rex  v.  Wild,  1  Mood.  Cr.  Cas.  452  ;  infra,  §  229. 

»  Bull.  N.  P.  242  ;  Hawk.  P.  C.  b.  2,  c.  46,  §  3. 
*  Rex  V.  Webb,  4  C.  &  P.  564. 

(a)  But  where  one  voluntarily  goes  be-  istrate,  does  not  exclude  the  confession, 
fore  a  magistrate  and  makes  a  confession.  Com.  v.  Clark,  130  Pa.  St.  650  ;  People  v. 
the  fact  that  he  is  first  sworu  by  the  mag-     McGloin,  91  N.  Y.  241. 


308 


LAW   OF   EVIDENCE. 


[part  II. 


and  embarrassments  of  the  prisoner's  situation  are  added  the 
danger  of  perjury,  and  the  dread  of  additional  penalties,  the 
confession  can  scarcely  be  regarded  as  voluntary ;  but,  on  the  con- 
trar}',  it  seems  to  be  made  under  the  very  influences  which  the 
law  is  particularly  solicitous  to  avoid.  But  where  the  prisoner, 
having  been  examined  as  a  witness,  in  a  prosecution  against 
another  person,  answered  questions  to  which  he  might  have  de- 
murred, as  tending  to  criminate  himself,  and  which,  therefore, 
he  was  not  bound  to  answer,  his  answers  are  deemed  voluntary, 
and,  as  such,  may  be  subsequently  used  against  himself,  for  all 
purposes;^  though  where  his  answers  are  compulsory,  and  under 
the  peril  of  punishment  for  contempt,  they  are  not  received.^  (6) 

6  2  Stark.  Evid.  28  ;  Wheater's  Case,  2  Lew.  Cr.  Cas.  157  ;  s.  c.  2  Mood.  Cr.  Cas. 
45  ;  Joy  on  Confessions,  &c.,  ])p.  62-66  ;  Hawaith's  Case,  Roscoe's  Crim.  Evid.  45  ; 
Rex  r.  Tubby,  5  C.  &  P.  530,  cited  and  agreed  in  Rex  v.  Lewis,  6  C.  &  P.  161  ;  Rex 
V.  Walker,  cited  by  Gurney,  B.,  in  the  same  case.  But  see  Rex  v.  Davis,  6  C.  &  P. 
177,  contra. 

6  Supra,  §  193,  n.  ;  infra,  §  451  ;  Reg.  v.  Garbett,  2  C.  &  K.  474.  But  where  one 
was  examined  before  tlie  grand  jury  as  a  witness,  on  a  comidaint  against  another  per- 
son, and  was  afterwards  himself  indicted  for  that  same  offence,  it  was  held  that  his 
testimony  before  the  grand  jury  was  admissible  in  evidence  against  him.  State  v. 
Broughtou,  7  Ired.  96. 


(b)  It  has  been  held  that  where  sus- 
picion pointed  strongly  towards  a  man  as 
guilty  of  a  crime,  and  he,  knowing  himself 
to  be  so  suspected,  and  to  be  in  immediate 
danger  of  arrest,  went  with  the  officers  be- 
fore a  magistrate,  and  there  was  put  on 
oath  and  turned  informer,  and  testified  so  as 
to  implicate  others,  his  answers  to  the  ques- 
tions of  the  magistrate  were  inadmissible 
against  him.  Reg.  v.  Gillis,  11  Cox,  C.  C. 
69.  In  such  a  case,  the  person  is  substan- 
tially in  the  position  of  one  accused  of  a 
crime,  and  should  be  entitled  to  the  same 
protection.  The  rule  in  the  United  States, 
however,  seems  to  be  that  if  the  ])erson 
testifying  is  not  under  arrest,  though  he 
may  be  under  great  suspicion  at  the  time, 
and  may  be  arrested  after  the  examination, 
yet  his  testimony  given  under  oath  is  ad- 
missible ;  but  if  he  is  actually  under  arrest, 
though  it  may  be  without  a  warrant,  his 
testimony  is  inadmissible.  Teacbout  v. 
People,  41  X.  Y.  8  ;  Hendricksou  v.  Peo- 
ple, 10  N.  Y.  13  ;  People  r.  McMahon,  15 
N.  Y.  384.  The  rulings  in  these  cases  were 
discussed  in  a  later  case  in  New  York,  Peo- 
ple V.  Mondon,  103  N.  Y.  214.  In  this 
case,  the  question  arose  upon  the  admissi- 
bility in  evidence,  upon  the  trial  of  the 
prisoner,  of  statements  alleged  to  have  been 
made  by  him  on  his  exanunation  under 
oath  at  the  coroner's  inquest,  held  upon 
the  body  of  the  deceased  after  it  had  been 


found,  which  was  a  considerable  time  sub- 
sequent to  the  killing.  After  the  finding 
of  the  body  of  tlie  deceased,  the  defendant 
was  arrested  without  wan-ant,  as  the  sus- 
pected murderer.  While  he  was  thus  in 
custody,  the  coroner  impanelled  a  jury  and 
held  an  inquest,  and  the  prisoner  was  ex- 
amined by  the  district  attorney  and  by 
the  coroner.  The  prisoner  was  an  igno- 
rant Italian  laborer,  unfamiliar  with  the 
English  language.  He  was  unattended  by 
counsel,  and  was  not  in  any  manner  informed 
of  his  rights,  or  that  he  was  not  bound  to 
answer  questions  tending  to  criminate 
him.  He  was  twice  examined  ;  on  the 
first  occasion  the  examination  was  taken 
by  questions  put  either  by  the  district  at- 
torney or  by  the  coroner,  and  the  result 
written  down  by  the  coroner,  who  then 
read  the  evidence  over  to  him,  line  by  line, 
and  asked  him  if  he  understood  it,  and  if 
it  was  the  truth,  and  he  said  it  was,  and 
the  coroner  then  re-swore  him  to  the  depo- 
sition. At  the  trial  of  the  indictment,  the 
coroner  was  asked  by  the  State  various 
questions  as  to  what  the  defendant  had 
stated  at  the  coroner's  in(|uest,  as  to  his 
having  been  on  the  ground  where  the  body 
of  the  deceased  was  found,  as  to  where  he 
had  last  seen  the  deceased  alive,  as  to  where 
deceased  was  then  going,  whether  he  was 
alone,  as  to  the  whereabouts  of  the  defen- 
dant on  the  day  the  deceased  disappeared, 


CHAP.    XII.] 


OF   CONFESSIONS. 


309 


§  226.  Same  subject.  Thus,  also,  where  several  persons,  among 
whom  was  the  prisoner,  were  summoned  before  a  committing 
magistrate  upon  an  investigation  touching  a  felony,  there  being 
at  that  time  no  specific  charge  against  any  person;  and  the  pris- 
oner, being  sworn  with  the  others,  made  a  statement,  and  at  the 


as  to   threats  made  by  deceased   to  have 
the  defeinhuit   arrested  tor  iiiariying   the 
daughter  of  deceased  while  having  another 
wife  living,  and  other  questions  tending  to 
establish  tlie  theory  of  the  prosecution  as 
to  the  motive  of  the  defendant,  in  commit- 
ting tile  murder.     Some  of  the  statements 
of  the  prisoner  on  his  examination,  as  tes- 
tified  to   by   the   coroner,   confirmed   the 
theory  of  the  prosecution  as  to  the  hostile 
feeling  between  the  prisoner  and  the  de- 
ceased, and  the  quarrels  which  had  taken 
place  between  tliem,  but  the  others  were 
denials  of  implicating  circumstances.     The 
deposition  taken  by  tiie  coroner,  as  before 
stated,  was  not  offered  in  evidence,  but  the 
coroner  in  giving  his  testimony,  referred  to 
it  to  refresh  his  recollection  with  respect  to 
the  testimony  given  by  the  defendant  on 
the  inquest.     The  court  held  that  the  evi- 
dence  of    the    prisoner's    confession    was 
inadmissible,  and  discussed  the  case  as  fol- 
lows :    "It  thus  appears  that  when    the 
prisoner  was  called  upon  to  make  his  state- 
ments on  oath  before  the  coroner,  he  stood 
in  the  attitude  of  an  accused  person,  and 
was  required  to  answer  for  himself,  as  a 
party,  and  not  as  a  mere  witness  to  aid  the 
coroner  in  investigating  the  cause  of  the 
death  of  the  deceased.     The  cause  of  the 
death  was  evident.     The    body  had  been 
examined,    with    the   marks    of    violence 
plainly  apparent ;    the  braised  head,  the 
fractured  skull,  and  broken  club  lying  near 
it   with   hair   still  adhering  to  it."  .  .  . 
"  The  prisoner  occupied  the  position  of  a 
person  accused  of  crime,  and  his  situation 
was  similar  to  that  of  such  a  person  before 
examining    magistrate,   and  although  the 
tribunal  might  be  diff(U-ent,  yet,  upon  prin- 
ciple, his  rights  would  be  the  same  in  both 
cases."  .  .  .    "There    has   been    no   case 
overruling  the  McMahon  Case."    The  court 
then  proceeded  to  show  the  difference  be- 
tween the  case  at  bar  and  the  case  of  Peo- 
ple V.   McGloin,   91  N.  Y.  241,  and  then 
continues,  "The   three  cases  which  have 
been  cited,  —  the   Hendrickson   Case,  the 
McMahon  Case,  and  the  Teachout  Case,  — 
draw  the  line  sharply,  and  define  clearly 
in  what  cases  the  testimony  of  a  witness 
examined  before  a  coroner's  inquest  can  be 
used  on  his  subsequent  trial,  and  in  what 
cases  it  cannot.     When  a  coroner's  inquest 
is  held  before  it  has  been  ascertained  that 


a  crime  has  been  committed,  or  before  any 
person  has  been  arrested  charged  with  the 
criuie,  and  a  witness  is  called  and  sworn  be- 
fore the  coroner's  jury,  the  testimony  of  that 
witness,  should  he  afterwards  he 'charged 
with  the  crime,  may  be  used  against  him 
on  his  trial,  and  the  mere  fact  that  at  the 
time  of  his  examination,  he  was  aware  that 
a  crime  was  suspected,  and  that  lie  was 
suspected  of  being  the  criminal,  will  not 
j)revent  his  being  regarded  as  a  mere  wit- 
ness, whose  testimony  may  be  afterwards 
given  in  evidence  against  himself.  If  he 
desires  to  protect  himself,  he  must  claim 
his  privilege.  But  if,  at  the  time  of  his 
examination,  it  appears  that  a  crime  has 
been  committed,  and  that  he  is  in  custody 
as  the  supposed  criminal,  he  is  not  regarded 
merely  as  a  witness,  but  as  a  party  accused, 
called  before  a  tribunal  vested  with  power 
to  investigate  preliminarily  the  question  of 
his  guilt,  and  he  is  to  be  treated  in  the 
same  manner  as  if  brought  before  a  com- 
mitting magistrate,  and  an  examination 
not  taken  in  conformity  with  the  statute, 
cannot  be  used  against  him  on  his  trial  for 
the  offence." 

The  rule  is  laid  down  as  follows  in  State 
V.  Garvey,  25  La.  An.  191  :  "  A  clear  and 
well-marked  distinction  is  made  between 
the  effects  of  statements  made  by  a  party 
under  oath  as  a  witness  in  a  criminal  pro- 
ceeding and  the  statements  under  oath  by 
an  accused  party.  In  the  first  case,  what- 
ever the  witness  may  state  tending  to 
criminate  himself  in  regard  to  the  accusa- 
tion about  which  he  testifies  may  be  in- 
troduced as  evidence  against  him  in  a 
subsequent  prosecution  of  himself  for  the 
same  offence.  But  it  seems  well  settled 
that  the  declarations  of  an  accused  party 
under  oath  are  not  to  be  held  voluntary, 
and  consequently  are  not  admissible  in 
evidence."  People  v.  Gibbons,  43  Cal.  557. 
Where,  however,  by  statute,  a  ])risoner 
may  testify  on  his  own  behalf  in  all  crimi- 
nal jiroceedings  if  he  desires,  his  testimony 
taken  under  oath  at  the  preliminary  exam- 
ination, if  it  appears  to  have  been  freely, 
given,  without  compulsion  or  promi.se,  is 
admissible  as  a  confession.  People  v.  Kel- 
ley,  47  Cal.  125.  The  examination  is 
never  admissible  in  favor  of  the  prisoner. 
State  V.  Vandergraff,  23  La.  An.  96. 


SIO  LAW   OF    EVIDEXS^CE.  [PART  II. 

conclusion  of  the  examination  he  was  committed  for  trial ;  it 
was  held,  that  the  statement  so  made  was  not  admissible  in  evi- 
dence against  the  prisoner.*  This  case  may  seem,  at  the  first 
view,  to  be  at  variance  with  what  has  been  just  stated  as  the 
general  principle,  in  regard  to  testimony  given  in  another  case; 
but  the  difference  lies  in  the  different  natures  of  the  two  pro- 
ceedings. In  the  former  case,  the  mind  of  the  witness  is  not 
disturbed  by  a  criminal  charge,  and,  moreover,  he  is  generally 
aided  and  protected  by  the  presence  of  the  counsel  in  the  cause; 
but  in  the  latter  case,  being  a  prisoner,  subjected  to  an  inquisi- 
torial examination,  and  himself  at  least  in  danger  of  an  accu- 
sation, his  mind  is  brought  under  the  full  influence  of  those 
disturbing  forces  against  which  it  is  the  policy  of  the  law  to 
protect  him.^ 

§  227.  Examination  conclusive.  As  the  statutes  require  that  the 
magistrate  shall  reduce  to  writing  the  whole  examination,  or  so 
much  thereof  as  shall  be  material,  the  law  conclusively  jyresumes, 
that,  if  anything  was  taken  down  in  writing,  the  magistrate  per- 
formed all  his  duty  by  taking  down  all  that  was  material.  ^  In 
such  case,  no  parol  evidence  of  what  the  prisoner  may  have  said 
on  that  occasion  can  be  received. ^  But  if  it  is  shown  that  the 
examination  was  not  reduced  to  writing;  or  if  the  written  ex- 
amination is  wholly  inadmissible,  by  reason  of  irregularity ;  parol 
evidence  is  admissible  to  prove  what  he  voluntarily  disclosed.^  (a) 

*  Rex  V.  Lewis,  6  C.  &  P.  161,  per  Giiraey,  B.  ;  Reg.  v.  Wheeley,  8  C.  &  P.  250  ; 
Reg.  V.  Owen,  9  C.  &  P.  238. 

^  It  has  been  thought,  on  the  authority  of  Britton's  Case,  1  M.  &  Rob.  297,  that 
the  balance-sheet  of  a  bankrupt,  rendered  in  his  examination  under  the  comnjission, 
was  not  admissible  in  evidence  against  him  on  a  subsequent  criminal  charge  because  it 
was  rendered  upon  compulsion.  But  the  ground  of  this  decision  was  afterwards 
declared  by  the  learned  judjre  who  pronounced  it,  to  be  only  this,  that  there  was  no 
previous  evidence  of  the  issuing  of  the  commission  ;  and,  therefore,  no  foundation  had 
been  laid  for  introducing  the  balance-sheet  at  all.  See  Wheater's  Case,  2  Mood.  Cr. 
Cas.  45,  51. 

1  Mr.  Joy,  in  his  Treatise  on  Confessions,  &c.,  pp.  89-92,  237,  dissents  from  this 
proposition,  so  far  as  regards  the  conclusive  character  of  the  presumption  ;  which,  he 
thinks,  is  neither  "supported  by  the  authorities,"  nor  "reconcilable  with  the  object 
with  which  examinations  are  taken."  See  supra,  §  224,  n.  But  upon  a  careful  re- 
view of  the  authorities,  and  with  deference  to  the  opinion  of  that  learned  writer,  I  am 
constrained  to  leave  the  text  unaltered.     See  infra,  §  275-277. 

2  Rex  V.  Weller,  2  Car.  &  Kir.  223.  Whatever  the  prisoner  voluntarily  said,  re- 
specting the  particular  felony  under  examination,  .should  be  taken  down,  but  not  that 
which  relates  to  another  matter.     lb.     And  see  Reg.  v.  Butler,  2  Car.  &  Kir.  221. 

3  Piex  V.  Fearshire,  1  Leach's  Cr.  Cas.  240  ;  Rex  v.  Jacobs,  Id.  347  ;  Irwin's  Case, 
1  Hayw.  112  ;  Rex  v.  Bell,  5  C.  &  P.  162  ;  Rex  v.  Reed,  1  M.  &  M.  403  ;  Phillips  v. 
Wimbum,  4  C.  &  P.  273.  If  the  magistrate  returns,  that  the  prisoner  "declined  to 
say  anything,"  parol  evidence  of  .statements  made  by  him  in  the  magistrate's  presence, 
at  the  time  of  the  examination,  is  not  admis.sible.  Rex  v.  Walter,  7  C.  &  P.  267.  See 
also  Rex  v.  Rivers,  Id.  177  ;  Reg.  v.  Morse  et  al.,  8  C.  &;  P.  605  ;  Leach  v.  Simpson>  7 

(a)  State  v.  Vincent,  1  Houst.  C.  C.(Del.)  11;  State  v.  Parish,  Busb.  Law,  239. 


CHAP.   XII.]  OF   CONFESSIONS.  311 

And  if  it  remains  uncertain  whether  it  was  reduced  to  writing  by 
the  magistrate  or  not,  it  will  not  be  presumed  that  he  did  his 
duty,  and  oral  evidence  will  be  rejected.*  A  written  examination, 
however,  will  not  exclude  parol  evidence  of  a  confession  ])reviously 
and  extrajudicially  made;^  nor  of  something  incidentally  said 
by  the  prisoner  during  his  examination,  but  not  taken  down  by 
the  magistrate,  provided  it  formed  no  part  of  the  judicial  inquiry, 
so  as  to  make  it  the  duty  of  the  magistrate  to  take  it  down.^  So 
where  the  prisoner  was  charged  with  several  larcenies,  and  the 
magistrate  took  his  confession  in  regard  to  the  property  of  A, 
but  omitted  to  write  down  what  he  confessed  as  to  the  goods  of 
B,  not  remembering  to  have  heard  anything  said  respecting  them, 
it  was  held  that  parol  evidence  of  the  latter  confession,  being 
precise  and  distinct,  was  properly  admitted.^ 

§  228.  Prisoner's  signature  not  necessary.  It  has  already  been 
stated,  that  the  signature  of  the  prisoner  is  not  necessary  to  the 
admissibility  of  his  examination,  though  it  is  usually  obtained. 
But  where  it  has  been  requested  agreeably  to  the  usage,  and  is 
absolutely  refused  by  the  prisoner,  the  examination  has  been  held 
inadmissible,  on  the  ground  that  it  was  to  be  considered  as  in- 
complete, and  not  a  deliberate  and  distinct  confession.^  Yet 
where,  in  a  similar  case,  the  prisoner,  on  being  required  to  sign 
the  document,  said,  "  it  is  all  true  enough ;  but  he  would  rather 
decline  signing  it,"  the  examination  was  held  complete,  and  was 
accordingly  admitted.  ^  And  in  the  former  case,  which,  however, 
is  not  easily  reconcilable  with  those  statutes,  which  require  noth- 
ing more  than  the  act  of  the  magistrate,  though  the  examination 
is  excluded,  yet  parol  evidence  of  what  the  prisoner  voluntarily 

Dowl.  513.     Upon  the  same  principle,  where,  on  a  ]>reliminary  hearing  of  a  case,  the 
magistrate's  clerk  wrote  down  what  a  witness  said,  but  the  writing  was  not  signed,  and 
therefore  was  inadmissible,  oral  evidence  was  held  admissible  to  prove  what  the  wit- 
ness testified.     Jeans  v.  AVheedon,  2  M.  &  Rob.  486. 
*  Hiiixman's  Case,  1  Leach's  Cr.  Cas.  349,  n. 

5  Rex  V.  Carty,  McNally's  Evid.  p.  45. 

6  Moore's  Case,  Roscoe's  Crim.  Evid.  45,  per  Parke,  J.  ;  Rex  v.  Spilsbury,  7  C.  & 
P.  188;  Malony's  Case,  Id.  (otherwise  Mulvey's  Case,  Joy  on  Confessions,  &o.,  p.  238), 
per  Littledale,  J.  In  Rowland  v.  Ashby,  Ry.  &  M.  231,  Mr.  Justice  Best  was  of 
opinion  that,  "upon  char  and  satisfactory  evidence,  it  would  be  admissible  to  prove 
something  said  by  a  prisoner,  beyond  what  was  taken  down  by  the  committing 
iiin.c'"isti'iitt3.  ' 

°  Harris's  Case,  1  Mood.  Cr.  Cas.  338.  See  2  Phil.  Erid.  84,  n.,  where  the  learned 
author  has  reviewed  this  case,  and  limited  its  application  to  confessions  of  other  offences 
than  the  one  for  which  the  prisoner  was  on  trial.  But  the  case  is  more  fully  stated, 
and  the  view  of  Mr.  Phillips  dissented  from,  in  2  Russell  on  Crimes,  pp.  876-878,  n. 
by  Mr.  Greaves.     See  also  Joy  on  Confessions,  pp.  89-93. 

1  Rex  V.  Telicote,  2  Stark.  483;  Bennet's  Case,  2  Leach's  Cr.  Cas.  627,  n.  ;  Rex  v. 
Foster,  1  Lewin's  Cr.  Cas.  46  ;  Rex  v.  Hirst,  Id. 

2  Lambe's  Case,  2  Leach's  Cr.  Cas.  625. 


312  LAW   OP   EVIDENCE.  [PART   II. 

said  is  admissible.  For  though,  as  we  have  previously  observed, ^ 
in  certain  cases  where  the  examination  is  rejected,  parol  evi- 
dence of  what  was  said  on  the  same  occasion  is  not  received,  yet 
the  reason  is,  that  in  those  cases  the  confession  was  not  volun- 
tary; whereas,  in  the  case  now  stated,  the  confession  is  deemed 
voluntary,  but  the  examination  only  is  incomplete.*  And  wher- 
ever the  examination  is  rejected  as  documentary  evidence,  for 
informality,  it  may  still  be  used  as  a  writing,  to  refresh  the 
memory  of  the  witness  who  wrote  it,  when  testifying  to  what  the 
prisoner  voluntarily  confessed  upon  that  occasion.^ 

§  229.  What  inducements  do  not  vitiate.  Though  it  is  necessary 
to  the  admissibility  of  a  confession  that  it  should  have  been  vol- 
untarily made,  that  is,  that  it  should  have  been  made,  as  before 
shown,  without  the  appliances  of  hope  or  fear  from  persons  hav- 
ing authority,  yet  it  is  not  necessary/  that  it  should  have  been  the 
prisoner's  own  spontaneous  act.  It  will  be  received,  though  it 
were  induced  by  spiritual  exhortations^  whether  of  a  clergyman,^ 
or  of  any  other  person ;  ^  by  a  solemn  promise  of  secrecy,  (a)  even 
confirmed  by  an  oath  ;3  or  by  reason  of  the  prisoner's  having  been 
made  drunken;  *  or  by  a  promise  of  some  collateral  benefit  or  boon, 

8  Supra,  §  225. 

*  Thomas's  Case,  2  Leach's  Cr.  Cas.  727  ;  Dewhurst's  Case,  1  Lewin's  Cr.  Cas.  47  ; 
Eex  V.  Swatkins,  4  C.  &  P.  548;  Rex  v.  Reed,  1  M.  &  M.  403. 

5  Layer's  Case,  16  Howell's  St.  Tr.  215  ;  Rex  v.  Swatkins,  4  C.  &  P.  548,  and  n.  (a)  ; 
Rex  V.  Tarrant,  6  C.  &  P.  182  ;  Rex  v.  Pressly,  Id.  183  ;  suyra,  §  90 ;  infra,  §  436. 

1  Rex  V.  Gilham,  1  Mood.  Cr,  Cas.  186,  more  fully  reported  in  Joy  on  Confessions, 
&c.,  ])p.  52-56  ;  Commonwealth  v.  Drake,  15  Mass.  161.  In  the  Roman  law  it  is 
otherwise  ;  penitential  confessions  to  the  priest  being  encouraged,  for  the  relief  of  the 
conscience,  and  the  priest  being  bound  to  secrecy  by  the  peril  of  punishment.  "  Confes- 
sio  coram  sacerdote,  in  pcenitentia  facta,  non  probat  in  judicio;  quia  censet.ur  facta  coram 
Deo ;  inio,  si  sacerdos  earn  enunciat,  incidit  in  poenam."  Mascardus,  De  Probat.  vol. 
i.  Concl.  377.  It  was  lawful,  however,  for  the  priest  to  testify  in  such  cases  to  the  fact 
that  the  party  had  made  a  j)enitential  confession  to  him,  as  the  Church  requires,  and 
that  he  had  enjoined  penance  upon  him  ;  and,  with  the  express  consent  of  the  penitent, 
he  might  lawfully  testify  to  the  substance  of  the  confession  itself.  lb.  See  further, 
infra,  §  247. 

2  Rex  V.  Wild,  1  Mood.  Cr.  Cas.  452  ;  Rex  v.  Court,  7  C.  &  P.  486  ;  Joy  on  Con- 
fessions, &c.,  pp.  49,  51. 

8  Rex  V.  Shaw,  6  C.  &  P.  372  ;  Commonwealth  v.  Knapp,  9  Pick.  496,  500-510. 
So,  if  it  was  overheard,  whether  said  to  himself  or  to  another.  Rex  v.  Simons,  6 
C.  &  P.  540. 

*  Rex  V.  Spilsbury,  7  C.  &  P.  187. 

{a)  State  v.   Darnell,    1  Houst.   C.   C.  Lester  v.  State,  32  Ark.  727.     Confessions 

(Del.)  321.     The  fact  that  the  confession  made  in  sleep  are  inadmissible.     People  v. 

is  made  while  the  person  making  it  is  in-  Robinson,  19  Cal.  40.     The  jury  must  de- 

toxicated   may   induce   the  jury   to   give  cide  what  weight  to  give  any  confessions 

little  credit  to  the  confession,  but  it  is  not  and  the  prisoner  may  show  that  he  was  in- 

therefore  excluded.     Eskridge  v.  State,  25  sane  at  the  time  of  making  the  confessions, 

Ala.  30;  Com.  v.  Howe,  9  Gray  (Mas.s. ),  .so  as  to  weaken  their  effect  on  the  jury, 

110  ;  State  v.  Feltes.  51  Iowa,  495  ;  Jef-  though  it  will  not  exclude  them  entirely. 

ferds  V.  People,    5    Park.    C.    Rep.    547  ;  State  v.  Feltes,  51  Iowa,  495. 


CHAP.    XII.]  OP   CONFESSIONS.  3l3 

no  hope  or  favor  being  held  out  in  respect  to  the  criminal  charge 
against  him ;  ^  {b)  or  by  any  deception  practised  on  the  prisoner,  or 
false  representation  made  to  him  for  that  purpose,  provided  tliere 
is  no  reason  to  suppose  that  the  inducement  held  out  was  calcu- 
lated to  produce  any  untrue  confession,  which  is  the  main  point 
to  be  considered.^  (c)  So,  a  confession  is  admissible,  though  it 
is  elicited  by  questions,  whether  put  to  the  prisoner  by  a  magis- 
trate, officer,  or  private  pci'son ;  and  the  form  of  the  question  is 
immaterial  to  the  admissibility,  even  though  it  assumes  the 
prisoner's  guilt. '^  (J)  In  all  these  cases  the  evidence  may  be  laid 
before  the  jury,  however  little  it  may  weigh,  under  the  circum- 
stances, and  however  reprehensible  may  be  the  mode  in  which,  in 
some  of  them,  it  was  obtained.  All  persons,  except  counsellors 
and  attorneys,  are  compellable  at  common  law  to  reveal  what 
they  may  have  heard ;  and  counsellors  and  attorneys  are  excepted 
only  because  it  is  absolutely  necessary,  for  the  sake  of  their  cli- 
ents, and  of  remedial  justice,  that  communications  to  them  should 
be  protected.^  Neither  is  it  necessary  to  the  admissibility  of  any 
confession,  to  whomsoever  it  may  have  been  made,  that  it  should 
appear  that  the  prisoner  was  warned  that  what  he  said  would  be 
used  against  him.  On  the  contrary,  if  the  confession  was  vol- 
untary, it  is  sufficient,  though  it  should  appear  that  he  was  not 
so  warned.^ 

§  230.  Illegal  imprisonment.  It  has  been  thought  that  illegal 
imprisoyiment  exerted  such  influence  upon  the  mind  of  the  pris- 
oner as  to  justify  the  inference  that  his  confessions,  made  during 
its  continuance,  were  not  voluntary;  and  therefore  they  have 
been  rejected.  ^  But  this  doctrine  cannot  yet  be  considered  as 
satisfactorily  established.  ^  (a) 

6  Rex  V.  Green,  6  C.  &  P.  655  ;  Rex  v.  Lloyd,  Id.  393. 

6  Rex  V.  Deriingtoii,  2  C.  &  P.  418;  Burley's  Case,  2  Stark,  Evid.  12,  n.  See  Com- 
monwealtli  v.  Tuckcrman,  10  Gray,  173.     See  also  post,  §  254. 

^  Rex  V.  Wild,  1  Mood.  Cr.  Cas.  452  ;  Rex  v.  Thornton,  Id.  27  ;  Gibney's  Case, 
Jebb's  Cr.  Cas.  15  ;  Kerr's  Case,  8  C.  &  P.  179.  See  Joy  on  Confessions,  pp.  34-40, 
42-44  ;  Arnold's  Case,  8  C.  &  P.  622  ;  supra,  §  225,  n.  fl). 

*  Per  Patteson,  J.,  in  Rex  v.  Shaw,  6  C.  &  P.  372.  Pliysicians  and  clergymen,  by 
statutes.     Infra,  §§  247,  248  and  notes. 

8  Gibnev's  Case,  Jebb's  Cr.  Cas.  15  ;  Rex  v.  Magill,  cited  in  McNally's  Evid.  38  ; 
Reg.  V.  Arnold,  8  C.  &  P.  622  ;  Joy  on  Confessions,  pp.  45-48. 

^  Per  Holroyd,  J.,  in  Ackroyd  and  Warburton's  Case,  1  Lewiu's  Cr.  Cas.  49. 

2  Rex  V.  Thornton,  1  Mood.  Cr.  Cas.  27. 

(Jj)  State  V.  Wentworth,  37  N.  H.  196.  (c)  Com.  i-.  Hunlon,  3    Brewst.  (Pa.) 

E.  g.  that  he  shall  see  his  wife,  or   have  461. 

some  spirits,  or  have  his  handcuffs  removed  {d)   Reg.  ■z?.  Johnston,  15  Jr.  C.  L.  60  ; 

(Rex  V.  Green,  6  C.  &  P.  655;  Rex  v.  Lloyd,  Reg.  v.  Berriman,  6  Cox.  Cr.  C.  388;  Reg. 

6  C.  &  P.  393  ;   2  R.  C.  &  M.  827)  or  be  v.  Cheverton,  2  F.  &  F.  833. 

released  from  solitary  confinement,  and  be  («)  It  was  held  in  Balbo  r.  People,  19 

allowed  to  associate  with  other  prisoners.  Hun  (N.  Y. ),  424,  that  a  confession  made 

State  V.  Tatro,  50  Vt  483.  while  the  party  confessing  was  illegally 

imprisoned  was  admissible. 


314  LAW   OF   EVIDENCE.  [PART   II. 

§  231.  Information  obtained  from  the  prisoner.  The  object  of 
all  the  care  which,  as  we  have  now  seen,  is  taken  to  exclude  con- 
fessions which  were  not  voluntary,  is  to  exclude  testimony  not 
probably  true.  But  where,  in  consequence  of  the  information  ob- 
tained frojn  the  prisoner,  the  property  stolen,  or  the  instrument 
of  the  crime,  or  the  bloody  clothes  of  the  person  murdered,  or 
ani/  other  material  fact,  is  discovered,  it  is  competent  to  show  that 
such  discovery  was  made  conformably  to  the  information  given 
by  the  prisoner.  The  statement  as  to  his  knowledge  of  the  place 
where  the  property  or  other  evidence  was  to  be  found,  being  thus 
confirmed  by  the  fact,  is  proved  to  be  true,  and  not  to  have  been 
fabricated  in  consequence  of  any  inducement.  It  is  competent, 
therefore,  to  inquire  whether  the  prisoner  stated  that  the  thing 
would  be  found  by  searching  a  particular  place,  and  to  prove  that 
it  was  accordingly  so  found ;  but  it  would  not  be  competent  to 
inquire  whether  he  confessed  that  he  had  concealed  it  there.  ^  (a) 
This  limitation  of  the  rule  was  distinctly  laid  down  by  Lord 
Eldon,  who  said  that  where  the  knowledge  of  any  fact  was  ob- 
tained from  a  prisoner,  under  such  a  promise  as  excluded  the 
confession  itself  from  being  given  in  evidence,  he  should  direct 
an  acquittal,  unless  the  fact  itself  proved  would  have  been  suffi- 
cient to  warrant  a  conviction  without  any  confession  leading 
to  it.  2 

§  232.  Acts  of  the  prisoner.  If  the  prisoner  himself  produces 
the  goods  stolen,  and  delivers  them  up  to  the  prosecutor,  notwith- 
standing it  may  appear  that  this  was  done  upon  inducements  to 
confess,  held  out  by  the  latter,  there  seems  no  reason  to  reject 
the  declarations  of  the  prisoner,  contemporaneous  with  the  act  of 
delivery,  and  explanatory  of  its  character  and  design,  though 
they  may  amount  to  a  confession  of  guilt  ;3  but  whatever  he  may 
have  said  at  the  same  time,  not  qualifying  or  explaining  the  act 

1  1  Phil  Evid.  411  ;  Warickshall's  Case,  1  Leach's  Cr.  Cas.  298  ;  ilosey's  Case,  Id. 
301,  n.  ;  Commonwealth  v.  Knapp,  9  Pick.  496,  511  ;  Reg.  v.  Gould,  9  C  &  P.  364  ; 
Rex  V.  Harris,  1  Mood.  Cr.  Cas.  338.  ,  ,    ^     ^ 

2  2  East,  P.  C.  657  ;  Harvey's  Case,  Id.  658  ;  Lockhart  s  Case,  1  Leach  s  Cr.  Cas. 
430. 

3  Rex  V.  Griffiu,  Russ.  &  Ry.  151  ;  Rex  v.  Jones,  Id.  152. 

(a)  Garrard   v.   State,    50    Miss.    147;  which  is  itself  inadmissible  because  it  was 

Laros  v.  Com.,  84  Pa.  St.  200  ;   Sampson  obtained  by  inducements,  the  fact  that  the 

V.  State,  54  Ala.  241  ;   State  v.   Mortimer,  property  has  been  found  and  the  circiim- 

20  Kans.  93  ;   White  v.  State,    3   Heisk.  .stances  of  the  finding,  and  so  much  of  the 

(Tenn.)  338.     This  principle  of  the  com-  confession  as  relates  to  the  finding,  may 

mon  law  has  been  embodieil  in  the  statute  be  given  in  evidence.     Davis  v.  State,  8 

of  Texas,  in  regard  to  confessions,  and  it  is  Tex.  App.  510;  Strait  v.  State,  43  Tex. 

accordingly  held  there,  that  when  stolen  486. 
property  is  found  by  means  of  a  confession 


CHAP.    XII.]  OF    CONFESSIONS.  315 

of  delivery,  is  to  be  rejected.  And  if,  in  consequence  of  the  con- 
fession of  the  prisoner,  thus  ini})roperly  induced,  and  of  the  in- 
formation by  him  given,  the  search  for  the  property  or  person  in 
question  proves  ivholi^  inejfectual,  no  proof  of  either  will  be  re- 
ceived. The  confession  is  excluded,  because,  being  made  under 
the  influence  of  a  promise,  it  cannot  be  relied  upon;  and  the 
acts  and  information  of  the  prisoner,  under  the  same  influence, 
not  being  confirmed  by  the  finding  of  the  property  or  person,  are 
open  to  the  same  objection.  The  influence  which  may  produce 
a  groundless  confession  may  also  produce  groundless  conduct. ^ 

§  233.  Confessions  of  others.  As  to  the  prisoner's  liability  to 
be  affected  by  the  confessions  of  others,  it  may  be  remarked,  in 
general,  that  the  principle  of  the  law  in  civil  and  criminal  cases 
is  the  same.  In  civil  cases,  as  we  have  already  seen,^  when  once 
the  fact  of  agency  or  partnership  is  established,  every  act  and 
declaration  of  one,  in  furtherance  of  the  common  business,  and 
until  its  completion,  is  deemed  the  act  of  all.  And  so,  in  cases 
of  conspiracy,  riot,  or  other  crime,  perpetrated  by  several  persons, 
when  once  the  conspiracy  or  combination  is  established,  the  act  or 
declaration  of  one  conspirator  or  accomplice,  in  the  prosecution 
of  the  enterprise,  is  considered  the  act  of  all,  and  is  evidence 
against  all.^  Each  is  deemed  to  assent  to,  or  command,  what  is 
done  by  any  other,  in  furtherance  of  the  common  object.^  Thus, 
in  an  indictment  against  the  owner  of  a  ship,  for  violation  of 
the  statutes  against  the  slave-trade,  testimony  of  the  declarations 
of  the  master,  being  part  of  the  res  gestce^  connected  with  acts  in 
furtherance  of  the  voyage,  and  within  the  scope  of  his  authority, 
as  an  agent  of  the  owner,  in  the  conduct  of  the  guilty  enterprise, 
is  admissible  against  the  owner.*  But  after  the  common  enter- 
prise is  at  an  end,  whether  by  accomplishment  or  abandonment 
is  not  material,  no  one  is  permitted,  by  any  subsequent  act  or 
declaration  of  his  own,  to  affect  the  others.  His  confession, 
therefore,  subsequently  made,  even  though  by  the  plea  of  guilty, 

2  Kex  V.  Jenkins,  Russ   &  Ev.  492  ;  Reg.  v.  Hearn,  1  Car.  &  Marsh.  109. 

1  Supra,  §§  112-114,  174,  176,  177. 

2  So  is  the  Roman  law.  "Confessio  unius  non  probat  in  praejudicium  alterius  ; 
quia  alias  esset  in  manu  oonfitentis  dicere  quod  vellet,  et  sic  jus  alteri  quaesitum 
auferre,  quando  oninino  jure  proliibent;  — etiamsi  talis  confitens  esset  omni  exceptione 
major.  Sed  liniitabis,  quando  inter  partes  convenit  parere  confessioni  et  dido  unius 
alterius."     Mascard.  de  Probat.  Concl.  486,  vol.  i.  p.  409. 

3  Per  Story,  J.,  in  United  States  v.  Gooding,  12  Wheat.  469.  And  see  supra, 
§  111,  and  cases  there  cited.  American  Fur  Co.  v.  United  Stntes,  2  Peters,  358  ; 
Commonwealth  v.  Eberle,  3  S.  &  R.  9  ;  Wilbur  v.  Strickland,  1  Rawle,  458  ;  Keiten- 
bach  V.  Reiteubach,  Id.  362  ;  2  Stark.  Evid.  232-237 ;  State  v.  Soper,  4  Shepl. 
293. 

»  United  States  v.  Gooding,  12  Wheat.  460. 


316  LAW   OF   EVIDENCE.  [PART   II. 

is  not  admissible  in  evidence,  as  such,  against  any  but  himself. ^(a) 
If  it  were  made  in  the  presence  of  another,  and  addressed  to  him, 
it  might,  in  certain  circumstances,  be  receivable,  on  the  ground 
of  assent  or  implied  admission,  (b)  In  fine,  the  declarations  of  a 
conspirator  or  accomplice  are  receivable  against  his  fellows  only 
when  they  are  either  in  themselves  acts,  or  accompany  and  ex- 
])lain  acts,  for  which  the  others  are  responsible ;  but  not  when 
they  are  in  the  nature  of  narratives,  descriptions,  or  subsequent 
confessions.^  (c) 

§  234.  Agency.  The  same  principle  prevails  in  cases  of  agency. 
In  general,  no  person  is  answerable  criminally  for  the  acts  of  his 
servants  or  agents,  whether  he  be  the  prosecutor  or  the  accused, 
unless  a  criminal  design  is  brought  home  to  him.  The  act  of  the 
agent  or  servant  may  be  shown  in  evidence  as  proof  that  such  an 
act  was  so  done;  for  a  fact  must  be  established  by  the  same  evi- 
dence, whether  it  is  to  be  followed  by  a  criminal  or  civil  conse- 
quence ;  but  it  is  a  totally  different  question,  in  the  consideration 
of  criminal  as  distinguished  from  civil  justice,  how  the  principal 
may  be  affected  by  the  fact,  when  so  established.  ^  Where  it  was 
proposed  to  show  that  an  agent  of  the  prosecutor,  not  called  as  a 
witness,  offered  a  bribe  to  a  witness,  who  also  was  not  called,  the 
evidence  was  held  inadmissible ;  though  the  general  doctrine,  as 
above  stated,  was  recognized.  ^ 

6  Rex  V.  Turner,  1  Mood.  Cr.  Cas.  347  ;  Rex  v.  Appleby,  3  Stark.  33.  And  see 
Melen  v.  Andrews,  1  M.  &  M.  336,  per  Parke,  J.  ;  Reg.  v.  Hinks,  1  Den.  Cr.  Cas.  84  ; 
1  Phil.  Evid.  199  (9th  ed.);  Reg.  v.  Blake,  6  Q.  B.  126. 

6  1  Phil,  on  Evid.  414  ;  4  Hawk.  P.  C.  b.  2,  c.  46,  §  34  ;  Tongs  Case,  Sir  .J. 
Kelyng's  R.  18,  5th  Res.  In  a  case  of  piracy,  where  the  persons  who  made  the  con- 
fession's were  not  identified,  but  the  evidence  was  only  that  some  did  confess,  it  was 
heid  that,  though  such  confessions  could  not  be  applied  to  any  one  of  tlie  prisoners,  as 
proof  of  his  personal  guilt,  yet  the  jury  iniglit  consider  them,  so  far  as  they  went,  to 
identify  the  piratical  vessel.     United  States  v.  Gibert,  2  Sumn.  19  ;   State  v.  Thibeau, 

30   Vt.    100.  ,      ^  r,        n      .     T^- 

1  Lord  Melville's  Case,  29  Howell's  St.  Tr.  764  ;  The  Queen  s  Case,  2  Brod.  &  Bing. 
306,  307  ;  supra,  §170.  ,„      ,         ,      xi.  n 

2  The  Queen's  Case,  2  Brod.  &  Bing.  302,  306-309.  To  the  rule,  thus  generally 
laid  down,  tliere  is  an  apparent  exception,  in  the  case  of  the  proprietor  of  a  newspaper, 
who  is,  prima  facie,  criminally  responsible  for  any  libel  it  contains,  though  inserted 
by  his  agent  or  servant  without  his  knowledge.     But  Lord  Tenterden  considered  this 

(a)  State  v.  Weasel,  30  La.  An.  Ft.  II.  made,  and,  in  accordance  with  it,  property 

919  •  Spencer  v.  State,  31  Tex.  64  ;  Com.  stolen  has  been  found,  it  seems  to  be  the 

V.  Thompson,  99  Mass.  444 ;  Ake  v.  State,  rule  that  this  fact  of  the  finding  and  so 

30  Tex.  466.  n;uch   of  the   confession  as  relates   to   it 

(h)  So,  where  statements  are  made  by  may  be  given  in  evidence  against  all  the 

one  of  two  jointly  charged  with  an  offence,  participcs  criminis.     Zumwalt  v.  State,  5 

the  silence  of  the  other  and  his  failure  to  Tex.  Ap.  521. 

make  any  explanation   is  not  to  be  used  (c)  Priest  v.  State,  10  Neb.  393  ;  Gove 

against   Irm.     Com.   v.    McDermott,    123  v.   State,  58  Ala.  391  ;  State  v.  Thibeau, 

Mass.    441  ;    Com.    v.   Walker,    13   Allen  30  Vt.  100. 
(Mass.),  570.     But  if  a  confession  has  been 


CHAP.    XII.]  OF   CONFESSIONS.  817 

§  235.  Treason.  It  was  formerly  dou]>tcd  whether  the  confession 
of  the  prisoner,  indicted  for  high  treason,  could  be  received  in 
evidence,  unless  it  were  made  upon  his  arraignment,  in  open 
court,  and  in  answer  to  the  indictment;  the  statutes  on  this  sub- 
ject requiring  the  testimony  of  two  witnesses  to  some  overt  act 
of  treason.  1  But  it  was  afterwards  settled,  and  it  is  now  agreed, 
that  though,  by  those  statutes,  no  confession  could  operate  con- 
clusively, and  without  other  proof,  to  convict  the  party  of  trea- 
son, unless  it  were  judicially  made  in  open  court  upon  the 
arraignment,  yet  that,  in  all  cases,  the  confession  of  a  criminal 
might  be  given  in  evidence  against  him;  and  that  in  cases  of 
treason,  if  such  confession  be  proved  by  two  witnesses,  it  is 
proper  evidence  to  be  left  to  a  jury.^  And,  in  regard  to  collateral 
facts  which  do  not  conduce  to  the  proof  of  any  overt  acts  of 
treason,  they  may  be  proved  as  at  common  law  by  any  evidence 
competent  in  other  criminal  cases. ^ 

case  as  falling  strictly  within  the  principle  of  the  rule  ;  for  "surely,"  said  he,  "  a  per- 
son who  derives  ])roFit  from,  and  who  furnishes  means  for  carrying  on,  the  concern, 
and  entrusts  the  conduct  of  the  publication  to  one  whom  he  selects,  and  in  whom  he 
confides,  may  be  said  to  cause  to  be  published  what  actually  appears,  and  ought  to  be 
answerable,  though  you  cannot  show  that  he  was  indiTidually  concerned  in  the  partic- 
ular publication."  Rex  v.  Gutch,  1  M.  &  M.  433,  437.  See  also  Story  on  Agency, 
§§  452,  453,  455  ;  Rex  v.  Almon,  5  Burr.  2686  ;  Rex  v.  Walter,  3  Esp.  21  ;  Southwick 
V.  Stevens,  10  Johns.  443. 

1  Foster's  Disc.  1,  §  8,  pp.  232-244  ;  1  East's  P.  C.  131-183.  Under  the  Stat.  1 
Ed.  VI.  c.  12,  and  5  Ed.  VI.  c.  11,  requiring  two  witnesses  to  convict  of  treason,  it 
has  been  held  sufficient  if  one  witness  prove  one  overt  act,  and  another  prove  another, 
if  both  acts  conduce  to  the  perpetration  of  the  same  species  of  treason  charged  upon 
the  prisoner.  Lord  Stafford's  Case,  T.  Raym.  407  ;  3  St.  Tr.  204,  205  ;  1  East's  P.  C. 
129  ;  1  Burr's  Trial,  196. 

2  Francia's  Case,  1  East's  P.  C.  133-135. 

8  Smith's  Case,  Fost.  Disc.  p.  242 ;  1  East's  P.  C.  130.     See  infra,  §§  254,  255. 


318  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER   XIII. 

OP   EVIDENCE   EXCLUDED    FROM   PUBLIC   POLICY. 

§  236.  Kinds  excluded.  There  are  some  kinds  of  evidence 
which  the  law  excludes^  or  dispenses  with,  on  grounds  of  publie 
policy,  because  greater  mischiefs  would  probably  result  from  re- 
quiring or  permitting  its  admission,  than  from  wholly  rejecting 
it.  The  principle  of  this  rule  of  the  law  has  respect,  in  some 
cases,  to  the  person  testifying,  and  in  others  to  the  matters  con- 
cerning which  he  is  interrogated,  thus  including  the  case  of  the 
party  himself,  and  that  of  the  husband  or  wife  of  the  party  on 
the  one  hand,  and,  on  the  other,  the  subject  of  professional  com- 
munications, awards,  secrets  of  State,  and  some  others.  The  two 
former  of  these  belong  more  properly  to  the  head  of  the  Compe- 
tency of  Witnesses,  under  which  they  will  accordingly  be  here- 
after treated.  1  The  latter  we  shall  now  proceed  briefly  to 
consider. 

§  237.  Professional  communications.  And,  in  the  first  place,  in 
regard  to  professional  communications,  the  reason  of  public  policy, 
which  excludes  them,  applies  solely,  as  we  shall  presently  show, 
to  those  between  a  client  and  his  legal  adviser ;  and  the  rule  is 
clear  and  well  settled,  that  the  confidential  counsellor,  solicitor,  or 
attorney  of  the  party  cannot  be  compelled  {a)  to  disclose  papers 
delivered,  or  communications  made  to  him,  or  letters  or  entries 
made  by  him,  in  that  capacity.^  {h)    "  This  protection,"  said  Lord 

1  §§  326-429. 

2  In  Greenough  v.  Gaskell,  1  My.  &  K.  101.  In  this  decision,  the  Lord  Chancellor 
was  assisted  by  consultation  with  Lord  Lyndhurst,  Tindal,  C.  J.,  and  Parke,  J.,  4  B.  & 

(a)  Or  permitted,  without  the  consent  1  Phil.  476.  This  rule  of  privilege  ha.? 
of  his  client.  Stephen,  Dig.  of  Evid.  art.  been  recognized  in  most  States  by  statu- 
115.  In  Georgia,  contrary  to  the  general  tory  enactments,  which  fref|iieiitly  also 
rule,  the  privilege  is  treated  as  that  of  the  enact  further  that  the  privilege  is  the 
lawyer  and  to  be  waived  by  him  at  his  privilege  of  the  client,  and  may  be  waived 
option.     Willis  v.  West,  60  Ga.  613.  by  him  but  not  by  the  attorney.     Califor- 

(b)  This  rule  applies  only  to  attorneys  nia  (Civil  Code,  sec.  1881,  cl.  2);  Colorado 
at  law,  not  in  fact.  McLaughlin  v.  Gil-  (Act  of  1883,  p.  289,  sec.  2,  cl.  2);  Georgia 
more,  1  111.  Ai)p.  563;  Holman  v.  Kimball,  (Code,  sec.  3854,  cl.  5  ;  Laws  of  1889,  ch. 
22  Vt.  555.  Moreover,  the  client  as  well  486,  p.  85,  sec.  1,  cl.  e,  &  cl.  g  ;  Indiana 
as  the  lawyer  is  protected  from  disclosing  (Rev.  Stat.  sec.  497,  cl.  3);  Minnesota 
such  communications.  Hughes  v.  Bid-  (Minn.  Stat.  (Kelley)  1891,  sec.  5094)  ; 
dulph,  4  Russ.  190  ;  Holmes  v.  Baddeley,  Missouri  (Rev.  Stat.  sec.  8925) ;  Kansas 


CHAP.    XIII.]      EVIDENCE   EXCLUDED    FROM    PUBLIC    POLICY.  319 

Chancellor  lirougham,  "is  not  qualified  by  any  reference  to  pro- 
ceedings pending,  or  in  contemplation.  If,  touching  matters  that 
come  within  the  ordinary  scope  of  professional  employment,  they 
receive  a  communication  in  their  professional  capacity,  either  from 
a  client,  or  on  his  account  and  for  his  benefit,  in  the  transaction 
of  his  business,  or,  which  amounts  to  the  same  thing,  if  they 
commit  to  paper  in  the  course  of  their  employment  on  his  behalf 
matters  which  they  know  only  through  their  professional  relation 
to  the  client,  they  are  not  only  justified  in  withholding  such  mat- 
ters, but  bound  to  withhold  them,  and  will  not  be  compelled  to 
disclose  the  information,  or  produce  the  papers,  in  any  court  of 
law  or  equity,  either  as  party  or  as  witness.  "^ 

§  238.  Reason  of  the  rule.  "The  foundation  of  this  rule,"  he 
adds,  "  is  not  on  account  of  any  particular  importance  which  the 
law  attributes  to  the  business  of  legal  professors,  or  any  particu- 
lar disposition  to  afford  them  protection.  But  it  is  out  of  regard 
to  the  interests  of  justice,  which  cannot  be  upholden,  and  to  the 
administration  of  justice,  which  cannot  go  on,  without  the  aid  of 
men  skilled  in  jurisprudence,  in  the  practice  of  the  courts,  and 
in  those  matters  affecting  rights  and  obligations,  which  form  the 
subject  of  all  judicial  proceedings."  (a)     If  such  communications 

Ad.  873.  And  it  is  mentioned,  a-s  one  in  which  all  the  authorities  have  been  reviewed, 
in  2  M.  &  W.  100,  per  Lord  Abinger,  and  is  cited  in  Russell  v.  Jackson,  15  Jur.  1117, 
as  settling  the  law  on  this  subject.  See  also,  16  Jur.  30,  41-43,  where  the  cases  on 
this  subject  are  reviewed.  The  earliest  reported  case  on  this  subject  is  that  of  Berd  v. 
Lovelace,  19  Eliz.,  in  chancery,  Gary's  R.  88.  See  also  Austen  v.  Vesey,  Id.  89  ; 
Kelway  v.  Kelway,  Id.  127  ;  Dennis  v.  Codrington,  Id.  143  ;  all  of  which  are  stated 
at  large  by  Mr.  Metcalf,  in  his  notes  to  2  Stark.  Evid.  395  (1st  Am.  Ed.).  See  also 
12  Yin.  Abr.  Evid.  B,  a  ;  Wilson  v.  Rastall,  4  T.  R.  753  ;  Rex  v.  Withers,  2  Campb. 
578  ;  Wilson  v.  Troup,  7  Johns,  ch.  25  ;  2  Cowen,  195 ;  Mills  v.  Oddy,  6  C.  &  P.  728  ; 
Anon.,  8  Mass.  370  ;  Walker  v.  Wildman,  6  Madd.  47  ;  Story's  Eq.  PI.  4.^8-461  ; 
Jackson  v.  Burtis,  14  Johns.  391  ;  Foster  v.  Hall,  12  Pick.  89  ;  Chirac  v.  Reinicker, 
11  Wheat.  295  ;  Rex  v.  Shaw,  6  C.  &  P.  372  ;  Granger  v.  Warrington,  3  Gilm.  299  ; 
Wheeler  v.  Hill,  4  Shepl.  329. 

2  Greenough  v.  Gaskell,  1  My.  &  K.  102,  103.  The  privilege  is  held  to  extend  to 
every  communication  made  by  a  client  to  his  attorney,  though  made  under  a  mistaken 
belief  of  its  being  necessary  to  his  case.  Cleave  v.  Jones,  8  Eng.  Law  &  Ei|.  554,  7 
Exch.  421,  per  Martin,  B.     And  see  Aiken  v.  Kilburne,  14  Shepl.  252. 

(Gen.    Stat.   sec.   4418,  cl.    4)  ;    Virginia  reason  that  they  are  made  confidentially  ; 

(Rev.    Civ.   Code,    Sec.   2283)  ;   Nebraska  for  no  such  protection  is  given  to  confi- 

(CodH,  p.  672,  sec.  328,  cl.  4  ;    .sec.  333  ;  dential  communications  made  to  members 

sec.  334)  ;    New  York  (Rev.  Stat.   Birds-  of  other  professions.     'The  principle  of  the 

eyes'  Ed.,  p.  1015,  see.  9  ;  Code,  sec.  835  rule  which  applies  to  attorneys  and  coun- 

et   seq.);    Ohio    (Rev.   Stat.   sec.    5241);  sel,'  says  Chief  Justice  Shaw,  in  Hatton  ?>. 

Pennsylvania  (Laws  of  1887,  ch.  89,  sec.  Robinson,  14  Pick.  422,  'is  that  so  nume- 

2,  cl.  d)  ;    Wisconsin  (Annot.   Stat.  sec.  rous  and  compiex  are  the  laws  by  which  the 

4076).  rights  and  duties  of  citizens  are  governed, 

(a)  "  It  is  to  be  remembered,  whenever  so  important  is  it  they  should  be  permitted 

a  question  of  this  kind  arises,  that  commu-  to  avail  themselves  of  llie  superior^ skill  ami 

nications  to  attorneys  and  counsel  are  not  learning  of  those  who  are  sanctioned    by 

protected  from  disclosure  in  court  for  the  the  law  as  its  ministers  and  expounders, 


320  LAW    OF    EV^IDENCE.  [PART  li. 

were  not  protected,  no  man,  as  the  same  learned  judge  remarked 
in  another  case,  would  dare  to  consult  a  professional  adviser, 
with  a  view  to  his  defence,  or  to  the  enforcement  of  his  rights ; 
and  no  man  could  safely  come  into  a  court,  either  to  obtain 
redress,  or  to  defend  himself.^ (6) 

§  239.  Communications  to  legal  adviser  only  protected.  In  re- 
gard to  the  persons  to  whom  the  communications  must  have  been 
made  in  order  to  be  thus  protected,  they  must  have  been  made  to 
the  counsel,  attorney,  or  solicitor,  acting,  for  the  time  being,  in 
the  character  of  legal  adviser^  For  the  reason  of  the  rule,  hav- 
ing respect  solely  to  the  free  and  unembarrassed  administration 
of  justice,  and  to  security  in  the  enjoyment  of  civil  rights,  does 
not  extend  to  things  confidentially  communicated  to  other  per- 
sons, nor  even  to  those  which  come  to  the  knowledge  of  counsel, 

2  Bolton  V.  Corporation  of  Liverpool,  1  My.  &  K.  94,  9o.  "  This  rule  seems  to  be 
correlative  with  that  which  governs  the  summary  jurisdiction  of  the  courts  over  attor- 
neys. In  Ex  parte  Aitkin  {4  B.  &  Aid.  49  ;  see  also  Ex  parte  Yeatman,  4  Dowl.  P.  C. 
309),  that  rule  is  laid  down  thus  ;  '  Where  an  attorney  is  employed  in  a  matter  wholly 
unconnected  with  his  professional  character,  the  court  will  not  interfere  in  a  summary 
way  to  compel  him  to  execute  faithfully  the  trust  reposed  in  him.  But  where  the 
employment  is  so  connected  with  his  jirofessional  character  as  to  afford  a  presumption 
that  his  character  formed  the  giound  of  his  employment  by  the  client,  there  the  court 
will  exercise  this  jurisdiction.'  So,  where  the  communication  made  relates  to  a  cir- 
cumstance so  connected  with  the  employment  as  an  attorney,  that  the  character  formed 
the  ground  of  the  communication,  it  is  privileged  from  disclosure."  Per  Alderson,  J.; 
in  Turquand  v.  Knight;  2  M.  k  W.  101.  The  Pioman  law  rejected  the  evidence  of  the 
jirocurator  and  the  advocate,  in  nearly  the  same  cases  in  which  the  common  law  holds 
them  incompetent  to  testify  ;  but  not  for  the  same  reasons  ;  the  latter  regarding  the 
general  interest  of  the  community,  as  stated  in  the  text,  while  the  former  seems  to 
consider  them  as  not  credible,  because  of  the  identity  of  their  interest,  opinions,  and 
prejudices,  with  those  of  their  clients.  Mascard.  de  Probat.  vol.  i.  Concl.  66,  vol.  iii. 
Concl.  1239  ;  P.  Farinacii  Opera,  torn.  2,  tit.  6,  Qusest.  60,  Illat.  5,  6. 

1  If  the  party  has  been  rerpiested  to  act  as  solicitor,  and  the  communication  is  made 
under  the  impression  that  the  request  has  been  acceded  to,  it  is  privileged.  Smith  v. 
Fell,  2  Curt.  667  ;  Sargent  v.  Hampden,  38  Me.  581  ;  McLellan  v.  Longfellow,  32  Id. 
494.  See  as  to  consultation  by  tlie  party's  wife,  Reg.  v,  Farley,  2  Car.  &  Kir.  313. 
One  who  is  merely  a  real-estate  broker,  agent  and  conveyancer  is  not  a  legal  adviser. 
Matthew's  Estate,  4  Amer.  liaw  Journ.  N.  s.  356. 

both  in  ascertaining  their  rights  in  the  waiver  of  this  privilege  as  to  compel  him 

country,    and     maintaining    them     most  to  disclose  such  communications.    Hemen- 

safely  in  courts,  without  publishing  those  way   v.    Smith,    28    Vt.   701  ;    Barker   v. 

facts  which   they  have   a   right   to  keep  Kuhn,  38  Iowa,  395  ;   State  v.  White,  19 

secret,  but  which  must  be  disclosed  to  a  Kan.  445  ;  Duttenhofer  v.  State,  34  Ohio 

legal  adviser  and  advocate  to  enable  him  St.  91  ;  Bigler  v.  Reyher,  43  hid.  112.    But 

successfully  to  ])erform  the  duties  of  his  in  Massachusetts  it  has  been  held  that  the 

office,  that  the  law  has  considered  it  the  party,  if  he  takes  the  stand,   waives  the 

wisest  policy  to  encourage  and  sustain  this  privilege  so  far  as  concerns  himself,  and 

confidence,  by  requiring  that  on  such  facts  must  testify   (Woburn   v.    Henshaw,  101 

the  mouth  of  the  attorney  shall  be  forever  Mass.  193)  ;  but  he  may  objeci  to  having 

sealed.'  "      By  Metcalf,  J.,  in   Barnes  v.  his  counsel  testify  to  such  matters,  even 

Harris,  7  Gushing,  576,  578.  though  he  puts  him  on   the    stand   him- 

(b)  The  fact  that   the  client,  being  a  self.    Montgomery  t'.  Pickering,  116  Mass. 

party  to  the  suit,  testities  in  his  own  be-  227. 
half,  is  generally  held  not  to  be  such  a 


CHAP.    XIII.]      EVIDENCE    EXCLUDED    FROM    PUBLIC    POLICY. 


321 


when  not  standing  in  that  relation  to  the  party.  Whether  he  be 
called  as  a  witness,  or  be  made  defendant,  and  a  discovery  sought 
from  hiln,  as  such,  by  bill  in  chancery,  whatever  he  has  learned, 
as  counsel,  solicitor,  or  attorney,  he  is  not  obliged  nor  jjcrmitted 
to  disclose.'^  And  this  protection  extends  also  to  all  the  neces- 
sary organs  of  communication  between  the  attorney  and  his  client ; 
an  interpreter^  and  an  agent^  being  considered  as  standing  in  pre- 
cisely the  same  situation  as  the  attorney  himself,  and  under  the 
same  obligation  of  secrecy.  It  extends  also  to  a  case  submitted 
to  counsel  in  ^foreign  country,  and  his  opinion  thereon.^  It  was 
formerly  thought  that  an  attorneg's  or  a  barrister's  clerk  was  not 
within  the  reason  and  exigency  of  the  rule ;  but  it  is  now  con- 
sidered otherwise,  from  the  necessity  they  are  under  to  employ 
clerks,  being  unable  to  transact  all  their  business  in  person;  and 
accordingly  clerks  are  not  compellable  to  disclose  facts,  coming 
to  their  knowledge  in  the  course  of  their  employment  in  that 
capacity,  to  which  the  attorney  or  barrister  himself  could  not  be 
interrogated.^  (a)     And  as  the  privilege  is  not  personal  to  the  at- 

2  Greenongh  v.  Gaskell,  1  My.  &  K.  98  ;  Wilson  v.  Rastall,  4  T.  R.  753. 

8  Du  Barre  v.  Livette,  Peake'sCas.  77,  explained  in  4  T.  K.  756  ;  Jackson  v.  French, 
3  Wend.  337  ;  Andrews  v.  Solomon,  1  Pet.  C.  C.  356  ;  Parker  v.  Carter,  4  Munf.  273. 

*  Parkins  v.  Hawkshaw,  2  Stark.  239  ;  Tait  on  Evid.  385  ;  Bunbnry  v.  Bunbury, 
2  Beav.  173  ;  Steele  v.  Stewart,  1  Phil.  Ch.  471  ;  Carpmael  v.  Powis,  1  Phil.  Ch.  687;. 
s.  c.  9  Beav.  16. 

s  Bunbury  v.  Banbury,  2  Beav.  173. 

6  Taylor  v.  Forster,  2  C.  P.  195,  per  Best,  J.,  cited  and  approved  in  12  Pick.  93  ; 
Rex  V.  "Upper  Boddington,  8  Dow.  &  Ry.  726,  ])er  Bayley,  J.  ;  Foote  v.  Hayne,  1  C.  & 
P.  545,  per  Abbott,  C.  J.  ;  s.  c.  R.  &  M.  165  ;  Jackson  v.  French,  3  Wend.  337  ; 
Power  V.  Kent,  1  Cohen,  211  ;  Bowman  v.  Norton,  5  C.  &  P.  177  ;  Shore  v.  Bedford, 
5  M.  &  Gr.  271  ;  Jardine  v.  Sheridan,  2  C.  &  K.  24. 

(a)   Sibley  v.   Waffle,    16    N.  Y.   App.  difficulty,"  and  he  lays  down  the  rule  in 

180  ;   Hawes  v.  State,  88  Ala.  68  ;  Lands-  regard  to  documents,  tliat  where  it  appears 

lierger  v.   Gorham,  5  Cal.  450.     How  far  the    documents   are    substantially   rough 

this  protection  is  extended  to  persons  who  notes  for  the  case,  to  be  laid  before  the 

are  not  attorneys,  but  who  are  comrauni-  legal  adviser   or  to  supply  the  proof  to  be 

cated  with  on  the  subject  of  litigations,  is  in  erted  in  the  brief,  the  discretion  of  the 

a  matter  of  some  dilticulty.      Blackburn,  Court  should  as  a  general  rule  be  to  refuse 

J.,  in  Fenuer  v.  London  &  S.  E.  Ry.  Co.,  inspection.     It  has  been  held  in   Illinois 

L.  R.  7  Q.  B.  767,  says  :     "  There  is  no  that  one  who,  not  being  called  to  the  bar, 

doubt  that  on  groundsof  public  policy  the  conducts   a   case   before  a  justice   of  the 

communications  between  a  person  and  his  peace,  is  not  within  the  protection  of  this 

solicitors  and  counsel  with  a  view  to  obtain  rule.     McLaughlin  i'.  Gilmore,  1  111.  App. 

legal  assistance  and  advice  are  ])rivileged,  563.      To  the  same  effect  is  Holman  v. 

and  so  far  as  the  communications  made  Kimball,   22  Vt.    555.     It  has  also  beea 

with  a  person  not  himself  a  solicitor  can  held  that  communications  made  while  seek- 

be  considered  as  made  with  him  as  deputy  ing  legal  advice  in  a  consultation  with  a 

to  the  solicitor,  they  are  also  privileged,  student  at  law  in  an  attorney's  office,  he 

and  this,  I  apprehend,  is  a  positive  right  not  being  the  agent  or  clerk  of  the  attor- 

of  the  client  which  the  Court  cannot  Vie-  ney  for  any  purpose,  are  not   protected, 

prive  him  of.     But  when  the  communica-  Barnes  v.  Harris,  7  Cush.  576,  578.     And 

tions  are  made  to  a  person  not  in  any  way  to  a  similar  effect  is  Schubkagel  v.  Dier- 

connected  with  the  legal  advisers  of  the  stein,  131  Pa.  St.  53. 
person,  the  question  is  one  of  much  more 

VOL.  I.  —  21 


322 


LAW   OF   EVIDENCE. 


[part  II. 


torney,  but  is  a  rule  of  law,  for  the  protection  of  the  client,  the 
executor  of  the  attorney  seems  to  be  within  the  rule,  in  regard 
to  papers  coming  to  his  hands,  as  the  personal  representative  of 
the  attorney.' (^) 

§  240.  Extent  of  the  protection.  This  protection  extends  to 
every  communication  which  the  client  makes  to  his  legal  adviser, 
for  the  purpose  ofprqfessional  advice  or  aid,  upon  the  subject  of 
his  rights  and  liabilities,^  (a)     Nor  is  it  necessary  that  any  judi- 

7  Fenwick  v.  Reed,  1  Meriv.  114,  120,  arg. 

1  This  general  rule  is  limited  to  communications  having  a  lawful  oTyect  ;  for,  if  the 
purpose  contemplated  be  a  violation  of  law,  it  has  been  deemed  not  to  be  within  the 
rule  of  privileged  communications  ;  because  it  is  not  a  solicitor's  duty  to  contrive  fraud, 
or  to  advise  his  client  as  to  the  means  of  evading  the  law.  Russell  v.  Jackson,  15  Jur. 
.1117  ;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528. 


(b)  The  decisions  upon  this  point  are 
■very  numerous  in  the  American  States. 
.It  seems  indispensable  to  the  existence  of 
the  privilege,  that  the  relation  of  counsel 
or  attorney  and  client  should  exist,  and 
that  the  communication  be  made  in  faith 
of  the  relation.  And  then  the  privilege  of 
secrecy  only  extends  to  the  parties  to  the 
relation  and  their  necessary  agents  and 
assistants.  Hence  the  privilege  does  not 
attach,  if  one  is  accidentally  present  (God- 
dard  v.  Gardner,  28  Conn.  172)  ;  or  casu- 
ally overhears  the  conversation  (Hoy  v. 
Morris,  13  Gray  (Mass.),  519)  ;  or  if  the 
iperson  be  not  a  member  of  the  profession, 
although  supposed  to  be  so  by  the  client 
(Sample  v.  Frost,  10  Iowa,  266)  ;  or  if  he 
was  acting  as  a  meresciivener,  although  of 
the  legal  profession.  De  Wolf  v.  Strader, 
26  111.  225  ;  Borum  v.  Fonts,  15  Ind.  50  ; 
Coon  V.  Swan,  30  Vt.  6.  And  the  privi- 
lege against  disclosure  extends  to  the  client 
as  mucli  and  to  the  same  extent  iis  to  his 
professional  adviser.  Hemenway  u.  Smith, 
28  Vt.  701.  Hence  counsel  may  be  com- 
pelled to  produce  any  paper  which  the 
client  might  be  required  to  do.  Andrews 
V.  Ohio  &  Miss.  R.  B.  Co.,  14  Ind.  169  ; 
Durkee  v.  Leland,  4  Vt.  612.  And  facts 
coming  to  the  knowledge  of  counsel,  with- 
out communication  from  their  clients,  by 
being  present  merely  when  a  legal  docu- 
ment is  executed  (Patten  v.  Moor,  29  N. 
H.  163),  are  not  privileged.  So,  also, 
that  the  testator  was  too  imbecile  to  make 
communications  to  counsel,  when  they 
met,  is  not  a  privileged  fact.  Daniel  v. 
Daniel,  39  Pa.  St.  191.  So  communica- 
tions made  by  the  trustee  to  counsel  in  re- 
gard to  the  trust,  are  not  privileged  from 
being  proved  by  the  counsel,  in  a  suit  be- 
tween the  cestui  que  trust  and  the  trustee 
affecting  the  trust  (Shean  i\  Philips,  1  F. 


&  F.  449)  ;  or  when  made  by  a  nominal 
party,  to  a  professional  person,  but  not 
made  piofessionally  (Allen  v.  Harrison,  30 
Vt.  219  ;  Marsh  v.  Howe,  36  Barb.  649). 
But  it  is  not  indispensable  the  communica- 
tion should  be  made  after  the  actual  re- 
tainer, provided  it  be  made  in  contidence 
of  the  professional  character,  and  with  a 
bond  fide  purpose  of  obtaining  jirofessional 
aid  and  direction.  Sargent  v.  Hampden, 
38  Me.  581.  But  a  communication  made 
to  counsel  by  two  defendants  is  not  privi- 
leged from  disclosure  in  a  subsequent  suit 
between  the  two.  Bice  v.  Rice,  14  B. 
Mon.  417. 

(a)  Gartside  v.  Outram,  26  L.  J.  Ch. 
115  ;  Chariton  v.  Coombes,  32  L.  J.  Ch. 
284.  Counsel  are  not  privileged  from  dis- 
closing facts  tending  to  establish  a  fraudu- 
lent combination  between  himself  and  his 
client,  in  order^  to  prevent  the  court  from 
compelling  the  production  of  important 
papers  (People  v.  Sheriff  of  New  York,  29 
Barb.  622),  since  neither  counsel  nor  client 
have  any  legal  right  to  resort  to  any  but 
legal  means  for  obtaining  a  decision  iu 
their  favor.  The  Queen  v.  Cox,  L.  R.  14 
Q.  B.  D.  153,  is  an  important  case  on  this 
branch  of  the  privileged  communication 
rule.  The  defendants  were  indicted  for 
conspiring  to  defraud  a  judgment  creditor 
by  executing  a  bill  of  sale.  They  were 
partners,  and  one  of  them  had  been  sued 
for  libel,  and  judgment  had  been  recorded 
against  him.  He  therefore  executed  a 
fraudulent  bill  of  sale  to  his  partner,  and 
fraudulently  put  an  end  to  tlie  partnership 
by  a  notice  specified  in  the  partnership 
articles,  but  antedated  so  as  to  precede  the 
time  of  the  judgment.  Previous  to  doing 
this  the  defendants  consulted  a  solicitor 
as  to  means  of  escaping  execution,  and  he 
informed  them  iu  reply  to  this  question, 


CHAP.    XIII.]      EVIDENCE    EXCLUDED    FROM    PUBLIC   POLICY.  323 

cial  proceedings  in  particular  should  have  been  commenced  or 
contemphited ;  it  is  enough  if  the  matter  in  hand,  like  every  other 
human  transaction,  may,  by  possibility,  become  the  subject  of 
judicial  inquiry.  "If,"  said  Lord  Chancellor  Brougham,  -'the 
privilege  were  confined  to  communications  connected  with  suits 
begun,  or  intended,  or  expected,  or  apprehended,  no  one  could 
safely  adopt  such  precautions,  as  might  eventually  render  any  ))ro- 
ceedings  successful,  or  all  proceedings  superfluous."  ^  Whether 
the  party  himself  can  be  compelled,  by  a  bill  in  chancery,  to  pro- 
duce a  case  which  he  has  laid  before  counsel,  with  the  opinion 
given  thereon,  is  not  perfectly  clear.  At  one  time  it  was  held 
by  the  House  of  Lords,  that  he  might  be  compelled  to  produce  the 
case  which  he  had  sent,  but  not  the  opinion  which  he  had  re- 
ceived. ^  This  decision,  however,  was  not  satisfactory;  and 
though  it  was  silently  followed  in  one  case,*  and  reluctantly 
submitted  to  in  another,^  yet  its  principle  has  since  been  ably 

2  1  M.  &  K.  102,  103  ;  Carpmael  v.  Powis,  9  Beav.  16  ;  1  Pliillips,  687  ;  PHuriul- 
doek  V.  Hannnond,  11  Beav.  59.  See  also  the  observations  of  the  learned  judges,  in 
Cromaok  v.  Heathcote,  2  Brod.  &  B.  4,  to  the  same  effect ;  Gresley's  Evid.  32,  33  ; 
Story's  Eq.  PI.  §  600  ;  Moore  v.  Terrell,  4  B.  &  Ad.  870  ;  Beltzhoover  v.  Blackstock, 
3  Watts,  20  ;  Taylor  v.  Blacklow,  3  Bing.  N.  C.  235  ;  Foster  v.  Hall,  12  Piek.  81»,  92, 
99,  where  the  English  decisions  on  this  s'ubject  are  fully  reviewed  by  the  learned  Chief 
Justice  ;  Doe  v.  Harris,  5  C.  &  P.  592  ;  Walker  v.  Wildman,  6  Madd.  47.  There  are 
some  decisions  which  require  that  a  suit  be  either  jiending  or  anticipated.  See  Wil- 
liams V.  Mundie,  Ry.  &  M.  34  ;  Broad  v.  Pitt,  3  C.  &  P.  518  ;  Duffin  v.  Smith,  Peake's 
Cas.  108.  But  these  are  now  overruled.  See  Pearse  v.  Pearse,  11  Jur.  52 ;  s.  c.  1  De 
Gex  &  Smale,  12.  The  law  of  Scotland  is  the  same  in  this  matter  as  that  of  England. 
Tait  on  Evid.  384. 

3  Radclille  v.  Fursman,  2  Bro.  P.  C.  514. 
*  Preston  v.  ( 'arr,  1  Y.  &  Jer.  175. 

6  Newton  v.  Beersford,  1  You.  376. 

that  a  bond  fide  sale  was  the  only  way  ;  exists.  The  authorities  are  examined  with 
that  a  sale  from  a  partner  to  another  great  care.  Greenough  v.  Gaskell,  1  My, 
would  not  do  ;  and  that  no  one  that  he  &  K.  98,  is  said  to  be  the  leading  nuthor- 
was  aware  of,  except  himself  and  his  clerks,  ity,  decided  by  Lord  Brougham.  The  cases 
knew  of  the  partnership.  The  solicitor  which  hold  that  fraud  ])revents  the  privi- 
was  produce<l  by  the  prosecution  and  the  lege  from  operating  are  FoUett  v.  Jeffer- 
defendants  claimed  that  the  communica-  eyes,  1  Sim.  N.  s.  3;  Gartside  v.  Outram, 
tion  was  privileged.  The  evidence  was  26  L.  J.  Ch.  113.  The  case  of  Queen  v. 
admitted  and  the  defendants  convicted,  Cox  was  intended  by  the  judges  to  settle 
hut  the  case  was  reserved  on  this  point,  this  question,  and  in  addition  to  estab- 
On  account  of  its  importance  the  case  was  lishing  the  rule  that  there  is  no  privilege 
argued  before  a  full  bench  of  ten  judges,  in  such  cases,  they  say  that  in  each  partic- 
and  after  consideration  Mr.  Justice  Stejjhen  ular  case  the  court  must  determine  upon 
delivered  the  opinion  of  the  court.  After  the  facts  actually  given  in  evidence  or 
stating  the  facts  the  judge  said  :  "The  proposed  to  be  given  in  evidence,  whether 
question  therefore  is  whether,  if  a  client  it  seems  probable  that  the  accused  person 
applies  to  a  legal  adviser  for  advice  in-  may  have  consulted  his  legal  adviser,  not 
tending  to  facilitate  or  to  guide  the  client  after  his  commission  of  the  crime,  for  the 
in  the  commission  of  a  crime  or  fraud,  the  legitimate  purpose  of  being  defended,  but 
legal  adviser  being  ignorant  of  the  purpose  befon;  the  committing  of  the  crime  for  the 
for  which  his  advice  is  wanted,  the  com-  purpose  of  being  aided  or  helped  in  com- 
munication between  the  two  is  privileged."  mitting  it. 
And  it  was  held  that  no  such  privilege 


324  LAW    OF    EVIDENCE.  [PART    II. 

controverted  and  refuted.  *'(/>)     The  great  object  of  the  rule  seems 

6  In  Bolton  v.  Corp.  of  Liverpool,  1  My.  &  K.  83,  per  Lord  Chancellor  Brougham; 
and  in  Pearse  v.  Pearse,  11  Jur.  52,  by  Knight  Bruce,  V.  C.  In  tiie  following  obser- 
vations of  this  learned  judge  we  have  the  view  at  present  taken  of  this  vexed  question 
in  England.  "  That  cases  laid  before  counsel,  on  behalf  of  a  client,  stand  upon  the 
same  footing  as  other  jirofessronal  communications  from  the  client  to  the  counsel  and 
solicitor,  or  to  either  of  them,  may,  1  suppose,  be  assumed  ;  and  that,  as  far  as  any 
discovery  by  the  solicitor  or  counsel  is  concerned,  the  question  of  the  existence  or  non- 
existence of  any  suit,  claim,  or  dispute,  is  immaterial,  —  the  law  providing  for  the 
client's  protection  in  each  state  of  circumstances,  and  in  each  e(iually,  is,  1  suppose, 
not  a  disputable  point.  I  suppose  Cromack  v.  Heathcote  (2  Brod.  k  Bing.  4)  to  be 
now  universally  acceded  to,  and  the  doctrine  of  this  court  to  have  been  correctly  stated 
by  Lord  Lyndhurst,  in  Heriing  v.  Clobery  (1  Pliil.  91),  wlien  he  said,  '  I  lay  down 
this  rule  with  reference  to  this  cause,  that,  where  an  attorney  is  employed  by  a  client 
professionally  to  transact  professional  business,  all  the  communications  that  pass  be- 
tween the  client  and  the  attorney,  in  the  course  and  for  the  purpose  of  that  business, 
are  privileged  communications,  and  that  the  piivilege  is  the  privilege  of  the  client,  and 
not  of  the  attornej'.'  This  I  take  to  be  not  a  peculiar  but  a  general  rule  of  jurisjiru- 
dence.  The  civil  law,  indeed,  considered  the  advocate  and  client  so  identified  or 
bound  together,  that  the  advocate  was,  I  believe,  generally  not  allowed  to  be  a  witness 
for  the  client.  '  Ne  patroni  in  causa,  cui  patrocinium  prrestitei-uiit,  testimonium 
dicant,'  says  the  Digest  (Dig.  lib.  22,  tit.  5,  1.  25).  An  old  jurist,  indeed,  ai)pears  to 
have  thought,  that,  by  putting  an  advocate  to  the  torture,  he  might  have  made  a  good 
witness  for  his  client  ;  but  this  seems  not  to  have  met  with  general  aj)i)robation.  Pro- 
fessors of  the  law,  probably,  were  not  disposed  to  encourage  the  dogma  practically. 
Voet  puts  the  communications  between  a  client  and  an  advocate  on  the  footing  of  those 
between  a  penitent  and  his  priest.  He  says  :  'Non  etiam  advocatus  aut  procurator  in 
ea  causa  cui  patrocinium  prsestitit  aut  procurationem,  idoneus  testis  est,  sive  pro  cliente 
sive  contra  eum  producatur  ;  saltem  non  ad  id,  ut  pandere  cogeretur  ea,  ([uae  non  ali- 
unde quam  ex  revelatione  clientis,  comjierta  habet ;  eo  modo,  quo,  et  sacerdoti,  revelare 
ea  quae  ex  auriculari  didicit  confessione,  nefas  est.'  Now,  whether  laying  or  not  lay- 
ing stress  on  the  observations  made  by  the  late  Lord  Chief  Baron,  in  Knight  v.  Lord 
Waterford  (2  Y.  &  C.  40,  41),  — observations,  1  need  not  say,  well  worthy  of  atten- 
tion, —  I  confess  myself  at  a  loss  to  perceive  any  substantial  ditference,  in  point  of 
reason  or  iirincij)le  or  convenience,  between  the  liability  of  the  client  and  that  of  his 
counsel  or  solicitor,  to  disclose  the  client's  communications  made  in  confidence  profes- 
sionally to  either.  True,  the  client  is,  or  may  be  comi)ellable,  to  disclose  all  that, 
before  he  consulted  the  counsel  or  solicitor,  he  knew,  believed,  or  had  seen  or  heard  ; 
but  the  question  is  not,  I  apjirehend,  one  as  to  the  greater  or  less  probability  of  more 
or  less  damage.  The  question  is,  I  supi)Ose,  one  of  principle,  —  one  that  ought  to  be 
decided  according  to  certain  rules  of  jurisprudence  ;  nor  is  the  exemption  of  the  solici- 
tor or  counsel  from  compulsory  discoveiy  confined  to  advice  given  or  opinions  stated. 
It  extends  to  facts  communicated  by  the  client.  Lord  Eldon  has  said  (19  Ves.  267)  : 
'The  case  might  easily  be  put,  that  a  most  honest  man,  so  changing  his  situation, 
might  communicate  a  fact,  appearing  to  him  to  have  no  connection  with  the  case,  and 
yet  the  whole  title  of  his  former  client  might  depend  on  it.  Though  Sir  John  Strange's 
opinion  was,  that  an  attorney  might,  if  he  pleased,  give  evidence  of  his  client's  secrets, 
I  take  it  to  be  clear,  that  no  court  would  yiermit  him  to  give  such  evidence,  or  would 
have  any  difficulty,  if  a  solicitor,  voluntarily  changing  his  situation,  was,  in  his  new- 
character,  proceeding  to  communicate  a  material  fact.  A  short  way  of  preventing  him 
would  be,  by  striking  him  off  the  roll.'  But  as  to  a  damage  :  a  man,  having  laid  a  case 
before  counsel,  may  die,  leaving  all  the  rest  of  mankind  ignorant  of  a  blot  on  his  title 
stated  in  the  case,  and  not  discoverable  by  any  other  means.  The  whole  fortunes  of  his 
family  may  turn  on  the  question,  whether  the  case  shall  be  discovered,  and  may  be  sub- 
verted by  its  discovery.  Again,  the  client  is  certainly  exempted  fi'om  liability  to  dis- 
cover communications  between  himself  and   his  counsel  or  solicitor  after  litigation 

(b)  The  leading  case  among  the  later  communication  between  himself  and  his 

ones  on  this  point  in  England  is  Minet  legal  adviser,  which  his  legal  adviser  could 

V.  Morgan,  L.  R.  8  Ch.  361,  which  affirms  not  disclose   without  his  jiermission,   al- 

the  broad  principle  that  no  one  can   be  thougli  it  may  have  been  made  before  any 

compelled  to  disclose  to  the  Court  any  dispute  arose  as  to  the  matter  referred  to. 


CHAP.    XIII,]      EVIDENCE    EXCLUDED    FROM    PUBLIC    POLICY.  325 

plainly  to  require  that  the  entire  professional  intercourse  between 

commenced,  or  after  the  commencement  of  a  di.sjuite  ending  in  litigation  ;  at  least,  if 
they  relate  to  the  dispnte,  or  matter  in  dispute.  Upon  this  1  need  scarcely  refer  to  a 
class  of  authorities,  to  vvhicli  Hughes  v.  Biddulph  (4  Kuss.  190),  Nias  v.  Nortliern  and 
Eastern  Railway  Conij):niy  (3  Myl.  &  Cr.  355),  before  the  present  Lord  Chancellor,  in 
his  former  chancelloiship,  and  Holmes  v.  Haddeley  (1  Phil.  476),  decided  by  Lord 
Lyndhurst,  belong.  But  what,  for  the  purpose  of  discovery,  is  the  distinction  in  ])oint 
of  reason,  or  principle,  or  justice,  or  convenience,  between  such  communications  and 
those  which  differ  from  them  only  in  this,  that  they  precede,  instead  of  following,  the 
actual  arising,  not  of  a  cause  for  dispute,  but  of  a  dispute,  I  have  never  hitherto  been 
able  to  perceive.  A  man  is  in  possession  of  an  estate  as  owner ;  he  is  not  under  any 
fiduciary  obligation  ;  he  finds  a  flaw,  or  a  supposed  flaw,  in  his  title,  wliich  it  is  not, 
in  point  of  law  or  ecjuity,  his  duty  to  disclose  to  any  ])erson  ;  he  believes  that  the  Haw 
or  supposed  defect  is  not  known  to  the  only  person,  who,  if  it  is  a  defect,  is  entitled  to 
take  advantage  of  it,  but  that  this  person  niaj'  probably  or  possibly  soon  hear  of  it, 
and  then  institute  a  suit,  or  make  a  claim.  Under  this  apprehension  he  consults  a 
solicitor,  and,  through  the  solicitor,  lays  a  case  before  the  counsel  on  the  subject,  and 
receives  his  opinion.  Some  time  alterwards  the  apprehended  adversary  becomes  au 
actual  adversary,  for,  coming  to  the  knowledge  of  the  defect  or  supposed  flaw  in  the 
title,  he  makes  a  claim,  and,  after  a  preliminary  correspondence,  conmiences  a  suit  in 
equity  to  enforce  it  ;  but  between  the  commencement  of  the  correspondence  and  the 
actual  institution  of  the  suit,  the  man  in  possession  again  consults  a  solicitor,  and 
through  him  again  lays  a  case  before  counsel.  According  to  the  respondent's  aigument 
before  me  on  this  occasion,  the  defendant,  in  the  instance  that  I  have  supposed,  is  as 
clearly  bound  to  disclose  the  tirst  consultation  and  the  first  case,  as  he  is  clearly 
exempted  from  discovering  the  second  consultation  and  the  second  case.  I  have,  I 
repeat,  yet  to  learn  that  such  a  distinction  has  any  foundation  in  reason  or  convenience. 
The  discovery  and  viiulication  and  establishment  of  truth  are  main  purposes,  certainly, 
of  the  existence  of  courts  of  justice  ;  still,  for  the  obtaining  of  these  objects,  which, 
however  valuable  and  important,  cannot  be  nsefuUy  pursued  without  moderation,  can- 
not be  either  usefully  or  creditably  pursued  unfairly,  or  gained  by  unfair  means,  —  not 
every  channel  is  or  ought  to  be  open  to  them.  The  practical  inefficacy  of  torture  is 
not,  I  suppose,  the  most  weighty  objection  to  that  mode  of  examination  ;  nor,  prob- 
ably, would  the  [lurpose  of  the  mere  disclosure  of  truth  have  been  otherwise  than  ad- 
vanced by  a  refusal  on  the  part  of  the  Lord  Chancellor,  in  1815,  to  act  against  the 
solicitor,  who,  in  the  cause  between  Lord  Cholmondeley  and  I^ord  Clinton,  had  acted 
or  proposed  to  act  in  the  manner  which  Lord  Eldon  thought  it  right  to  prohibit. 
Truth,  like  all  other  good  things,  may  be  loved  unwisely,  may  be  pursued  too  keenly, 
may  cost  too  much.  And  surely  the  meanness  and  the  mischief  of  prying  into  a  man's 
confidential  consultations  with  his  legal  adviser,  the  general  evil  of  infusing  reserve 
and  dissimulation,  uneasiness  and  suspicion  and  fear,  into  those  communications  which 
must  take  place,  and  which,  unless  in  a  condition  of  perfect  security,  must  take  place 
uselessly  or  worse,  are  too  great  a  prize  to  pay  for  truth  itself."  See  11  .Jur.  pp.  54,  55; 
1  De  Gex  &  Smale,  25-29.  (c)  See  also  Gresley  on  Evid.  32,  33  ;  Bishop  of  Meath 
V.  Manpiis  of  Winchester,  10  Bing.  330,  375,  454,  455;  Nias  v.  Northern,  &c.  Railway 
Co.,  3  My.  &  C.  356,  357  ;  Bunbury  v.  Bunbury,  2  Beav.  173  ;  Herring  v.  Clobery, 
1  Phil.  91  ;  Jones  v.  Pugh,  Id.  96  ;  Law  Mag.  (London)  vol.  xvii.  pp.  51-74,  and  vol. 
XXX.  pp.  107-123  ;  Holmes  v.  Baddeley,  1  Phil.  Ch.  476.  Lord  Langdale  has  held, 
that  the  privilege  of  a  client,  as  to  discovery,  was  not  coextensive  with  that  of  his 
solicitor  ;  and  therefore  he  compelled  the  son  and  heir  to  discover  a  case,  which  had 
been  submitted  to  counsel  by  his  father,  and  had  come,  with  the  estate,  to  his  hands. 
Greenlaw  v.  King,  1  Beavan,  137.     But  his  opinion,  on  the  general  question,  whether 

{c)  And  in  Minet  v.  Morgan,  L.  R.  8  questions  connected  with  matters  in  dis- 

Ch.  361;  Pearser.  Pearse,  16  L.  .1.  Ch.  153,  pute  in  the  suit,  although  made  before  any 

and   Lawrence  v.  Campliell,  4  Drew.   485,  litigation   was  contemplated.     When  the 

were  ajiproved,  and  all  the  former  decisions  attorney  acts  for  two  parties  in  a  negotia- 

reviewed.      And    it    was  distinctly   held,  tion,   as   for    mortgagor    and    mortgagee, 

that  a  plaintiff  will  not  be  compelled  to  what   comes   to   him   as   an    attorney  for 

produce    confidential    correspondence   be-  either  is  protected.     Doe   v.   Watkins,    3 

tween  himself  or  his  predecessors  in  title  Bing.  N.   C.  421  ;  Doe  ?'.  Seaton,  2  A.  & 

and  their  several  solicitors,  with  respect  to  E.  171  ;  Keyuell  v.  Sprye,  10  Beav.  51. 


326  LAW    OF    EVIDENCE.  [PART    II. 

client  and  attorney,  whatever  it  may  have  consisted  in,  should  be 
protected  by  profound  secrecy.' 

§  240  a.   Opinion  of  counsel  protected.     In  regard  to  the  obliga- 
tion of  the  party  to  discover  and  produce  the  opinion  of  counsel, 
various  distinctions  have  been  attempted  to  be  set  up,  in  favor  of 
a  discovery  of  communications  made  before  litigation,  though  in 
contemplation  of,  and  with  reference  to,  such  litigation,  which 
afterwards  took  place ;  and  again,  in  respect  to  communications 
which,  though  in  fact  made  after  the  dispute  between  the  parties, 
which  was  followed  by  litigation,  were  yet  made  neither  in  con- 
templation of,  nor  with  reference  to,  such  litigation ;  and  again, 
in  regard  to  communications  of  cases  or  statements  of  fact,  made 
on  behalf  of  a  party  by  or  for  his  solicitor  or  legal  adviser,  on  the 
subject-matter  in  question,  after  litigation  commenced,  or  in  con- 
templation of  litigation  on  the  same  subject  with  other  persons, 
with  the  view  of  asserting  the  same  right;  but  all  these  distinc- 
tions have  been  overruled,  and  the  communications  held  to  be 
within  the  privilege.^     And  where  a  cestui  que  trust  filed  a  bill 
against  his  trustee,  to  set  aside  a  purchase  by  the  latter  of  the 
trust  property,  made  thirty  years  back ;  and  the  trustee  filed  his 
cross-bill,  alleging  that  the  cestui  que  trust  had  long  known  his 
situation  in  respect  to  the  property,  and  had  acquiesced  in  the 
purchase,  and  in  proof  thereof  that  he  had,  fifteen  years  before, 
taken  the  opinion  of  counsel  thereon,  of  which  he  prayed  a  dis- 
covery and  production, —  it  was  held  that  the  opinion,  as  it  was 
taken  after  the  dispute  had  arisen  which  was  the  subject  of  the 
original  and  cross-bill  and  for  the  guidance  of  one  of  the  parties 
in  respect  of  that  very  dispute,  was  privileged  at  the  time  it  was 
taken ;  and  as  the  same  dispute  was  still  the  subject  of  the  liti- 
gation,  the  communication  still  retained  its  privilege. 2      But 
where  a  bill  for  the  specific  performance  of  a  contract  for  the  sale 
of  an  estate  was  brought  by  the  assignees  of  a  bankrupt  who  has 
sold  it  under  their  commission,  and  a  cross-bill  was  filed  against 
them  for  discovery,  in  aid  of  the  defence  it  was  held  that  the 
privilege  of  protection  did  not  extend  to  professional  and  confi- 

the  party  is  bound  to  discover  a  case  submitted  to  his  counsel,  is  known  to  be  opposed 
to  that  of  a  maiority  of  the  English  judges,  though  still  retained  by  himselt  bee 
Crisp  V.  Platel,  8  Beav.  62;  Keece  v.  Trye,  9  Beav.  316,  318,  319  ;  Peile  v.  btoddard, 

13  Jur,  373.  .         ,        .     ,  ^  v  ij 

"!  Thus,  what  the  attorney  saw,  namely,  the  destruction  of  an  instrument,  was  held 

privileged.     Pobson  i;.  Kemp,  5  Esp,  52.  .„.,,,,,  -d 

1  Lord  Walsin-ham  v.  Goodricke,  3  Hare,  122,  125  ;  Hughes  v.  Biddulph,  4  Russ 
190  ;  Vent  v.  Pacey,  Id.  193  ;  Clagntt  v.  Phillips,  2  Y.  &  C.  82  ;  Combe  v.  Corp.  of 
Lond.,  1  Y.  &  C.  631  ;  Holmes  v.  Baddeley,  1  Phil.  Ch.  476. 

2  Woods  V.  Woods,  9  Jur.  615  ;  per  Sir  J.  Wigram,  V.  C. 


CHAP,    XIII.]      EVIDENCE    EXCLUDED    FROM    PUBLIC    POLICY.  327 

dential  communications  between  the  defendants  and  their  coun- 
sel, respecting  the  property  and  before  the  sale,  but  only  to  such 
as  had  passed  after  the  sale ;  and  that  it  did  not  extend  to  com- 
munications between  them  in  t\u:  relation  of  principal  and  agent; 
nor  to  those  had  by  the  defendants  or  their  counsel  with  the  in- 
solvent, or  his  creditors,  or  the  provisional  assignee,  or  on  behalf 
of  the  wife  of  the  insolvent. -"^ 

§  241.  Muniments  of  title  protected.  Upon  the  foregoing  prin- 
ciples it  has  been  held,  that  the  attorney  is  not  bound  to  produce 
title-deeds,  or  other  documents,  left  with  him  by  his  client  for 
professional  advice ;  though  he  may  be  examined  to  the  fact  of 
their  existence,  in  order  to  let  in  secondary  evidence  of  their  con- 
tents, which  must  be  from  some  other  source  than  himself.  ^  (a) 
But  whether  the  object  of  leaving  the  documents  with  the  attor- 
ney was  for  professional  advice  or  for  another  purpose,  may  be 
determined  by  the  judge. ^  If  he  was  consulted  merely  as  a  con- 
veyancer,  to  draw  deeds  of  conveyance,  the  communications  made 
to  him  in  that  capacity  are  within  the  rule  of  protection,3(6)  even 
though  he  was  employed  as  the  mutual  adviser  and  counsel  of 
both  parties;  for  it  would  be  most  mischievous,  said  the  learned 
judges  in  the  Common  Pleas,  if  it  could  be  doubted,  whether  or 
not  an  attorney,  consulted  upon  a  man's  title  to  an  estate,  were 
at  liberty  to  divulge  a  flaw.*  (c)     Neither  does  the  rule  require 

8  Robinson  v.  Flight,  8  Jur.  888,  per  Ld.  Langdale. 

1  Brard  v.  Ackeiman,  5  Esp.  119  ;  Doe  v.  Harris,  5  C.  &  P.  5!^2 ;  Jackson  v.  Bur- 
tis,  14  Johns.  391  ;  Dale  v.  Livingston,  4  Wend.  558  ;  Brandt  v.  Klein,  17  Johns.  335; 
Jackson  v.  McVey,  18  Johns.  330;  Bevan  v.  Waters,  1  M.  &  M.  235  ;  Eicke  v.  Nokes, 
Id.  303  ;  Mills  v.  Oddv,  6  C.  &  P.  728  ;  Marston  v.  Downes,  Id.  381  ;  s.  c.  1  Ad.  & 
El.  31,  explained  in  Hibbert  r.  Knight,  12  Jur.  162  ;  Bate  v.  Kinsey,  1  C.  M.  &  R. 
38 ;  Doe  v.  Ross,  7  M.  &  W.  102  ;  Nixon  v.  Mayoh,  1  M.  &  Roli.  76  ;  Davies  v. 
Waters,  9  M.  &  W.  608  ;  Coates  v.  Birch,  1  G.  &  D.  474  ;  1  Dowl.  P.  C.  540  ;  Doe  v. 
Langdon,  12  Q.  B.  711. 

2  Reg.  V.  Jones,  1  Denis.  Cr.  Cas.  166. 

8  Cromack  v.  Heathcote,  2  Brod.  &  Bing.  4  ;  Parker  v.  Carter,  4  Munf.  273  ;  see 
also  Wilson  v.  Troup,  7  Johns.  Ch.  25.  If  he  was  employed  as  the  conveyancer  and 
mutual  counsel  of  both  parties,  either  of  them  may  compel  the  production  of  the  deeds 
and  papers,  in  a  subsequent  suit  between  themselves.  So  it  was  held  in  chancery,  in  a 
suit  by  the  wife  against  the  husband,  for  specific  ])erformance  of  an  agreement  to 
charge  certain  estates  with  her  jointure.     Warde  v.  Warde,  15  Jur.  7.'>9. 

*  Cromack  v.  Heathcote,  2  B.  &  B.  4  ;  Doe  v.  Seaton,  2  Ad.  &  El.  171  ;  Clay  v. 
Williams,  2  Munf.  105,  122  ;  Doe  v.  Watkins,  3  Bing.  N.  C.  421. 

(a)  Stokoe  v.  St.  Paul,  Minn.  &  Manit.  proper   sense   of  the   terms.      The   party 

Ry.  Co.,  40  Minn.  546  ;  Brandt  v.  Klein,  employing  him    has  no  reason  to  believe 

17  Johns.  335.  that  the  communications  made  to  him  are 

(&)  <'rane    v.   Barkdoll,    59   Md.    534;  privileged,  as  he  is  in  no  sense  a  memlier 

Getzlaif  v.  Seliger,   43  Wis.  297.     But  in  of  the   legal    profession   or    in    any    way 

Pennsylvania,  the  rule  is  that  communica-  amenable  to  the  control  of  the  Court  as  an 

tions    to   conveyancers   as   sicch    are    not  officer  thereof."     Matthew's  Estate,  5  Pa. 

privileged.       "A    conveyancer    is   not    a  L.  J.  R.  149. 
legal  adviser  or  professional  adviser  in  any  (c)  A  rule  is  established  in  the  United 


328  LAW    OF    EVIDENCE.  [PART   IJ, 

any  regular  retainer,  as  counsel,  nor  any  particular  form  of  ap- 
plication or  engagement,  nor  the  payment  of  fees.  It  is  enough 
that  he  was  applied  to  for  advice  or  aid  in  his  professional  char- 
acter.^ But  this  character  must  have  been  known  to  the  ajjpli- 
cant;  for  if  a  person  should  be  consulted  confidentially,  on  the 
supposition  that  he  was  an  attorney,  when  in  fact  he  was  not  one, 
he  will  be  compelled  to  disclose  the  matters  communicated.^  (ci) 

§  242.  Except  when  the  attorney  is  also  a  party.  This  rule  is 
limited  to  cases  where  the  witness,  or  the  defendant  in  a  bill  in 
.chancery  treated  as  such,  and  so  called  to  discover,  learned  the 
matter  in  question  only  as  counsel,  solicitor,  or  attorney,  and  in 
no  other  way.  If,  therefore,  he  were  a  party  to  the  transaction^ 
and  especially  if  he  were  party  to  the  fraud  (as,  for  example,  if 
he  turned  informer,  after  being  engaged  in  a  conspiracy),  or,  in 
other  words,  if  he  were  acting  for  himself,  though  he  might  also 
be  employed  for  another,  he  would  not  be  protected  from  disclos- 
ing ;  for  in  such  a  case  his  knowledge  would  not  be  acquired  solely 
by  his  being  employed  professionally.^  {a) 

^  Foster  v.  Hall,  12  Pick.  89.  See  also  Bean  v.  Qnimby,  5  N.  H.  94.  An  applica- 
tion to  an  attovnej'  or  solicitor,  to  advance  money  on  a  mortgage  of  property  tlesuribed 
in  a  forged  will,  shown  to  him,  is  not  a  privileged  communication  as  to  the  will.  Reg. 
V.  Farley,  1  Denison,  197.     And  see  Reg.  v.  Jones,  Id.  166. 

*>  Fountain  v.  Young,  6  Esp.  113. 

1  Greenough  v.  Gaskell,  1  My.  &  K.  103,  104  ;  Desborough  v.  Rawlins,  3  Mvl.  &  Cr. 
515,  521-523  ;  Story  on  Eq.  PI.  §§  601,  602.  In  Dulfini;.  Smith,  Feake's  Gas.  108,  Lord 
Kenyon  recognized  this  principle,  though  he  applied  it  to  the  case  of  an  attorney  pre- 
paring title-deeds,  treating  him  as  thereby  becoming  a  party  to  the  transaction  ;  but 
such  are  now  held  to  be  professional  communications. 

States  that  an  attorney  employed  by  two  (d)  Barnes  v.  Harris,  7  Cush.  (Mass.) 

or  more  parties  to  give  advice  in  a  matter  576,  p.    578  ;  Sample  v.    Frost,  10  Iowa, 

in  which   they    are    mutually    interested  266. 

may,    on    litigation  subsequently   arising  (a)  Jeanes  v.   Fridenburgh,    5  Pa.   L. 

between   themselves,    be    examined    as  a  J.  65.     Any  such  communication,  il'  made 

witness   at   the  instance  of  either  of  the  in  the  furtherance  of  a  criminal  purpose,  is 

parties  as  to  communications  made  when  not  under  tlie  i)rotection.     FoUett  v.  Jef- 

he  was  acting   as  attorney  for  all.     Gu-  feryes,    1     Sim.    N.  s.    17  ;    Cliarlton   v. 

lick     V.     Gulick,    39    N.    J.     Eq.     516  ;  Coombes,    32    L.    J.    Ch.    284  ;   Bank   of 

Michael  v.  Foil,  100  N.  0.  189  ;  Cady  v.  Utica  v.    Mersereau,  3  Barb.  (N.  Y.)  Ch. 

Walker,   62   Mich.    157  :  Tyler  v.   Tyler,  528  ;  People  v.  Sheriff,  29  Barb.  (N.  Y.) 

126  111.  541 ;  Lynn  v.  L}'erle,  113  111.  134  ;  627.     But  there  must  be  more  than  a  sug- 

In  re,  Bauer,   79  Cal.  312  ;  at  least,  when  gestion  of  fraud  in  general  terms,  in  order 

the   communications   were    made   to    the  to  take  away  the  protection  of  this  rule, 

attorney   in    the    jjresence    of    the   other  The  fraud  relied  on  must  clearly  appear. 

])arty  (Colt   v.  McConnell,  116  Ind.  256  ;  Higbee  v.  Dresser,  103  Mass.  523. 
Goodwin  Company's  Appeal,  117  Pa.  St.  Facts  stated   to  an  attornev,  as  reasons 

537  ;    Hanlon    v.  Doherty,  109  Ind.    37),  to  show  that  the   cause  in   which    he  is 

the  communications  then  not  being  con-  sought  to   be  retained  does   not   conHict 

sidered   confidential.       And    when    com-  with  the  interests    of  a  clieTit  for  whom 

munications  to  the  attorney  are  made  in  hfi  is  already  employed,  are  not  confiden- 

the  presence   of   strangers   they   are    not  tial  communications.     Heatoni;.  Findlay, 

privileged.     Whiting  v.  Barney,  30  N.  Y.  12  Pa.  St.  304. 
330. 


CHAP.    XIII.]       EVIDENCE   EXC_UbED    FROM    PUBLIC    POLICY. 


329 


§  243.  Protection  perpetuaL  The  protection  given  by  the  law 
to  such  coniniiinications  does  not  cease  with  the  termination  of 
the  suit,  or  other  litigation  or  business,  in  which  they  were 
made ;  nor  is  it  affected  by  the  party's  ceasing  to  employ  the 
attorney  and  retaining  another;  nor  by  any  other  change  of  rela- 
tions between  them ;  nor  by  the  death  of  the  client,  (a)    The  seal 


(a)  There  is  authority  to  the  effect 
that,  upon  the  decease  of  the  client,  in 
cases  where  a  strict  adherence  to  this  rule 
would  render  it  inconsistent  with  its  ob- 
ject, the  privilege  may  be  waived  by  the 
re|)resentative  of  the  deceased  client. 
Morris  v.  Morris,  119  Ind.  343  ;  Lay- 
man's Will,  40  iMinn.  372  ;  Russell  v. 
Jackson,  15  Jur.  1117  ;  Blackburn  v. 
Crawfords,  3  Wall.  175.  But  in  New 
York,  this  ])oint  has  been  thoroughly  dis- 
cussed in  connection  with  the  jirivilege 
there  created  by  statute,  and  given  to  a 
patient  as  to  his  disclosuies  to  his 
physician,  and  the  courts  have  arrived  at 
the  rule  that  after  the  death  of  a  client 
the  privilege  cannot  be  waived  by  any 
])erson,  but  is  perpetual  Loder  v.  Whel- 
l.ley,  111  N.  Y.  245  ;  Westover  v.  ^Etna 
Life  Ins.  Co.  99  N.  Y.  56.  But  although 
the  privilege  cannot  be  waived  after  the 
death  of  the  client  or  patient,  yet  the 
admission  of  the  evidence  of  the  attorney 
is  subject  to  the  same  rules  as  other  evi- 
dence ;  and,  although  incompetent,  yet 
if  it  is  not  objected  to  at  the  right  time, 
the  party  who  should  have  objected  to  its 
incompetency,  if  he  wished  to  avail  him- 
self thereof,  cannot  afterwards  impeach 
the  competency  of  the  testimony.  Hoyt 
V.  Hoyt,  112  N.  Y.  513.  This  latter  case 
cites  the  case  of  Westover  v.  ..Etna  Life 
In.s.  Co.,  supra,  in  which  case  the  court 
says:  "The  purpose  of  the  laws  would 
be  thwarted  and  the  policy  intended  to  be 
promoted  thereby  would  be  defeated,  if 
death  removed  the  seal  of  secrecy  from 
communications  and  disclosures  which  a 
patient  should  make  to  his  physician,  or 
a  client  to  his  attorney,  or  a  penitent 
to  his  priest.  Whenever  the  evidence 
comes  within  the  purview  of  the  statute 
it  is  absolutely  prohibited  and  may  be 
objected  to  by  any  one  unless  it  be  waived 
by  the  person  for  whose  benefit  and  pro- 
tection the  statutes  were  enacted.  After 
one  has  gone  to  his  grave,  the  living  are 
not  permitted  to  impair  his  fame  and  dis- 
grace his  memory  by  dragging  to  the 
light  communications  and  disclosures 
made  under  the  seal  of  the  statutes.  An 
executor  or  administrator  does  not  re- 
present the  deceased   for  the  purpose   of 


making  such  a  waiver.  He  represents 
him  simpl}''  in  reference  to  rights  of 
property,  but  not  in  reference  to  tho.se 
rights  which  pertain  to  the  person  or 
character  of  the  testator.  If  one,  repre- 
senting the  pro[)erty  of  a  client,  can  \vaiv« 
tlie  seal  of  the  statute  because  he  rep- 
resents the  property,  then  the  righi 
to  make  the  waiver  would  exist  as  well 
before  death  as  after,  and  the  general 
assignee  of  a  patient  for  the  purpose  of 
protecting  the  assigned  estate,  could  make 
the  waiver;  yet  it  has  been  held  that  an 
assignee  in  bankruptcy  is  not  empowered 
to  consent  that  the  juofessional  com- 
munications of  his  assignor  shall  be  dis- 
closed. Bowman  v.  Norton,  5  C.  &  P. 
177."  The  court  in  Westover  v.  Insur- 
ance Co. ,  s'«p/-'/,  then  jiroceeds  to  discuss 
the  case  of  Edington  v.  Mutual  Life  In- 
surance Co.,  67  N.  Y.  185,  and  show  that 
that  case  did  not  decide  that  a  personal 
re|)resentative  could  waive  the  protection 
of  the  statute,  but  that  the  personal  repre- 
sentative or  assignee  of  the  patient  could 
make  the  objection  to  the  evidence  for- 
bidden by  the  statute  ;  and  continues 
further  that  that  case  might  have  gone 
further,  and  held  that  any  party  to  an  ac- 
tion could  make  the  objection,  as  the  evi- 
dence in  itself  is  objectionable,  unless  the 
objection  be  waived  by  the  person  for 
whose  protection  the  statutes  were  en- 
acted. It  is  further  held  in  New  York, 
that  the  statute  does  not  apply  to  crim- 
inal cases  where  its  prohibition  is  invoked 
solely  for  the  protection  of  the  criminal, 
and  not  at  all  for  the  benefit  or  protection 
of  the  patient  who  was  dead,  a  waiver  of 
the  prohibition  therefore  becoming  im- 
possible. Fierson  v.  People,  79  N.  Y.  424. 
The  privilege  of  this  rule  is  also  waived 
if  the  party  entitled  to  it  has  in  a  previous 
trial  put  the  doctor  or  lawyer  on  the  wit- 
ness-stand to  testify  as  to  the  facts  con- 
tained in  such  communications.  The  ban 
of  secrecy  having  been  once  removed  by 
the  patient  or  client,  and  the  information 
having  been  lawfully  made  public,  tlie 
court  holds  that  the  right  to  object 
further  thereto  is  gone.  McKinnev  v. 
Grand  St.  etc.,  R.  R.  Co.,  104  N.'  Y. 
355. 


330  LAW   OP   EVIDENCE.  [PART   IL 

of  the  law,  once  fixed  upon  them,  remains  forever ;  unless  removed 
hy  the 'party  himself\  in  whose  favor  it  was  there  placed.  ^(6)  It 
is  not  removed  without  the  client's  consent,  even  though  the  in- 
terests of  crimirfal  justice  may  seem  to  require  the  production  of 
the  evidence.  2(e) 

§  244.  "When  the  attorney  must  disclose.  This  rule  is  further 
illustrated  by  reference  to  the  cases,  in  which  the  attorney  may 
be  examined,  and  which  are  therefore  sometimes  mentioned  as 
exceptions  to  the  rule.  These  apparent  exceptions  are,  where  the 
communication  was  made  before  the  attorney  was  employed  as  such, 
or  after  h\&  employment  had  ceased  ;  or  where,  though  consulted 
by  a  friend,  because  he  was  an  attorney,  yet  he  refused  to  act  as 
such,  and  was  therefore  only  applied  to  as  a  friend;  or  where  there 
could  not  be  said,  in  any  correctness  of  speech,  to  be  a  communi- 
cation at  all,  as  where,  for  instance,  a  fact,  something  that  was 
done,  became  known  to  him,  from  his  having  been  brought  to  a 
certain  place  by  the  circumstance  of  his  being  the  attorney,  but 
of  which  fact  any  other  man,  if  there,  would  have  been  equally 
conusant  (and  even  this  has  been  held  privileged  in  some  of  the 
cases) ;  or  where  the  matter  commnicated  was  not  in  its  nature 
private,  and  could  in  no  sense  be  termed  the  subject  of  a  confi- 
dential disclosure ;  or  where  the  thing  had  7io  reference  to  the 

1  Wilson  V.  Rastall,  4  T.  R.  759,  per  Buller,  J.  ;  Petrie's  Case,  cited  arg.  4  T.  R. 
756  ;  Parker  v.  Yates,  12  Moore,  520  ;  Merle  v.  More,  R.  &  M.  390.  And  the  cliejit 
does  not  waive  this  privilege  merely  by  calling  the  attorney  as  a  witness,  unless  he  also 
himself  examines  him  in  chief  to  the  matter  jirivileged.  Vaillant  v.  Dodemead,  2  Atk. 
524  ;  Waldron  v.  Ward,  Sty.  449.  If  several  clients  consult  him  respecting  their  com- 
mon business,  the  consent  of  them  all  is  necessary  to  enable  liim  to  testify,  even  in  an 
action  in  which  only  one  of  them  is  a  party.  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch. 
528.  Where  the  party's  solicitor  became  trustee  under  a  deed  for  the  benefit  of  the 
client's  creditors,  it  was  held  that  communications  subsequent  to  the  deed  were  still 
privileged.     Pritchard  v.  Foulkes,  1  Coop.  14. 

2  Rex  V.  Smith,  Phil.  &  Am.  on  Evid.  182  :  Rex  v.  Dixon,  3  Burr.  1687  ;  Anon,, 
8  Mass.  370  ;  Petrie's  Case,  supra.  But  see  Reg.  v.  Avery,  8  C.  &  P.  596,  in  which  it 
was  held,  that,  where  the  same  attorney  acted  for  the  mortgagee,  in  lending  the  money, 
and  also  for  the  prisoner  the  mortgagor,  in  ])rpparing  the  mortgage  deed,  and  received 
from  the  prisoner,  as  part  of  his  title-deeds,  a  forged  will,  it  was  held,  on  a  trial  for 
forging  the  will,  that  it  was  not  a  privileged  communication;  and  the  attorney  was  held 
bound  to  produce  it.     See  also  Shores.  Bedford,  5  Man.  &  Grang.  271. 

(6)  See  ante,  §  237,  note.     A  rule  has  of  the  privilege  has  been  removed  by  his 

grown  up  in  several  States,  and  is  some-  own  act.     People  i'.   Gallagher,   75  Mich, 

times  enacted  by  statute,  as  will  be  seen  515  ;  State  v.  Tall,  43  Minn.  276. 
by  reference  to  the  statutes,  cited  in  note  to  (c)    And  if    the  attorney   cannot  say 

section  237,  that  when  one  who  is  accused  whether  the  communication  came  to  him 

of  a  crime  or  is  a  party  or  witness  to  a  while  acting  as  counsel,  or  was  made  by 

civil  suit,  goes  upon  the  stand  as  a  wit-  the  client  while  under    examination  as  a 

iiess  and  testifies  as  to  the  facts  contained  witness,  the  client,  being  on  trial  on  an 

in  his  communications  to  his  attorney,  he  indictment,   is  entitled   to  the   benefit  of 

has,  by  going  upon  the  stand  and  testi-  the  doubt.     People  v.   Atkinson,   40  CaL 

fying,  waived  his  privilege,  as  the  reason  284. 


CHAP.    XIII.]      EVIDENCE   EXCLUDED    FROM   PUBLIC   POLICY.  331 

professional  employment,  though  disclosed  while  the  relation  of 
attorney  and  client  subsisted;  or  where  the  attorney,  havin<'' 
made  himself  a  subscribing  ivitness,  and  thereby  assumed  another 
character  for  the  occasion,  adopted  the  duties  which  it  imposes, 
and  became  bound  to  give  evidence  of  all  that  a  subscribing  wit- 
ness can  be  required  to  prove,  (a)  In  all  stlbh  cases,  it  is  plain 
tliat  the  attorney  is  not  called  upon  to  disclose  matters  which  he 
can  be  said  to  have  learned  by  communication  with  his  client,  or 
(m  his  client's  behalf,  matters  which  were  so  committed  to  him, 
in  his  capacity  of  attorney,  and  matters  which  in  that  capacity 
alone  he  had  come  to  know.^ 

§  245.  Same  subject.  Thus,  the  attorney  may  be  compelled  to 
disclose  the  name  of  the  person  by  whom  he  was  retained,  in 
order  to  let  in  the  confessions  of  the  real  party  in  interest ;  ^  the 
character  in  which  his  client  employed  him,  whether  that  of 
executor  or  trustee,  or  on  his  private  account  ;2  the  time  when 

8  Per  Ld.  Brougham,  in  Greenough  v.  Gaskell,  1  My.  &  K.  104.  See  also  Desbor- 
ough  V.  Rawlins,  3  Myl.  &  Cr.  521,  522  ;  Lord  Walsinghaiu  v.  Goodiicke,  3  Hare, 
122  ;  Story's  Eq.  PI.  §§  601,  602  ;  Bolton  v.  Corporation  of  Liverpool,  1  My.  &  K.  88  ; 
Annesley  v.  E.  of  Anglesea,  17  Howell's  St.  Tr.  1239-1244  ;  Gillard  v.  Bates,  6  M.  & 
W.  547  ;  Rex  v.  Brewer,  6  0.  &  P.  363  ;  Levers  v.  Van  Buskirk,  4  Barr,  309.  Com- 
munications between  the  solieitor  and  one  of  his  clients'  witnesses,  as  to  the  evidence 
to  be  given  by  the  witness,  are  not  privileged.  Mackenzie  v.  Yeo,  2  Curt.  866.  It 
has  also  been  iield,  that  communications  between  a  testator  and  the  solicitor  who  pre- 
pared his  will,  respecting  the  will  and  the  trusts  thereof,  are  not  privileged.  Russell 
r.  Jackson,  15  Jur.  1117. 

1  Levy  V.  Pope,  1  M.  &  M.  410;  Brown  v.  Payson,  6  N.  H.  443;  Chirac  v.  Rei- 
nicker,  11  Wheat.  230  ;  Gower  v.  Emery,  6  Shepl.  79. 

2  Beckwith  v.  Benner,  6  C.  &  P.  681.  But  see,  Chirack  v.  Reinicker,  11  Wheat.  280. 
295,  where  it  was  held,  that  counsel  could  not  disclose  whether  they  were  employed  to 
conduct  an  ejectment  for  their  client  as  landlord  of  the  premises. 

(a)  'This    point   was    thoroughly    dis-  death,   and  that  the  testator  must   have 

cussed   in   a  recent   case   in    New    York,  been  aware  that   his  object  in   making  a 

Will  of  William  Coleman,  111  N.  Y.  226.  will  might  prove  to  be  ineffectual  unless 

The  evidence  in  that  case  showed  that  the  these  witnesses  could  be  called  to  testify 

witnesses  in  question  were  a  firm  of  law-  to   the  circumstances   attending   its   exe- 

yers,  and  were  employed  by  the  testator  cution,    including    the    condition    of   his 

in  their  professional  capacity  to  draw  his  mental  faculties  at  that  time.     The  condi- 

will,  and  that  the  conversations  offered  in  tion  of  the   testator's  mind,  as  evidenced 

evidence  were   had    with    them    for    the  by  his  actions,  conduct,  and  conversation 

purpo.se  of  enabling  them  to  execute  the  at  the  time  of  making  the  will,  is  a  part 

instructions  of  the  testator.     These  inter-  of  the  res  gestue   of  the    transaction,  and 

views  were  clearly  within  the  protection  witnesses  thereto  are  competent  to  speak 

of  the  statute,  and  were  inadmissible  as  thereof,    and    give    opinions    in    relation 

evidence,  unless  by  requesting  his  lawyers  thereto,    without    any    other     knowledge 

to  subscribe  his  will  the  rule  had    been  thereof  except  that  derived  from  his  con- 

exi)ressly   waived    by    the    client.       The  duct  on  such  occasions  ;  and  the  testator 

court   held  that   the  request  to   attest  a  being  presumed  to  know  this,  is  held  to 

will  implies  not  only  information  in  the  have   meant  to  release   his  attorneys  from 

testator  as  to  the  necessity  of  such  signa-  their    professional    privilege,    by     asking 

tures  to   the    validity  of  the  instrument  them    to  subscribe   his  will,  as   much   as 

executed,  but  also  knowledge  of  the   ob-  if  he  had  put  them  on  the  witness-stand, 

ligations  which  the   witnesses   assume    in  McKinney  v.  Grand  St.  &c.  R.  R.  Co.  104 

respect    to    the    proof    thereof   after    his  N.  Y.  352. 


332  LAW   OP   EVIDENCE.  [PART   II. 

an  instrument  was  put  into  his  hands,  but  not  its  condition  and 
appearance  at  that  time,  as,  whether  it  was  stamped  or  indorsed, 
or  not;^  the  fact  of  his  paying  over  to  his  client  moneys  col- 
'lected  for  him;  the  execution  of  a  deed  by  his  client,  which  he 
attested ;  ^  (a)  a  statement  made  by  him  to  the  adverse  party. ^  He 
may  also  be  called  to  prove  the  identity  of  his  client;^  the  fact 
of  his  having  sworn  to  his  answer  in  chancery,  if  he  were  then 
present;^  usury  in  a  loan  made  by  him  as  broker,  as  well  as  at- 
torney to  the  lender ;  ^  the  fact  that  he  or  his  client  is  in  posses- 
sion of  a  certain  document  of  his  client's  for  the  purpose  of 
letting  in  secondary  evidence  of  its  contents;^  and  his  client's 
handwriting.  ^'^  But  in  all  cases  of  this  sort,  the  privilege  of  se- 
crecy is  carefully  extended  to  all  the  matters  professionally  dis- 
closed, and  which  he  would  not  have  known  but  from  his  being 
consulted  professionally  by  his  client. 

§  246.  Papers  of  strangers  to  suit.  Where  an  attorney  is  called 
upon,  whether  by  subpoena  duces  tecum,  or  otherwise,  to  produce 
deeds  or  papers  belonging  to  his  client,  who  is  not  a  party  to  the 
suit,  the  court  will  inspect  the  documents,  and  pronounce  upon 
their  admissibility,  according  as  their  production  may  appear  to 
be  prejudicial  or  not  to  the  client ;  in  like  manner  as  where  a 

3  Wheatley  v.  Williams,  1  M.  &  W.  533  ;  Brown  v.  Payson,  6  K.  H.  443.  But  if 
the  question  were  about  a  rasure  in  a  deed  or  will,  he  mi^ht  be  examined  to  the  ques- 
tion, whether  he  had  ever  seen  it  in  any  other  plight.  Bull.  N.  P.  284.  So,  as  to  a 
confession  of  the  rasure  by  his  client,  if  it  were  confessed  before  his  retainer.  Cuts  v. 
Pickering,  1  Veutr.  197.  See  also  Baker  v.  Arnold,  1  Cai.  258,  per  Thompson  and 
Livingston,  JJ. 

*  Doe  V.  Andrews,  Cowp.  845  ;  Robson  v.  Kemp,  4  Esp.  235  ;  s.  c.  5  Esp.  53  ; 
Sandford  v.  Remington,  2  Ves.  Jr.  189. 

6  Eipon  V.  Davies,  2  Nev.  &  M.  310  ;  Shore  v.  Bedford,  5  M.  &  Gr.  271  ;  Griffith 
V.  Davies,  5  B.  &  Ad.  502,  overruling  Gainsford  v.  Grammar,  2  Cainpb.  9,  contra. 

s  Cowp.  846  ;  Beckwitli  v.  Benner,  6  C.  &  P.  681  ;  Hurdi;.  Moring,  1  C.  &  P.  372; 
Rex  V.  Watkinson,  2  Str.  1122,  and  note. 

7  Bull.  N.  P.  284  ;  Cowp.  846.  «  Duffin  y.  Smith,  Peake's  Case,  108. 

^  Revan  V.  Waters,  1  M.  &  M.  235  ;  Eicke  v.  Nokes,  Id.  303  ;  .Jackson  v.  McVey, 
18  Johns.  330  ;  Brandt  v.  Klein,  17  Johns.  335:  Doe  v.  Ross,  7  iM  «&  W.  102  ;  Robson 
V.  Kemp,  5  Esp.  53  ;  Coates  v.  Birch,  2  Q.  B.  252  ;  Covenev  v.  Tannahill,  1  Hill,  33; 
Dwyer  v.  Collins,  16  Jur.  569  ;  7  Exch.  639. 

10  Hunl  V.  Moring,  1  C.  &  P.  372  ;  Johnson  v.  Daverne,  19  Johns.  134  ;  4  Hawk. 
P.  C.  b.  2,  ch.  46,  §  89. 

(a)  The  mere  fact  of  having  retained  which  is  part  of  his  client's  case  (Allen  v. 
counsel  is  not  a  privileged  communication  Root,  39  Tex.  589).  And  it  is  upon  the 
(Forshaw  v.  Lewis,  1  Jur.  N.  s.  263)  ;  nor  same  ground  that  counsel  have  been  held 
the  fact  that  he  drew  a  deed  foi'  his  client  not  privileged  from  disclosing  the  fact  of 
and  the  date  when  he  did  so  (Rundle  v.  a  payment  made  to  the  client,  and  corn- 
Foster,  3  Tenn.  Ch.  658);  or  the  fact  tliat  municated  by  him  to  the  attorney,  for  the 
he  has  been  entrusted  with  money  by  his  purpose  of  having  the  ap[ilication  made, 
client,  and  where  he  deposited  it  (Jeanes  the  client  having  deceased,  since  this  is 
V.  Fridenbnrgh,  3  Pa.  L.  J.  R.  199  ;  Wil-  not  in  any  sense  a  professional  confidence, 
liams  V.  Young.  46  Iowa,  140)  ;  or  the  Clark  v.  Richards,  17  N.  Y.  89. 
manner    in    which    he  obtained   a    paper 


CHAP.    XIII.]      EVIDENCE    EXCLUDED    FROM    PUBLIC    POLICY.  333 

witness  ol)jccts  to  the  production  of  his  own  title-deeds.'  (a)  And 
the  same  discretion  will  be  exercised  by  the  courts,  where  the 
documents  called  for  are  in  the  hands  of  solicitors  for  the  as- 
signees of  bankrupts; 2 (^)  though  it  was  at  one  time  thought  that 
their  production  was  a  matter  of  public  duty.-^  So,  if  the  docu- 
ments called  for  are  in  the  hands  of  the  agent  or  steivard  of  a 
third  person,  or  even  in  the  hands  of  the  owner  himself,  their 
production  will  not  be  required  where,  in  the  judgment  of  the 
court,  it  may  injuriously  affect  his  title*  This  extension  of  the 
rule,  which  will  be  more  fully  treated  hereafter,  is  founded  on 
a  consideration  of  the  great  inconvenience  and  mischief  which 
may  result  to  individuals  from  a  compulsory  disclosure  and  col- 
lateral discussion  of  their  titles,  in  cases  where,  not  being  them- 
selves parties,  the  whole  merits  cannot  be  tried. 

§  247.  Communications  to  clergymen.  [The  text  of  this  sec- 
tion is  now  in  many  States  overruled  by  statutes  which  confer  a 
privilege  on  confessions  to  clergymen.  The  statutes  and  deci- 
sions are  discussed  with  the  kindred  rule  as  to  physicians  in  the 
note  to  §  248,  posf].  There  is  one  other  situation  in  which  the 
exclusion  of  evidence  has  been  strongly  contended   for,  on  the 

1  Copeland  v.  Watts,  1  Stai'k.  95  ;  Amey  v.  Long,  9  East,  473  ;  s.  c.  1  Campb. 
14  ;  Phil.  &  Am.  on  Evid.  186  ;  1  Phil.  Evid".  175  ;  Reynolds  v.  Rowley,  3  Rob.  (La.) 
201  ;  Travis  v.  January,  Id.  227. 

2  Bateson  v.  Hartsink,  4  Esp.  43  ;  Cohen  v.  Templar,  2  Stark.  260  ;  Laing  v.  Bar- 
clay, 3  Stark.  38  ;  Hawkins  v.  Howard,  Ry.  &  M.  64  ;  Corsen  v.  Dubois,  Holt's  Cas. 
239  ;  Bull  v.  Lovelaud,  10  Pick.  9,  14  ;  Volant  v.  Soyer,  22  Law  J.  C,  P.  83  ;  16  Eng. 
Law  &  Eq.  426. 

3  Pearson  v.  Fletcher,  5  Esp.  90,  per  Ld.  Ellenborough. 

*  Rex  V.  Hunter,  3  C.  &  P.  591  ;  Pickering  c.  Noves,  1  B.  &  C.  262  ;  Roberts  v. 
Simpson,  2  Stark.  203  ;  Doe  v.  Thomas,  9  B.  &  C.  288  ;  Ball  v.  Loveland,  10  Pick.  9, 
14.  And  see  Doe  v.  Langdon,  12  Q.  B.  711  ;  13  Jur.  96  ;"Doe  v.  Hertford,  13  Jur. 
632.  H  brought  an  action  upon  boiuls  against  E,  in  which  the  opinion  of  eminent 
counsel  had  been  taken  by  the  plaintilF,  upon  a  case  stated.  Afterwards  an  action  was 
brought  by  C  against  E  upon  other  similar  bonds,  and  the  solicitor  of  H  lent  to  the 
solicitor  of  C  the  case  and  opinion  of  counsel  taken  in  the  former  suit,  to  aid  him  in 
the  conduct  of  the  latter.  And  upon  a  bill  tiled  by  E  against  C,  for  the  discovery  and 
])roduction  of  this  document,  it  was  held  to  be  a  privileged  communication.  Enthoven 
V.  Cobb,  16  Jur.  1152  ;   17  Jur.  81  ;   15  Eng.  Law  &  Eq.  277,  295. 

(n)  In  Volant  v.  Soyer,  13  C.  B.  231,  of  his  employment  as  the  solicitor  of  the 

it  was  held  that  an  attorney  had  no  right  defendant  in  relation  to  such  matters,  and 

to   produce  or   to   answer   any   questions  from    no   other   source,"  the   court   held, 

ron(^erning   the   nature   or   contents  of  a  Kindersley,  V.  C,  that,  to  be  privileged, 

deed  or  other  document  entrusted  to  him  it  must  be  "  a  confidential  communication 

professionally  by  his  client ;  nor  can  the  between  him  and  his  client   in  the  charac- 

judge  look  at  the  instrument,  with  a  view  ter  of  his  professional  relation  of  solicitor 

to   determine   whether    the    objection    to  and  client.     It  is  not  necessary  to  show 

giving  testimony  in  regard  to  it  be  well  that    it  was  secret,   but   it  must_  pass  in 

founded.  that   relation  ;    and    it    must   arise    from 

{b)   Where  a  witness  declined  answer-  communications  by  the  client  to  the   .so- 

ing,  on  the  ground  that  "his  knowledge  licitor,  or  solicitor  to  the  client."     Marsh 

inquired  after  had  been  acquired  by  virtue  v.  Keith,  6  Jur.  n.  s.  1182. 


334  LAW    OF    EVIDENCE.  [PART    II 

ground  of  confidence  and  the  general  good,  namely,  that  of  a 
clerfiyman  ;  and  this  chiefly,  if  not  wholly,  in  reference  to  crimi- 
nal conduct  and  proceedings;  that  the  guilty  conscience  may 
with  safety  disburden  itself  by  penitential  confessions,  and  by 
spiritual  advice,  instruction,  and  discipline,  seek  pardon  and 
relief.  The  law  of  Papal  Rome  has  adopted  this  principle  in 
its  fullest  extent ;  not  only  excepting  such  confessions  from  the 
general  rules  of  evidence,  as  we  have  already  intimated,^  but 
punishing  the  priest  who  reveals  them.  It  even  has  gone  far- 
ther; for  Mascardus,  after  observing  that,  in  general,  persons 
coming  to  the  knowledge  of  facts,  under  an  oath  of  secrecy,  are 
compellable  to  disclose  them  as  witnesses,  proceeds  to  state 
the  case  of  confessions  to  a  priest  as  not  within  the  operation 
of  the  rule,  on  the  ground  that  the  confession  is  made  not  so 
much  to  the  priest  as  to  the  Deit}',  whom  he  represents;  and 
that  therefore  the  priest,  when  appearing  as  a  witness  in  his 
private  character,  may  lawfully  swear  that  he  knows  nothing  of 
the  subject.  "  Hoc  tamen  restringe,  non  posse  procedere  in 
sacerdote  product©  in  testem  contra  reum  criminis,  quando  in 
-confessione  sacramentali  fuit  aliquid  sibi  dictum,  quia  potest 
dicere,  se  nihil  scire  ex  eo;  quod  illud,  quod  scit,  scit  ut  Deus, 
et  ut  Deus  non  producitur  in  testem,  sed  ut  homo,  et  tanquam 
homo  ignorat  illud  super  quo  producitur. "  ^  In  Scotland,  where 
a  prisoner  in  custody  and  preparing  for  his  trial  has  confessed  his 
crimes  to  a  clergyman,  in  order  to  obtain  spiritual  advice  and 
comfort,  the  clergyman  is  not  required  to  give  evidence  of  such 
confession.  But  even  in  criminal  cases,  this  exception  is  not 
carried  so  far  as  to  include  communications  made  confidentially 
to  clergymen  in  the  ordinary  course  of  their  duty.^  Though  the 
law  of  England  encourages  the  penitent  to  confess  his  sins,  "  for 
the  unburthening  of  his  conscience,  and  to  receive  spiritual  con- 

1  Supra,  §  229,  n.  By  the  Capitularies  of  the  French  kings,  and  some  other  conti- 
nental codes  of  the  Middle  Ages,  the  clergy  were  not  only  excused,  but  in  some  cases 
were  utterly  prohibited  from  attending  as  witnesses  in  any  cause.  Cierici  de  judicii 
sui  cognitione  non  cogantur  in  publicum  dicere  testimonium.  Capit.  Reg.  Francorum, 
lib.  7,  §  118  (A.  D.  827).  Ut  nulla  ad  testimonia  dicendum,  ecclesiastici  cujuslibet 
pulsetur  persona.  Id.  §  91.  See  Leges  Barbar.  Antiq.  vol.  iii.  pp.  313,  316.  Leges 
Langobardicae,  in  the  same  collection,  vol.  i.  pp.  184,  209,  237.  But  from  the  consti- 
tutions of  King  Ethelred,  which  provide  for  the  punishment  of  priests  guilty  of 
perjury,  —  "  Si  presbyter,  alicuhi  inveniatur  in  falso  testimonio,  vel  in  perjurio,"  —  it 
would  seem  that  the  English  law  of  that  day  did  not  recognize  any  distinction  between 
them  and  the  laity,  in  regard  to  the  obligation  to  testify  as  witnesses.  See  Leges 
Baibaror.  Antiq.  vol.  iv.  p.  294 ;  Ancient  Laws  and  Inst,  of  England,  vol.  i.  p.  347, 
§27. 

■■^  Mascard.  De  Probat.  vol.  i.  Quaest.  5,  n.  61;  Id.  Concl.  377.  Vid.  et  P.  Farinac, 
Opera,  tit.  8,  QiiEEst,  78,  n.  73. 

8  Tait  on  Evidence,  pp.  386,  387  ;  Alison's  Practice,  p.  586. 


CHAP.    XIII.]       EVIDENCE    EXCLUDED    FIlOiM    PUliLIC    POLICY.  335 

solation  and  case  of  mind,"  yet  the  minister  to  whom  the  confes- 
sion is  made  is  merely  excused  from  presenting  the  offender  to 
the  civil  magistracy,  and  enjoined  not  to  reveal  the  matter  con- 
fessed, "under  pain  of  irregularity."  *  In  all  other  respects,  he 
is  loft  to  the  full  operation  of  the  rules  of  the  common  law,  by 
which  he  is  bound  to  testify  in  such  cases  as  any  other  person 
Avhcn  duly  summoned.  In  the  common  law  of  evidence  there  is 
no  distinction  between  clergymen  and  laymen;  but  all  confes- 
sions, and  other  matters  not  confided  to  legal  counsel,  must  be 
disclosed  when  required  for  the  purposes  of  justice.  Neither 
penitential  confessions,  made  to  the  minister  or  to  members  of 
the  party's  own  Church,  nor  secrets  confided  to  a  Roman  Catholic 
priest  in  the  course  of  confession^,  are  regarded  as  privileged 
communications.  ^ 

§  248.  Physicians,  confidential  clerks,  &c.  Neither  is  this  pro- 
tection extended  to  medical  persons,^  [see  note  (a)  for  statutory 

i  Const.  &  Canon,  1  Jac.  I.  Can.  cxiii.  ;  Gibson's  Codex,  p.  963. 

6  Wilson  V.  Rastall,  4  T.  R.  753  ;  Butler  v.  Moore,  McNally's  Evid.  253-255  ; 
Anon.,  Skin.  404,  per  Holt,  C.  J.  ;  Du  Barre  v.  Livette,  Peake's  Cas.  77  ;  Common- 
wealth V.  Drake,  15  Mass.  161.  The  contrary  was  held  by  De  Witt  Clinton,  Mayor, 
in  the  Court  of  General  Sessions  in  New  York,  June,  1813,  in  Peojile  v.  Phillips,  1 
Southwest.  Law  Journ.  p.  90.  By  a  subsequent  statute  of  New  York  (2  Rev.  St.  406, 
§  72),  "  No  minister  of  the  gospel,  or  priest  of  any  denomination  whatsoever,  shall  be 
allowed  to  disclose  any  confessions  made  to  him  in  his  professional  character,  in  the 
course  of  discipline  enjoined  by  the  rules  or  practici?  of  such  denomination."     This  is 


and  in  Wisconsin  (Rev.  Stat.  1849,  c.  98,  §  75)  ;  and  in  Michigan  (Rev.  Stat.  1846, 
c.  102,  §  85)  ;  and  in  Iowa  (Code  of  1851,  art.  2393).  See  also  Broad  v.  Pitt,  3  C.  & 
P.  518,  in  which  case  Best,  C.  J.,  said,  that  he  for  one  would  never  compel  a  clergy- 
man to  disclose  communications  made  to  him  by  a  prisoner  ;  but  that,  if  he  chose  "to 
disclose  them,  he  would  receive  them  in  evidence.  Joy  on  Confessions,  &c.,  pp.  49- 
58  ;  Best's  Principles  of  Evidence,  §  417-419. 

1  Duchess  of  Kingston's  Case,  11  Hargr.  St.  Tr.  243  ;  20  Howell's  St.  Tr.  643  ;  Rex 
V.  Gibbons,  1  C.  &  P.  97  ;  Broad  v.  Pitt,  3  C.  &  P.  518,  per  Best,  C.  J.  By  the 
Revised  Statutes  of  New  York  (vol.  ii.  p.  406,  §  73),  "No  person,  duly  authorized 
to  practice  physic  or  surgery,  shall  be  allowed  to  disclose  any  information  which  he 
may  have  acquired  in  attending  any  patient  in  a  professional  character,  and  which 
information  was  necessary  to  enable  him  to  prescribe  for  such  a  patient  as  a  physician, 
or  to  do  any  act  for  him  as  a  surgeon."  But  though  the  statute  is  thus  express,  yet  it 
seei!is  the  party  himself  maj'  waive  the  privilege  ;  in  which  case  the  facts  may  be  dis- 
closed. Jolnison  V.  Johnson,  14  Wend.  637.  A  consultation,  as  to  the  means  of 
procuring  abortion  in  another,  is  not  privileged  by  this  statute.  Hewitt  v.  Prime,  21 
Wend.  79.  Statutes  to  the  same  effect  have  been  enacted  in  Missouri  (Rev.  Stat.  1845, 
c.  186,  §  20)  ;  and  in  Wisconsin  (Rev.  Stat.  1849,  c.  98,  §  75)  ;  and  in  Michigan 
(Rev.  Stat.  1846,  e.  102,  §  86).  So  in  Inwa ;  in  which  State  the  privilege  extends  to 
public  officers,  in  cases  where  the  public  interest  would  suffer  by  the  disclosure.  Code 
of  1851,  arts.  2393,  2395. 

{a)  The  statements  of  the  text  in  this  by  attending  in  their  professional  charac- 

section  to  the  effect  that  the  protection  of  ters,  as  well  as  the  statement  in  the  pre- 

the  rule  of  privilege  is  not  extended  to  ceding  section   that  confessions  made  to 

medical  persons  in  regard  to  information  clergymen  or  priests  are  not  regarded  as 

which    they  have  acquired  confidentially  privileged  communications,  was  undoubt- 


336 


LAW   OF   EVIDENCE. 


[part  n. 


changes]  in  regard  to  information  which  they  have  acquired  con- 


edly  the  rule  at  the  time  the  author  wrote, 
aud  is  still  the  rule  at  common  law  ;  but 
in  a  large  number  of  States  the  rule  has 
been  changed  by  statutory  enactments,  so 
that  protection  is  given  by  statute  to  a  pa- 
tient in  regard  tointbrmation  which  his  phy- 
sician has  acquired  I'rom  him  contidentially 
in  the  course  of  the  treatment  of  his  ill- 
ness, and  to  confessions  which  may  have 
been  made  to  a  clergyman  or  priest  in  his 
professional  character.  Thus,  in  Califor- 
nia (Civil  Code,  §  ]881,  cl.  4),  a  licensed 
physician  or  surgeon  cannot,  without  the 
consent  of  the  ]>atient,  be  examined  in  a 
civil  action  as  to  any  information  acquired 
in  attending  the  patient,  which  was  n^es- 
sary  to  enable  him  to  prescribe  or  act  for 
the  patient.  And  clause  3  provides  that  a 
clergyman  or  priest  cannot,  without  the 
consent  of  the  party  making  the  confes- 
sion, be  examined  as  to  any  confession 
made  to  him  in  his  professional  character 
in  the  course  of  discipline  enjoined  by 
the  Church  to  which  he  belongs.  And  a 
similar  enactment  exists  in  Colorado  (Acts 
of  1883,  p.  289).  In  Indiana  (Rev.  Sts. 
§  497,  cl.  4),  it  is  enacted  that  physicians 
are  incompetent  witnesses  as  to  matter 
communicated  to  them  as  such  by  pa- 
tients, in  the  course  of  their  professional 
business,  or  advice  given  in  such  cases  ; 
and  clause  5  enacts  that  clergymen  are 
incompetent  witnes.ses  as  to  confessions 
or  admissions  made  to  them  in  the  course 
of  discipline  enjoined  by  their  respective 
Churches.  Gillooley  v.  State,  58  Ind. 
182.  See,  also,  Iowa  (Rev.  Code,  §  3643). 
So  in  Kansas  (Gen.  Sts.  §  4418,  cl.  5),  it 
is  enacted  that  a  clergyman  or  priest  is 
incompetent  to  testify  concerning  any  con- 
fession made  to  him  in  his  professional 
character  in  the  course  of  discipline  en- 
joined by  the  Church  to  which  he  belongs, 
without  the  consent  of  the  person  making 
the  confession  ;  and  clause  6  enacts  that  a 
physician  or  surgeon  is  incompetent  to 
testify  concerning  any  communication 
made  to  him  by  his  patient  with  reference 
to  any  physical  or  supposed  physical  dis- 
ease, or  any  knowledge  obtained  by  a  jier- 
sonal  examination  of  any  such  patient  : 
Provided,  That  if  the  patient  offer  hini.self 
as  a  witness,  that  is  to  be  deemed  a  con- 
sent to  the  examination.  Similarly,  in 
Michigan  (Howell's  Annot.  Stat.  §7515), 
it  is  enacted  that  no  minister  of  the  gos- 
pel, or  priest  of  any  denomination  wdiat- 
soever,  .shall  be  allowed  to  disclose  any 
confession  made  to  him  in  his  professional 
character  in  the  course  of  the  discipline 
enjoined  by  the  rules  or  practice  of  such 


denomination  ;  and,  in  the  succeeding  sec- 
tion (751  ti),  it  is  enacted  that  no  person 
duly  authorized  to  practice  physic  or  sur- 
gery shall  be  allowed  to  disclo.se  any  in- 
formation which  he  may  have  ac(}uired  in 
attending  any  patient  in  his  ])rol'essional 
character,  and  which  information  was 
necessary  for  him  to  prescribe  for  such  pa- 
tient as  a  physician,  or  to  do  any  act  for 
him  as  a  surgeon.  In  Minnesota  (Statutes 
of  1891,  §  5094,  cl.  3),  it  is  enacted  that  a 
clergyman  or  priest  cannot,  without  the 
consent  of  the  person  making  the  confes- 
sion, be  examined  as  to  a  coi^ession  made 
to  him  in  his  professional  character  in  the 
course  of  discipline  enjoined  by  the  Church 
to  which  he  belongs  ;  and  fourth,  that  a 
regular  physician  or  surgeon  cannot,  with- 
out the  consent  of  his  patient,  be  exam- 
ined in  a  civil  action  as  to  any  infonnation 
acquired  by  attending  the  ]iatient,  which 
was  necessaiy  to  enable  him  to  prescribe 
or  act  for  the  patient.  In  Missouri  (Rev. 
Sts.  §  8925,  cl.  4),  it  is  enacted  that  a 
minister  of  the  gospel,  or  piiest  of  any  de- 
nomination, is  .incomj)etent  to  testify  con- 
cerning a  confession  made  to  him  in  his 
professional  character  in  the  course  of  dis- 
cipline enjoined  by  the  rules  or  practice 
of  such  denomination  ;  and  fifth,  that  a 
surgeon  or  physician  is  incompetent  to 
testif}'  concerning  any  information  which 
he  may  have  acquired  fiom  any  patient 
while  attending  him  in  a  ])rofessional 
character,  and  which  information  was  nec- 
essary to  enable  him  to  prescribe  ior  such 
patient  as  a  physician,  or  to  do  any  act 
for  him  as  a  surgeon.  In  Nebraska  (Code, 
p.  672,  §  328,  cl.  5),  it  is  enacted  that  a 
clergyman  or  priest  is  incompetent  to  tes- 
tify concerning  any  information  made  to 
him  in  his  professional  character  in  the 
course  of  discijiline  enjoined  by  the  Church 
to  which  he  belongs,  without  the  consent 
of  the  person  making  the  confes.'-ion  ;  and 
§  333  enacts  that  no  jiractising  attorney, 
counsellor,  physician  or  surgeon,  minister 
of  the  gos])el,  or  priest  of  any  denomina- 
tion, shall  be  allowed,  in  giving  testimony 
to  disclose  any  confidential  communication 
properly  entrusted  to  him  to  enable  him 
to  discharge  the  functions  of  his  office  ac- 
cording to  the  usual  course  of  practice  or 
discipline.  Similarly,  in  New  York  (N. 
Y.  Code  Civ.  Proced.  §  833-836),  it 
is  enacted  that  a  clergyman,  or  other  min- 
ister of  any  denomination,  shall  not  be  al- 
lowed to  disclose  a  confession  made  to 
him  in  his  professional  character  in  the 
course  of  discipline  enjoined  by  the  rules 
or  practice  of  the  religious  body  to  which 


CHAP.    XIII.]      EVIDENCE   EXCLUDED    FROM    PUBLIC   POLICY. 


337 


fidentially,  by  attending  in  their  professional  characters;  nor  to 


he  belongs  ;  and  that  a  person  duly  au- 
tliorized  to  practice  physic  or  surgery 
shall  not  he  allowed  to  disclose  any  infor- 
mation which  he  ac([uired  in  attending  a 
patient  in  a  professional  capacity,  and 
which  was  necessary  to  enable  him  to  act 
in  that  capacity;  but  §  8;}t)  gives  the  right 
of  waiver  to  the  patient  or  person  con- 
fessing. See  also  I'eople  v.  Stout,  3 
Park.  Or.  R.  670  ;  Edington  v.  Mut.  Life 
Ins.  Co.,  67  N.  Y.  185  ;  Staunton  v. 
Parker,  19  Hun,  55.  In  Ohio  (Kev.  Sts., 
§  52  41,  cl.  1),  it  is  enacted  that  a  physi- 
cian shall  not  testify  concerning  a  connnu- 
iiication  made  to  him  by  his  patient,  in 
that  relation,  or  his  advice  to  his  patient; 
but  the  physician  may  testify  by  the  ex- 
press consent  of  the  patient  ;  and  if  the 
patient  voluntarily  testify,  the  physician 
may  be  compelled  to  testify  on  the  same 
subject  ;  and  clause  2  enacts  that  a 
clergyman  or  priest  shall  not  testify  con- 
cerning a  confession  made  to  him  in  his 
professional  character  in  the  course  of  dis- 
cipline enjoined  by  the  Church  to  which 
he  belongs.  In  Wiseonshi  (Annot.  Sts., 
§  4074)  enacts  that  a  clergyman  or  priest 
of  any  denomination  shall  not  be  allowed 
to  disclose  a  confession  made  to  him  in 
his  professional  cliaracter  in  the  course  of 
disci[tline  enjoined  by  the  rules  or  prac- 
tice of  the  religious  body  to  which  he  be- 
longs, without  the  consent  thereto  of  the 
party  confessing  ;  and  §  4075  enacts  that 
no  person  duly  authorized  to  practice 
physic  or  surgery  shall  be  compelled  to 
disclose  any  information  which  he  may 
have  acquired  in  attemling  any  patient  in 
a  professional  character,  and  which  infor- 
mation was  necessary  to  enable  him  to 
prescribe  for  such  patient  as  a  physician, 
or  to  do  any  act  for  him  as  a  surgeon. 

The  principal  point  which  these  stat- 
utes have  brought  before  the  courts  has 
been  the  question  whether  the  evidence  of 
doctors  shall  be  excluded  or  not,  in  cases 
where  the  patient  is  since  deceased. 
These  questions  arise  most  frequently  in 
cases  where  it  is  sought  to  introduce  the 
evidence  of  doctors  in  probate  proceedings 
as  to  the  mental  capacity  of  the  late  patient, 
or  in  ytroceedings  on  policies  of  insurance, 
or  in  the  proceedings  to  recover  for  the  kill- 
ing of  the  deceased.  The  question  has  been 
thoroughly  discussed  in  New  York  State 
in  several  cases.  In  the  case  of  Edington 
V.  Mutual  Life  Ins.  Co.,  67  N.  Y.  185, 
the  defendant  company-attempted  to  in- 
troduce evidence  of  the  physician  of  the  de- 
ceased against  the  objection  of  the  personal 
representative  of  the   deceased  ;   and  the 


court  held  that  the  evidence  came  under 
the  statute  and  was  protected,  and  that 
this  protection  could  be  claimed  by  the 
personal  representative  of  the  deceased. 
In  a  later  case  (Westover  v.  iEtua  Ins. 
Co.,  99  N.  Y.  57),  the  action  was  on  the 
life  insurance  policy  issued  to  the  plain- 
tiffs testator.  It  was  provided  in  the 
polic}-  that  it  should  be  void  if  the  insured 
should  commit  suicide  or  die  by  his  own 
hand.  The  insured  hung  himself.  In  the 
course  of  the  trial  the  plaintiff  called  a 
physician  who  had  known  the  insured  for 
a  long  time,  and  wIkj  had  attended  him 
professionally  a  short  time  before  his 
death  ;  and  the  physician  was  asked  how 
he  found  the  testator  when  he  visited  him. 
This  question  was  objected  to  by  the 
counsel  for  the  defendant,  on  the  ground 
that  the  evidence  was  incomjietent  under 
§  834  of  the  Code.  The  court  held  in  thia 
case  that  the  privilege  could  not  be  waived 
bj'  the  personal  representative  of  the  de- 
ceased, and  discusses  the  rule  as  follows : 
"  The  purpose  of  the  laws  would  be 
thwarted,  and  the  policy  intended  to  be 
promoted  thereby  would  be  defeated,  if 
death  removed  the  seal  of  secrecy  from 
the  communications  and  disclosures  which 
a  paticTit  should  make  to  his  physician, 
or  a  client  to  his  attorney,  or  a  penitent 
to  his  priest.  Whenever  the  evidence 
comes  within  the  purview  of  the  statute, 
it  is  absolutely  prohibited,  and  may  be 
objected  to  by  any  one  unless  it  be  waived 
by  the  person  for  whose  benefit  and  pro- 
tection the  statutes  were  enacted."  See 
also  ante,  §  243,  note. 

In  a  later  case  (Renihan  v.  Dennin, 
103  N.  Y.  577),  the  same  point  arose  on 
an  appeal  from  the  decree  of  the  surro- 
gate, probating  the  will  of  James  Deimin, 
deceased.  The  attending  physician  of  the 
testator  requested  another  physician  to  be 
present  at  the  testator's  house  shortly  be- 
fore his  death,  for  consultation  relative  to 
treating  the  testator.  The  consulting 
physician  was  put  on  the  witness-stand  by 
the  contestants  of  the  will,  and  asked  sev- 
eral questions  relating  to  the  condition  of 
the  testator  as  to  understanding  and  capac- 
ity for  making  the  will  at  the  time  when 
the  consulting  physician  saw  him.  These 
questions  were  objected  to,  and  the  evi- 
dence excluded.  On  appeal  to  the  Court 
of  Appeals,  the  decision  was  sustained, 
and  the  court  held  that,  the  consulting 
physician  being  a  duly  authorized  physi- 
cian, whatever  information  he  acquired 
while  attending  the  testator,  in  reference 
to  his   treatment,    was   privileged.      The 


VOL.   I. 


22 


338 


LAW   OF   EVIDENCE. 


[part  II. 


confidential  friends,-  clerks,^  bankers,^  or  stewards,^  except  as  to 

2  4  T.  R.  758,  per  Ld.  Kenyon  ;   Hoffman  v.  Smith,  1  Caines,  157,  159. 
8  Lee  V.  Birrell,  3  Cainpb.  337  ;  Webb  v.  Smith,  1  C.  &  P.  337. 
*  Loyd  V.  Fieshfield,  2  C.  &  P.  325. 

5  ValUant  v.  Dodemead,  2  Atk.  524  ;  4  T.  R.  756,  per  Buller.  J.  ;   E.  of  Falmouth 
V.  Moss,  11  Price,  455. 


court  in  this  case  says:  "  It  is  true  that 
tlie  testator  did  not  call  him  or  procure 
his  attendance.  But  he  did  not  thrust 
himself  into  his  ]irpsence,  or  intrude 
there.  He  was  called  by  the  attending 
physician  and  went  in  his  professional 
capacity  to  see  the  patient,  and  that  was 
enough  to  bring  the  case  within  the  stat- 
ute. It  is  quite  common  for  physicians 
to  be  summoned  by  the  friends  of  the  pa- 
tient, or  even  by  strangers  about  him,  and 
the  statute  would  be  robbed  of  much  of 
its  virtue  if  a  [)hysician  tlius  called  were 
to  be  excluded  from  its  provisions,  be- 
cause, as  contended  by  the  learned  counsel 
for  the  appellant,  he  was  not  employed 
liy  the  patient,  nor  a  contract  relation 
created  between  liim  and  the  patient.  To 
bring  the  case  within  the  statute,  it  is  suf- 
fifieiit  that  the  person  attended  as  a  phy- 
sician upon  a  patient,  and  obtained  his 
information  in  that  capacity."  The  claim 
was  made  in  this  case  that  the  statute  in 
question  should  not  apply  to  testamentary 
cases  on  account  of  the  inconveniences 
which  would  undoubtedly  be  caused  by 
such  a  construction;  but  the  court  refused 
to  entertain  this  view,  and  held  that  the 
statute  applied  to  testamentary  cases  as 
well  as  all  others  ;  and  this  view  was  sup- 
ported in  the  later  case  of  Loder  i>.  Whelp- 
ley,  111  N.  Y.  245.  In  the  case  of  Renihan 
?>.  Dennin,  supra,  a  claim  was  also  made 
that  the  statute  could  only  apply  to  dis- 
closures of  a  confidential  nature  ;  but  the 
court  overruled  this  claim,  and  held  that 
the  statute  should  be  given  the  broad 
effect  which  its  plain  language  demanded. 
The  court  adverts,  in  its  opinion,  to  the 
inconvenience  in  appljnng  the  statute  in 
testamentary  cases,  and  says:  "It  is 
probably  true  that  the  statute,  as  we  feel 
obliged  to  construe  it,  will  work  consid- 
erable Tuischief.  In  testamentary  cases, 
where  the  contest  relates  to  the  comjie- 
tency  of  the  testator,  it  will  exclude  evi- 
dence of  physicians  which  is  generally  the 
most  important  and  decisive.  In  actions 
upon  policies  of  life  insurance,  where  the 
inquiry  relates  to  the  health  and  physical 
condition  of  the  insured,  it  will  exclude 
the  most  reliable  and  vital  evidence  which 
Is  absolutely  needed  for  the  ends  of  jus- 
tice." But  these  inconveniences  seem  to 
be  somewhat  mitigated  by  the  decision  of 


the  court  in  Hoyt  v.  Hoyt,  112  N.  Y. 
513,  to  the  effect  that,  although  the  priv- 
ilege may  not  be  waived,  yet  the  evidence 
must  be  seasonably  objected  to  by  any 
person  who  wishes  to  have  it  excluded. 
In  the  later  case  of  McKinney  v.  Grand 
St.,  &c.,  R.  R.  Co.,  104  N.  Y.  355,  the 
defendant  called  as  a  witness  a  physician 
who  had  made  a  personal  examination  of 
the  plaintiff  while  visiting  her  as  a  pa- 
tient, and  jiroceeded  to  prove  by  him  the 
nature  of  the  injuries  suffered  by  the 
plaintiff.  Upon  a  previous  trial  of  the  same 
action  the  same  doctor  had  been  called 
by  the  plaintiff,  and  had  testified  fully  in 
her  behalf  as  to  all  the  facts  bearing  ujwn 
her  physical  condition  as  learned  by  him 
in  his  attendance  upon  her.  The  court 
held  that  the  doctor  having  so  testified  at 
the  request  of  the  jdaintifl',  the  privilege 
had  been  waived  by  her  and  could  not 
afterwards  be  asserted.  In  the  case  of 
Loder  v.  Whelidey,  111  N.  Y.  245,  the 
proponents  of  a  will  offered  the  testimony 
of  three  physicians  who  had  attended  the 
testatrix,"  as  to  her  health  while  under 
their  observation.  The  contestants  then 
called  another  physician  who  had  attended 
her  subsequently,  and  asked  him  similar 
questions.  The  court  said  that  the  objec- 
tion to  such  evidence  might  be  made  by 
any  party,  but  the  case  was  decided  on 
other  grounds.  In  the  case  of  Coleman's 
Will,  111  N.  Y.  225,  the  contestants  of- 
fered evidence,  in  the  testimony  of  two 
attending  physicians  of  the  testator,  to 
})rove  his  lack  of  testamentary  capacity. 
The  evidence  was  admitted  by  the  surro- 
gate, but,  on  appeal,  the  court  held  the 
evidence  inadmissible.  In  the  case  of 
Hovt  V.  Hoyt,  112  N.  Y.  513,  the  propo- 
nen'ts  of  a  will  introduced  the  testimony 
of  three  attending  physicians  of  the  testa- 
tor. The  court  in  this  case  again  stated 
the  principle  that,  although  the  privilege 
could  not  be  waived  after  the  death  of  the 
patient,  yet  that  a  failure  to  object  to  the 
evidence  upon  its  offer  in  court  woiild 
bind  the  party  failing  to  make  such  objec- 
tion, anil  that  he  could  not  afterwards 
insist  upon  the  incompetency  of  the  testi- 
mony. The  courts  say  :  "  the  contestant 
could  not  sit  by  during  the  examination 
of  the  physicians,  and  after  their  evidence 
had    been    elicited    by  examination   and 


:HAP.    XIII.]       EVIDENCE   EXCLUDED    FROM   PUBLIC   POLICY. 


539 


matters  which  the  employer  himself  would  not  be  obliged  to  dis- 


cross-exaniinatioii,  upon  finding  it  in- 
jurious to  her  case,  claim  as  a  legal  right 
to  have  it  stricken  out.  Th(;re  are  bounds 
to  the  enforcement  of  the  statutory  pro- 
visions which  will  not  be  disregarded  at 
the  instance  of  a  party  who,  being  entitled 
to  their  benefit,  has  waived  or  omitted  to 
avail  himself  of  them.  It  is  perfectly  true 
that  public  policy  has  dictated  the  enact- 
ment of  the  Code  provisions  by  which  the 
communications  of  patient  and  client  are 
privileged  from  disclosure  ;  but  the  privi- 
lege must  be  claimed,  and  the  proposed 
evidence  must  be  seasonably  objected  to. 
The  rule  of  evidence,  which  excludes  the 
communications  between  physician  and 
patient,  must  be  invoked  by  an  objection 
at  the  time  the  evidence  of  the  witness  is 
given.  It  is  too  late,  after  the  examina- 
tion has  been  insisted  upon  and  the  evi- 
dence has  been  received  without  objection, 
to  raise  the  question  of  competency  by  a 
motion  to  strike  it  out."  In  the  later 
case  of  Feeney  v.  Long  Island  K.  R.  Co., 
116  N.  Y,  380,  the  question  discussed 
was  what  proof  is  necessary  of  the  exist- 
ence of  the  relation  of  doctor  and  patient 
before  the  evidence  can  be  excluded.  The 
facts  in  that  case  were  these  :  A  witness 
sworn  for  the  defendant  testified  that  he 
was  a  practicing  physician,  and  that  on 
the  day  after  the  accident  the  plaintiff 
called  upon  and  consulted  him.  He  was 
then  asked  by  defendant's  counsel  if  he 
conversed  with  her  about  her  injuries,  and 
if  he  made  an  examination  of  her.  The 
court  sustained  the  objection  made  in  be- 
half of  the  plaintiff  that  these  questions 
called  for  a  privileged  communication.  It 
was  urged  that  the  objection  was  prema- 
ture, because  it  did  not  appear  that  the 
information  called  for  was  such  as  was 
necessary  to  enable  the  witness  to  act  in 
a  professional  capacity.  The  court  says  : 
"  The  language  of  the  court  in  Edington 
V.  Mutual  Life  Insurance  Co.  (67  N.  Y. 
185,  194),  may  be  repeated  in  answer  to 
this  position.  The  point  made  that  there 
was  no  evidence  that  the  information 
asked  for  was  essential  to  enable  the  phy- 
sician to  prescribe  is  not  well  taken,  as  it 
must  be  assumed  from  the  relationship 
existing,  that  the  information  would  not 
have  been  imparted  except  for  the  purpose 
of  aiding  the  physician  in  prescribing  for 
the  patient.  Aside,  however,  from  this, 
the  statute  in  question  being  remedial 
should  receive  a  liberal  interpretation, 
and  not  be  restricted  by  any  technical 
rule."  And  in  Grattan  v.  Metropolitan 
Life  Insurance  Co.  (80  N.  Y.  281,  297), 


the  court  said  :  "  Nor  was  it  necessary 
for  the  plaintitf  to  show,  in  the  first  in- 
stance, by  formal  proof  that  the  informa- 
tion was  necessary  to  enable  the  witness 
to  prescribe.  Such,  under  the  circum- 
stances of  this  case,  is  the  inevitable  in- 
ference." The  fact  that  the  plaintiff 
consulted  the  physician  on  the  occasion  to 
which  the  inquiries  related,  when  consid- 
ered in  connection  with  the  nature  of  the 
questions  themselves,  is  sufficient  in  the 
abscnice  of  other  proof  to  bring  them  with- 
in the  prohibition  of  the  statute.  Code 
Civ.  Pro.,  §  834  ;  Renihan  v.  Dennin,  103 
N.  Y.  573. 

In  a  recent  case  in  Indiana  (Heuston 
V.  Simpson,  115  Ind.  62),  the  question  of 
the  admission  of  a  jjliysician's  testimony 
in  testamentary  cases  was  discussed,  and 
it  was  held  in  accordance  with  decisions 
in  New  York,  which  were  fully  quoted, 
that  the  statute  covered  such  testimony, 
and  upon  proper  objection  by  the  party 
who  wished  to  exclude  it,  it  must  be  ex- 
cluded ;  but  in  a  later  case  (Morris  v. 
Morris,  119  Ind.  343),  the  court  held  that 
the  legal  representative  of  the  i)atient 
might  waive  the  privilege  ;  this  decision 
being  directly  contrary  to  the  New  York 
decisions.  A  further  limitation  to  this 
rule  exists  in  New  York,  where  it  is  held 
that  the  privilege  does  not  extend  to  in- 
formation as  to  the  patient's  condition, 
either  mental  or  physical,  gained  by  a 
doctor  who  is  sent  to  make  an  examina- 
tion of  a  prisoner's  mental  or  physical 
condition  in  jail,  provided  the  testimony 
does  not  include  conversations  with  the 
prisoner,  or  transactions  in  the  jail.  If  the 
doctor  simply  testifies  as  to  his  opinion 
of  a  person's  mental  or  physical  condi- 
tion as  he  saw  him  in  his  cell  or  in  the 
court-room,  the  evidence  is  unobjection- 
able. People  V.  Keramler,  119  N.  Y.  585. 
The  privilege  of  the  statute  is  generally 
interpreted  broadly  by  the  courts  so  as  to 
cover  all  information  gained  by  a  doctor 
while  attending  his  patient,  whether  it 
relates  to  the  condition  of  the  patient  or 
how  his  condition  was  brought  about,  or 
facts  observed  by  the  doctor  in  attending 
on  the  patient.  Kling  v.  Kansas  City,  27 
Mo.  App.  231  ;  Streeter  v.  Breckenridge, 
23  Mo.  App.  244  ;  Grattan  v.  Metropoli- 
tan Ins.  Co,,  80  N.  Y.  297,  The  prohi- 
bition also  extends  to  the  partner  of  the 
doctor,  who  occupies  the  same  office  and 
consults  with  the  patients  in  the  absence 
of  the  other,  if  the  patient,  under  such 
circumstances,  informs  the  partner  in  rela- 
tion   to    his    injuries.      iEtna    Life    Ins. 


340 


LAW   OP   EVIDENCE. 


[part  II. 


close,  such  as  his  title-deeds  and  private  papers,   in  a  case  in 
which  he  is  not  a  party,  (h) 

§  249.  Judges  and  arbitrators.  The  case  oi  Judges  and  arbitra- 
tors may  be  mentioned,  as  the  second  class  of  privileged  commu- 
nications. In  regard  to  judges  of  courts  of  record,  it  is  considered 
dangerous  to  allow  them  to  be  called  upon  to  state  what  occurred 
before  them  in  court;  and  on  this  ground,  the  grand  jury  were 
advised  not  to  examine  the  chairman  of  the  Quarter  Sessions  as 
to  what  a  person  testified  in  a  trial  in  that  court.  ^  The  case  of 
arbitrators  is  governed  by  the  same  general  policy ;  and  neither 
the  courts  of  law  nor  of  equity  will  disturb  decisions  deliberately 
made  by  arbitrators,  by  requiring  them  to  disclose  the  grounds  of 
their  award,   unless  under  very  cogent  circumstances,  such  as 


1  Reg.  V.  Gazard,  8  C.  &  P.  595,  per  Patteson,  J.  ;  People  v.  Miller,  2  Parker   C. 
E.  197. (a) 


Co.  V.  Deming,  123  Ind.  384.  As  pre- 
viously stated,  it  should  be  remembered 
that  the  objection  to  the  competency  of 
this  evidence  may  be  raised  by  any  party 
to  the  action  in  which  it  is  offered,  and  if 
it  is  not  so  objected  to  by  him  he  will 
thereafter  be  prevented  from  attacking  its 
competency. 

In  Michigan,  several  cases  have  been 
argued  upon  the  question  whether,  if  the 
patient  states,  for  a  fact,  tliat  a  certain 
physician  attended  him,  the  physician  can 
be  put  on  to  contradict  the  witness  as  to 
this  fact.  In  the  case  of  Brown  r.  Metro- 
politan Life  Ins.  Co.,  65  Mich.  306,  the 
patient  testified  that  a  Dr.  H.  had  treated 
her  for  typhoid  fever,  and  it  was  held  that 
the  doctor  could  be  allowed  to  testify  that 
he  had  not  so  treated  her.  In  the  case  of 
Campau  v.  North,  39  Mich.  606,  the 
plaintiff  testified  in  her  own  behalf  in  an 
action  against  the  defendant  for  injuries 
received  by  her  through  the  negligence  of 
the  defendant.  On  cross-examination  the 
plaintiff  denied  that  she  ever  admitted  to 
jher  attending  physician  that  she  had  re- 
ceived serious  injuries  before  the  injury 
for  which  she  sought  to  recover  damages 
from  the  defendant.  The  physician  was 
thereupon  called  by  the  defendant  to  con- 
tradict her  on  this  point.  The  court  ad- 
mitted the  physician,  but  not  on  the 
ground  that  the  plaintiff  by  her  testimony 
had  waived  the  provisions  of  the  statute, 
but  that  it  did  not  appear  that  the  admis- 
sion in  question  was  made  as  information 
necessary  to  enable  the  doctor  to  prescribe 


for  her  as  a  physician,  or  to  do  any  act  for 
her  as  a  surgeon.  See,  also,  Grand  Rapids, 
&c.,  R.  R.  Co.  V.  Martin,  41  Mich.  667. 
If  a  party  claims  to  exclude  evidence  as 
coming  under  this  prohibition,  he  must 
show  the  relation  of  physician  to  patient 
to  have  existed  (Peo)ile  v.  Schuyler,  106 
N.  Y.  303),  and  the  rule  does  not  apply  in 
criminal  cases.  Pierson  v.  People,  18  Hun, 
239. 

(b)  The  protection  of  this  rule  has 
sometimes  been  claimed  for  telegraphic 
despatches,  but  the  courts  have  not 
yielded  to  the  claim.  The  analogy  of  a 
telegraphic  message  to  a  letter  passing 
through  the  mails  has  been  urged,  but  the 
exemption  of  such  letters  depends  on  a 
special  act  of  Congress,  and  until  such  an 
act  is  applied  to  telegraphic  messages,  it  is 
the  rule  of  law  that  the  message  is  not 
jirotected,  and  the  operator  may  be  called 
to  prove  it.  State  v.  Litchfield,  58  Me. 
267  ;  National  Bank  •  v.  National  Bank, 
7  "W.  Ta.  544. 

As  to  what  is  the  original  of  a  tele- 
graphic message,  see  ante,  §  101. 

(«)  A  judge  is  competent  to  testify  to 
such  matters.  Reg.  v.  Gazard,  8  C.  &  P. 
595  ;  State  v.  Duffy,  57  Conn.  525  ;  Huff 
V.  Bennett,  4  Sandf.  (N.  Y.)  120  ;  Schall 
V.  Miller,  5  Whart.  (Pa.)  156.  In  Ex  parte 
Gillebrand,  L.  R.  10  Ch.  52,  the  county 
court  judges'  notes  of  the  evidence  were 
used  as  evidence  on  appeal,  when  the)'  were 
verified,  and  were  held  to  exclude  other 
evidence  as  to  what  evidence  was  given  at 
the  trial. 


CHAP,    XIII.]       EVIDENCE   EXCLUDED    FROM    PUBLIC   POLICY.  341 

upon  an  allegation  of  fraud;  for,    "Interest   reipublicaj  ut  sit 
finis  litium."2(6) 

§  250.  state  secrets.  We  now  proceed  to  the  tliird  class  of 
cases,  in  which  evidence  is  excluded  from  motives  of  public 
policy,  namely,  secrets  of  state,  or  things,  the  disclosure  of  which 
would  be  prejudicial  to  the  public  interest.  These  matters  are 
either  those  which  concern  the  administration  of  penal  justice, 
or  those  which  concern  the  administration  of  government;  but 
the  principle  of  public  safety  is  in  both  cases  the  same,  and  the 
rule  of  exclusion  is  applied  no  further  than  the  attainment  of 
that  object  requires,  (a)  Thus,  in  criminal  trials,  the  names  of 
persons  employed  in  the  discovery  of  the  crime  are  not  permitted 
to  be  disclosed,  any  farther  than  is  essential  to  a  fair  trial  of  the 
question  of  the  prisoner's  innocence  or  guilt. ^  "It  is  perfectly 
right,"  said  Lord  Chief  Justice  Eyre,^  "that  all  opportunities 
should  be  given  to  discuss  the  truth  of  the  evidence  given  against 
a  prisoner ;  but  there  is  a  rule  which  has  universally  obtained, 
on  account  of  its  importance  to  the  public  for  the  detection  of 
crimes,   that  those  persons  who  are  the   channel  by  means  of 

2  Story,  Eq.  PL  458,  n.  (1)  ;  Anon.,  3  Atk.  644  ;  2  Story,  Eq.  Jurisp.  680  ;  John- 
sou  V.  Duraut,  4  G.  &  P.  327 ;  Ellis  v.  Saltau,  Id.  n.  (a)  ;  Haberslion  v.  Troby,  3  Esp. 
38. 

1  Rex  V.  Hardy,  24  Howell's  St.  Tr.  753.  The  rule  has  been  recently  settled,  that, 
in  a  public  prosecution,  no  question  can  be  put  which  tends  to  reveal  who  was  the 
secret  informer  of  the  government ;  even  though  the  question  be  addressed  to  a  witness 
in  order  to  ascertain  whether  he  was  not  himself  the  informer.  Att.-Gen.  v.  Briant,  15 
Law  Journ.  n.  s.  Exch.  26.5  ;  5  Law  Mag.  N.  s.  333. 

2  In  Rex  V.  Hardy,  24  Howell's  St.  Tr.  808. 

{b)  See  post,  vol.  ii.  §  78,  and  notes  ;  the  defendant  against  any  unjust  inference 

Phillii»s  V.  Murblehead,  148  Mass.  326.  which  migiit  be  drawn  from  the  result  of 

(a)  Gray,  J.,  in  Worthington  v.  Scrib-  such  examination,  be  required  to  state  the 
ner,  109  Mass.  487,  says :  "  Courts  of  jus-  whole  of  that  conversation.  Mr.  Stephen 
tice,  therefore,  will  not  compel  or  allow  (Digest  of  Evid.  art.  113)  explains  the  ef- 
the  discovery  of  such  information  either  feet  of  that  case  to  be  only  that  the  judge, 
by  the  subordinate  officer  to  whom  it  is  in  ordinary  criminal  prosecutions,  will  de- 
given,  by  the  informer  himself,  or  by  any  cide  whether  the  permission  of  any  such 
other  person,  without  the  permission  of  question  would  qr  would  not,  under  the 
the  government."  This  case  contains  a  circumstances  of  the  particular  case,  be  in- 
full  review  of  the  leading  authorities  on  jurious  to  the  administration  of  justice, 
this  subject,  and  criticises  the  case  of  Re-  Cf.  on  this  point,  Oliver  v.  Pate,  43  Ind. 
gina  V.  Richardson,  3  F.  &  F.  693,  where  132.  The  principle  stated  by  the  author 
a  policeman  was  compelled  to  answer,  on  in  this  section  has  been  in  some  States 
cross-examination,  from  whom  he  had  re-  enacted  as  a  statute.  Thus,  in  California 
ceived  information  in  consequence  of  which  (Civ.  Code,  §  1881,  cl.  5),  it  is  enacted 
he  found  the  poison  in  a  place  used  by  the  that  a  public  officer  cannot  be  examined 
defendant.  Gray,  J.,  says,  this  case,  if  as  to  connnunications  made  to  him  in  offi- 
maintained  at  all,  must  be  upon  the  ground  cial  conlidence  when  the  public  interests 
that  the  witness  had  already  been  examined  would  sutler  by  the  disclosure.  And  the 
by  the  government  as  to  part  of  the  con-  same  rule  is  enacted  in  Colorado  (Acts  of 
versation  between  him  and  the  informer,  1883,  p.  289,  §  3,  cl.  5),  and  Minne.'^ota. 
and  might  therefore,  for  the  protection  of  Stats.  §  5094,  and  Nebraska,  Code,  §  335. 


342  LAW    OF    EVIDENCE.  [PART    II. 

which  that  detection  is  made  should  not  be  unnecessarily  dis- 
closed. "  Accordingly,  where  a  witness,  possessed  of  such  knowl- 
edge, testified  that  he  related  it  to  a  friend,  not  in  office,  who 
•jadvised  him  to  communicate  it  to  another  quarter,  a  majority  of 
the  learned  judges  held  that  the  witness  was  not  to  be  asked  the 
name  of  that  friend ;  and  they  all  were  of  opinion  that  all  those 
questions  which  tend  to  the  discovery  of  the  channels  by  which 
the  disclosure  was  made  to  the  officers  of  justice,  were,  upon  the 
general  principle  of  the  convenience  of  puljlic  justice,  to  be  sup- 
pressed; that  all  persons  in  that  situation  were  protected  from 
the  discovery ;  and  that,  if  it  was  objected  to,  it  was  no  more  com- 
petent for  the  defendant  to  ask  the  witness  who  the  person  was 
that  advised  him  to  make  a  disclosure,  than  to  ask  who  the  per- 
son was  to  whom  he  made  the  disclosure  in  consequence  of  that 
advice,  or  to  ask  any  other  question  respecting  the  channel  of 
communication,  or  all  that  was  done  under  it."  Hence  it  ap- 
pears that  a  witness,  who  has  been  employed  to  eollect  informa- 
tion for  the  use  of  government,  or  for  the  purposes  of  the  police, 
will  not  be  permitted  to  disclose  the  name  of  his  employer,  or  the 
nature  of  the  connection  between  them,  or  the  name  of  any  per- 
son who  was  the  channel  of  communication  with  the  government 
or  its  officers,  nor  whether  the  information  has  actually  reached 
the  government.  But  he  may  be  asked  whether  the  person  to 
whom  the  information  was  communicated  was  a  magistrate  or 
not.  4 

§  251.  Communications  between  State  officials.  On  a  like  prin- 
ciple of  public  policy,  the  official  transactions  between  the  heads 
of  the  departments  of  state  and  their  subordinate  officers  are  in 
general  treated  as  privileged  communications.  Thus,  communi- 
cations between  a  provincial  governor  and  his  attorney-general, 
on  the  state  of  the  colony,  or  the  conduct  of  its  officers ;  ^  (a)  or 

8  Rex  V.  Hardy,  24  Howell's  St.  Tr.  808-815,  per  Ld.  C.  J.  Eyre  ;  Id.  815-820. 

♦  1  Phil.  Evid.  180,  181  ;  Rex  v.  Watson,  2  Stark.  136  ;  32  Howell's  St.  Tr.  101  ; 
United  States  v.  Moses,  4  Wash.  C.  C.  726  ;  Home  v.  Lord  F.  C.  Bentinck,  2  Brod. 
&  Bing.  130,  162  ;  per  Dallas,  C.  J. 

1  Wyatt  V.  Gore,  Holt's  N.  P.  Cas.  299. 

(a)   So,    a  communication   between   a  3  C.  &  K.  75.     In  a  somewhat  recent  case 

United  States  district  attorney  and  the  at-  (Beatson  v.  Skene,   5  H.  &  N.  838),  it  is 

toruey-general,  respecting  the  conduct  of  said,  the  head  of  the  department  will  judge 

cases  in  the  scope  of  their  duties.     United  of  the  propriety  of  withholding  state  se- 

States  V.  Six  Lots  of  Ground,   1   Woods,  crets  in  the  first  instance ;  and  unless  such 

C.   C.   234.     In  England,   no   member  of  officer  refers  the  question  to  the  court,  it 

the  Lords  or  Commons,  or  officer  of  either  will  not  enforce  the  disclosure  of  such  se- 

house,  can  be  compelled  to  disclose  what  crets  without  very  conclusive  evidence  that 

takes  place  there.     Plunkett  v.   Cobbett,  it  may  be  done  without  prejudice  to  the 

29  How.  St.  Tr.  71  ;  Chubb  v.  Salomons,  public  service. 


CHAP.    XIII.]       EVIDENCE   EXCLUDED    FROM   PUBLIC   POLICY.  343 

between  such  governor  and  a  military  officer  under  his  authority  ;2 
the  report  of  a  military  commission  of  inquiry  made  to  the  com- 
mander-in-chief;^ and  the  correspondence  between  an  agent  of 
the  government  and  a  Secretary  of  State,*  —  are  confidential  and 
privileged  matters,  which  the  interests  of  the  State  will  not  per- 
mit to  be  disclosed.  The  President  of  the  United  States,  and  the 
governors  of  the  several  States,  are  not  bound  to  produce  papers 
or  disclose  information  communicated  to  them,  when,  in  their 
own  judgment,  the  disclosure  would,  on  public  considerations, 
be  inexpedient.^  And  where  the  law  is  restrained  by  public  policy 
from  enforcing  the  production  of  papers,  the  like  necessity  re- 
strains it  from  doing  what  would  be  the  same  thing  in  effect ; 
namely,  receiving  secondary  evidence  of  their  contents.^  But 
communications,  though  made  to  official  persons,  are  not  privi- 
leged where  they  are  not  made  in  the  discharge  of  any  public 
duty ;  such,  for  example,  as  a  letter  by  a  private  individual  to  the 
chief  secretary  of  the  post-mastcr-general,  complaining  of  the 
conduct  of  the  guard  of  the  mail  towards  a  passenger.^ 

§  252.  Proceedings  of  grand  jurors.  For  the  same  reason  of 
public  policy,  in  the  furtherance  of  justice,  the  proceedini^s  of 
grand  jurors  are  regarded  as  privileged  communications.  It  is 
the  policy  of  the  law,  that  the  preliminary  inquiry,  as  to  the 
guilt  or  innocence  of  a  party  accused,  should  be  secretly  con- 
ducted; and  in  furtherance  of  this  object  every  grand  juror  is 
sworn  to  secrecy.  One  reason  may  be,  to  prevent  the  escape  of 
the  party  should  he  know  that  proceedings  were  in  train  against 
him;  another  may  be,  to  secure  freedom  of  deliberation  and 
opinion  among  the  grand  jurors,  which  would  be  impaired  if  the 
part  taken  by  each  might  be  made  known  to  the  accused,     A 

2  Cooke  f.  Maxwell,  2  Stark.  183. 

3  Home  V.  Lord  F.  C.  Bentinck,  2  Brod.  &  Bing.  130. 

*  Anderson  v.  Hamilton,  2  Brod.  &  Bing.  156,  n.  ;  2  Stark.  IS.*),  per  Lord  Ellen- 
borough,  cited  by  the  Attorney-General  ;  Marbury  v.  Madison,  1  Cranch,  144. 

&  1  Burr's  Trial,  pp.  186,  187,  per  Marshall,  C.  J. ;  Gray  v.  Tentland,  2  S.  &  R.  23. 

0  Gray  v.  Pentland,  2  S.  &  R.  23,  31,  32,  per  Tilghman,  C.  J.,  cited  and  approved 
in  Yoter  v.  Sanno,  6  Watts,  166,  per  Gibson,  C.  J.  lu  Law  v.  Scott,  5  Har.  &  J.  438, 
it  seems  to  have  been  held,  that  a  senator  of  the  United  States  may  be  examined,  as  to 
what  transpired  in  a  secret  executive  session,  if  the  Senate  has  refused,  on  the  party's 
application,  to  remove  the  injunction  of  secrecy.  Scd  qiucre,  for  if  so,  the  object  of  the 
rule,  in  the  preservation  of  State  secrets,  may  generally  be  defeated.  And  see  Plunkett 
V.  Cobbett,  29  Howell's  St.  Tr.  71,  72  ;  s.  c.  5  Esp.  136,  where  Lord  EUenborongli 
held,  that  tliough  one  member  of  Parliament  may  be  asked  as  to  the  fact  that  another 
member  took  pait  in  a  debate,  yet  he  was  not  bound  to  relate  anything  which  had 
been  delivered  by  such  a  speaker  as  a  member  of  Parliament.  But  it  is  to  ho  observed, 
tliat  this  was  placed  by  Lord  Ellenborough  on  the  ground  of  personal  privilege  in  the 
member  ;  whereas  the  transactions  of  a  session,  after  strangers  are  excluded,  are  placed 
under  an  injunction  of  secrecy  for  reasons  of  State. 

T  Blake  v.  Pilfold,  1  M.  &  Rob.  198. 


344  LAW   OF   EVIDENCE.  [PART  II. 

third  reason  may  be,  to  prevent  the  testimony  produced  before 
them  from  being  contradicted  at  the  trial  of  the  indictment,  by 
subornation  of  perjury  on  the  part  of  the  accused.  The  rule  in- 
eludes  not  only  the  grand  jurors  themselves,  but  their  clerk, ^ 
if  they  have  one,  and  the  prosecuting  officer,  if  he  is  present  at 
their  deliberations  ;2  all  these  being  equally  concerned  in  the 
administration  of  the  same  portion  of  penal  law.  They  are  not 
permitted  to  disclose  who  agreed  to  find  the  bill  of  indictment, 
or  who  did  not  agree ;  nor  to  detail  the  evidence  on  which  the 
accusation  was  founded. ^  («)  But  they  may  be  compelled  to  state 
whether  a  particular  person  testified  as  a  witness  before  the  grand 
jury;*  though  it  seems  they  cannot  be  asked  if  his  testimony 
there  agreed  with  what  he  testified  upon  the  trial  of  the  indict- 
ment. °     Grand  jurors  may  also  be  asked,  whether  twelve  of  their 

1  12  Vin.  Abr.  38,  tit.  Evid.  B,  a,  pi.  5  ;  Trials  per  Pais,  315. 

2  Commonwealth  v.  Tilden,  cited  in  2  Stark.  Evid.  232,  n.  (1),  by  Metcalf ; 
McLellan  v.  Richardson,  1  Shepl.  82.  But  on  the  trial  of  an  indictment  for  perjury, 
committed  in  giving  evidence  before  the  grand  jury,  it  has  been  held,  that  another 
person,  who  was  present  as  a  witness  in  the  same  matter,  at  the  same  time,  is  com- 
petent to  testify  to  what  the  prisoner  said  before  the  grand  jury  ;  and  that  a  police- 
officer  in  waiting  was  competent  for  the  same  purjiose  ;  neither  of  these  being  sworn  to 
secrecy.     Reg.  v.  Hughes,  1  Car.  &  Kir.  519. 

3  Sykes  v.  Dunbar,  2  Selw.  N.  P.  815  [1059]  ;  Huidekoperv.  Cotton,  3  Watts,  56  ; 
McLeUan  v.  Richardson,  1  Shepl.  82  ;  Low's  Case,  4  Greenl.  439,  446,  453  ;  Burr's 
Trial  [Anon.],  Evidence  for  Deft.  p.  2. 

*  Sykes  v.  Dunbar,  2  Selw.  N.  P.  815  [1059]  ;  Huidekoper  v.  Cotton,  3  Watts,  56  ; 
Freeman  v.  Arkell,  1  C.  &  P.  135,  137,  n.  c. 

5  12  Vin.  Abr.  20,  tit.  Evidence,  H  ;  Imlay  v.  Rogers,  2  Halst.  347.  The  rule  in  the 
text  is  applicable  only  to  civil  actions.  In  the  case  last  cited,  which  was  trespass,  the 
question  aro.se  on  a  motion  for  a  new  trial,  for  the  rejection  of  the  grand  juror,  who 
was  offered  in  order  to  discredit  a  witness  ;  and  the  court  being  equally  divided,  the 
motion  did  not  prevail.  Probably  such  also  was  the  natnre  of  the  case  in  Clayt.  84, 
pi.  140,  cited  by  Viner.  But  where  a  witness  before  the  grand  jury  has  committed 
perjury  in  his  testimony,  either  before  them  or  at  the  trial,  the  reasons  mentioned  ia 
the  text  for  excluding  the  testimony  of  grand  jurors  do  not  prevent  them  from  being 

(a)  The  competency  of  a  grand  juror  to  was  important.    New  Hampshire  Fire  Ins. 

testify  as  to  what  any  witness  said  before  ('o.  v.  Healey,  151  Mass.  538.     And  in  the 

the  grand  jury,  though  doubtful  in  Eng-  case  of  State  v.  Colfee,  56  Conn.   410,  it 

land  (Stephen  Dig.  Evid.  art.  114),  seems  was  held  that  declarations  of  the  prisoner 

to  be  established  in  some  of  the  United  made  by  him  voluntarily  in  the  grand  jury 

States.      Com.  v.  Mead,  12  Gray  (Mass.),  room,  might  be  testified  to  by  any  of  the 

166;  Jones  y.  Turpin,  6  Heisk.  (Tenn.)  181;  grand  jury.     The  court,  however,  in  this 

State  V.  Wood,   53  N.  H.   484  ;  Shattuck  case  placed  their  decision  on  the  ground 

V.  State,  11  Ind.  473  ;  Burdick  v.  Hunt,  that  the  declarations  of  the  pri.soner  formed 

43    Id.    381.     And   in    a   recent    case   in  no  part  of  the  proceedings  of  the  grand 

Massachusetts,  the   district  attorney  was  jury  ;   that  he  was  not  testifying  before 

allowed  to  testify  in  a  civil  case  as  to  what  them  and  was  not  even  requested  to  make 

certain  witnesses  had  testified  before  the  the  statement ;  but  that  it  was  a  volun- 

grand  jury  at  the  time  of  finding  an  indict-  tary  admission  by  lum,  and  should  not  be 

ment,  at  which  he  was  present ;  the  court  excluded  merely  because  the  persons  who 

saying  that  the  evidence  was  not  objec-  testified  to  it  were  members  of  the  grand 

tionable  on  the  ground  that  it  disclosed  jury  and  the  admission  itself  was  made  in 

what  took  place  before  the  grand  jury,  be-  the  giand  jury  room, 
cause  the  time  had  passed  when  secrecy 


CHAP.    XIII.]       EVIDENCE    EXCLUDED    FROM   PUBLIC    POLICY. 


345 


number  actually  concurred  in  the  finding  of  a  bill,  the  certificate 
of  the  foreman  not  being  conclusive  evidence  of  that  fact.** 

§  252  a.  Proceedings  of  traverse  jurors.  On  similar  grounds 
of  public  policy,  and  for  the  protection  of  parties  against  fraud, 
the  law  excludes  the  testimony  of  traverse  jurors,  when  offered 
to  prove  mishehavior  in  the  jury  in  regard  to  the  verdict.  For- 
merly, indeed,  the  affidavits  of  jurors  have  been  admitted  in  sup- 
port of  motions  to  set  aside  verdicts  by  reason  of  misconduct;  but 
that  practice  was  broken  in  upon  by  Lord  Mansfield,  and  the 
settled  course  now  is  to  reject  them,  because  of  the  mischiefs 
which  may  result  if  the  verdict  is  thus  placed  in  the  power  of  a 
single  juryman.^  (a) 

called  as  witnesses  after  the  first  indictment  has  been  tried,  in  order  to  establish  the 
guilt  of  the  perjured  party.  See  4  Bl.  Conini.  126,  n.  5,  by  Christian  ;  1  Chitty's 
Crim.  Law,  p.  317  ;  Sir  J.  Fenwick's  Case,  13  Howell's  St.  Tr.  610,  611  ;  5  St.  Tr. 
72  ;  Wharton's  Am.  Crim.  Law,  p.  130.  By  the  Revised  Statutes  of  New  York, 
vol.  ii.  p.  724,  §  31,  the  question  may  be  asked  even  in  civil  cases. 

6  4  Hawk.  P.  C.  b.  2,  c.  25,  §  15  ;  McLellan  v.  Richardson,  1  Shepl.  82  ;  Low's  Case, 
4  Greenl.  439  ;  Commonwealth  v.  Smith,  9  Mass.  107. 

1  Vaise  v.  Delaval,  1  T.  R.  11  ;  Jackson  v.  Williamson,  2  T.  R.  281  ;  Owen  v.  War- 
burton,  1  N.  R.  326  ;  Little  v.  Larrabee,  2  Greenl.  37,  41,  n.,  where  the  cases  are  col- 
lected. State  V.  Freeman,  5  Conn.  348  ;  Meade  v.  Smith,  16  Conn.  346  ;  Straker  v. 
Graham,  4  M.  &  W.  721. 


(a)  Woodward  v.  Leavitt,  107  Mass. 
453.  Perhaps  the  best  statement  of  the 
rule  is  that  given  in  Hetfron  v.  Gallupe,  55 
Me.  563,  that  the  testimony  of  a  juror  is 
admissible  to  facts  touching  his  own  con- 
duct or  acts  when  separated  from  his  fel- 
lows, or  the  acts  or  declarations  of  other 
persons  with  or  to  him,  but  inadmissible 
to  what  transpired  in  the  deliberations  of 
the  jury  acting  as  an  organized  body  pre- 
sided over  by  their  foreman  and  perform- 
ing their  oiiicial  duty.  Cf.  Tucker  v. 
South  Kingston,  5  R.  L  558  ;  Bridge- 
water  V.  Plymouth,  97  Mass.  382  ;  Boston, 
&c.  R.  R.  Corp.  V.  Dana,  1  Gray,  83,  105  ; 
Folsom  r.  Manchester,  11  Cush.  334,  337. 
The  testimony  of  jurors  seems  to  be  ad- 
mitted even  on  the  subject  of  the  proceed- 
ings in  the  jury-room,  in  New  York.  Dana 
V.  Tucker,  4  Johns.  487  ;  and  in  New 
Hampshire.  Tenney  v.  Evans,  13  N.  H. 
462  ;  State  v.  Ayer,  23  N.  H.  301.  Mr. 
Chief  Justice  Shaw  speaks  of  this  rule  as 
follows  :  "  We  think  the  judge  was  right 
in  rejecting  evidence  of  the  alleged  par- 
tiality and  misconduct  of  a  juror  in  the 
jury-room,  by  the  testimony  of  the  juror 
himself,  or  of  the  other  jurors.  It  is  a  rule 
founded  upon  obvious  considerations  of 
public  policy,  and  it  is  important  that 
it  should  be  adhered  to  and  not  broken  in 
upon   to   afford  relief   in   supposed   hard 


cases."  Cook  v.  Castner,  9  Cush.  278. 
Mr.  Justice  Gray  expresses  these  views  : 
"The  proper  evidence  of  the  decision  of 
the  jury  is  the  verdict  returned  by  them 
upon  oath,  and  affirmed  in  open  court  ;  it 
is  essential  to  the  freedom  and  indepen- 
dence of  their  deliberations  that  their  dis- 
cussions in  the  jury-room  should  be  kept 
secret  and  inviolable,  and  to  admit  the  tes- 
timony of  jurors  to  what  took  place  there 
would  create  distrust,  embarrassments,  and 
uncertainty.  Questions  of  the  competency 
of  such  evidence  have  usually  arisen  upon 
its  being  oH"ered  with  a  view  to  overturn 
the  verdict ;  for  the  party  in  whose  favor 
the  verdict  has  been  rendered,  has  ordi- 
narily no  need  of  further  proof ;  but  the 
decisive  reasons  for  excluding  the  testi- 
mony of  jurors  to  the  motives  and  influ- 
ences which  affected  their  deliberations  are 
equally  strong  whether  the  evidence  is  of- 
fered to  impeach  or  support  the  verdict." 
Woodward  v.  Leavitt,  107  Mass.  453  ; 
Rowe  V.  Canney,  139  Mass.  41.  The  Eng- 
lish and  American  cases  are  thoroughly 
reviewed  in  this  case,  and  the  decision 
made  that  evidence  of  a  juror  as  to  what 
took  place  in  the  jury-room,  was  inadmis- 
sible. The  same  rule  applies  to  conversa- 
tion of  the  jurors  together  about  the  case 
while  they  are  on  their  way  to  or  from  the 
court-house.      Com.  v.  WJiite,  147  Mass. 


346  LAW   OF   EVIDENCE.  [PART   II. 

§  253.  Communications  offensive  to  public  morals.  There  is  a 
fourth  species  of  evidence  which  is  excluded,  namely,  that  which 
is  indecent^  or  offensive  to  public  morals,  or  injurious  to  the  feel- 
ings or  interests  of  third  persons,  the  parties  themselves  having 
no  interest  in  the  matter,  except  what  they  have  impertinently 
and  voluntarily  created.  The  mere  indecency  of  disclosures 
docs  not,  in  general,  suffice  to  exclude  them  where  the  evi- 
dence is  necessary  for  the  purposes  of  civil  or  criminal  jus- 
tice; as,  in  an  indictment  for  a  rape;  or  in  a  question  upon  the 
sex  of  one  claiming  an  estate  entailed,  as  heir  male  or  female ; 
or  upon  the  legitimacy  of  one  claiming  as  lawful  heir;  or  in 
an  action  by  the  husband  for  criminal  conversation  with  the 
wife.  In  these  and  similar  cases  the  evidence  is  necessary, 
either  for  the  proof  and  punishment  of  crime  or  for  the  vin- 
dication of  rights  existing  before,  or  independent  of,  the  fact 
sought  to  be  disclosed.  But  where  the  parties  have  voluntarily 
and  impertinently  interested  themselves  in  a  question  tending  to 
violate  the  peace  of  society  by  exhibiting  an  innocent  third  per- 
son to  the  world  in  a  ridiculous  or  contemptible  light,  or  to  dis- 
turb his  own  peace  and  comfort,  or  to  offend  public  decency  by 
the  disclosures  which  its  decision  may  require,  the  evidence  will 
not  be  received.  Of  this  sort  are  wagers  or  contracts  respecting 
the  sex  of  a  third  person, ^  or  upon  the  question  whether  an  un- 
married woman  has  had  a  child.  ^  In  this  place  may  also  be  men- 
tioned the  declarations  of  the  husband  or  wife  that  they  have  had 
no  connection,  though  living  together  and  that  therefore  the  off- 
spring is  spurious ;  which,  on  the  same  general  ground  of  decency, 
morality,  and  policy,  are  uniformly  excluded.^ 

§  254.  Communications  between  husband  and  wife.  Communi- 
cations between  husband  and  wife  belong  also  to  the  class  of  privi- 
leged communications,  and  are  therefore  protected  independently 
of  the  ground  of  interest  and  identity,  which  precludes  the  par- 

1  Da  Costa  v.  Jones,  Cowp,  729. 

2  Ditchburn  v.  Goldsmith,  4  Campb.  152.  If  the  subject  of  the  action  is  frivolous, 
or  the  question  impertinent,  and  this  is  apparent  on  the  record,  the  court  will  not  pro- 
ceed  at  all  in  the  trial.     Brown  v.  Leeson,  2  H.  Bl.  43  ;  Henkin  v.  Gerss,  2  Campb.  408. 

3  Goodright  v.  Moss,  Cowp.  594,  said,  per  Lord  Mansfield,  to  have  been  solemnly- 
decided  at  the  Delegates.  Cope  v.  Cope,  1  M.  &  Rob.  269,  per  Alderson,  J.  ;  Kex  v. 
Rook,  1  Wils.  340  ;  Rex  v.  Luffe,  8  East,  193,  202,  203  ;  Rex  v.  Kea,  11  East,  132  ; 
Commonwealth  v.  Shepherd,  6  Binn.  283. 

76  ;  Rowe  v.  Canney,  139  Mass.  41.     This  direct  testimony  of  a  juror  as  to  what  took 

rule  has  been  also  extended  so  as  to  exclude  place  in  the  jury-room,    is   inadmissible, 

the  testimony  of  one  juror  as  to  the  mis-  a  fortiori,  his  declarations,  testified  to  by 

conduct  of  another  juror  outside  the  jurj'-  another  witness,  as  to  such  matters,  are 

room,   during  the  pendency  of  the  case,  inadmissible.     Warren  v.   Spencer  Water 

Kowe  r.  Canney,  139  Mass.  41.     As  the  Co.,  143  Mass.  155. 


CHAP.    XIII.]       EVIDENCE   EXCLUDED    FROM    PUBLIC   POLICY. 


347 


tics  from  testifying  for  or  against  each  other,  (a)  The  liappiness 
of  the  married  state  requires  that  there  should  be  the  most  un- 
limited confidence  between  husband  and  wife;  and  this  confi- 
dence the  law  secures  by  providing  that  it  shall  be  kept  forever 
inviolable ;  that  nothing  shall  be  extracted  from  the  bosom  of  the 
wife  which  was  confided  there  by  the  husband.  Therefore,  after 
the  parties  are  separated,  whether  it  be  by  divorce  or  by  the  death 


(a)  The  exclusion  of  such  communica- 
tions as  are  described  in  the  text  is  based 
partially  upon  the  policy  of  the  law  to  ex- 
clude such  communications  and  partly  upon 
the  interest  of  the  witness  in  the  (;ase. 
These  two  grounds  for  this  exclusion  have 
given  rise  to  statutory  enactments  on  this 
point  in  most  of  the  States,  but  these  stat- 
utes have  generally  been  framed  rather 
with  regard  to  the  interest  of  the  witness 
than  to  the  reasons  of  public  policy  ex- 
cluding the  testimony.  Consequently,  the 
statutes  may  more  properly  be  considered 
in  connection  with  the  sections  relating  to 
the  competency  of  tvitnesses,  where  they  will 
be  found  set  forth  at  length,  and  the  subject 
discussed  in  all  its  asi)ects,  including  the 
reasons  of  public  policy  which  are  set  forth 
in  this  section  by  the  author,  but  which 
are  so  combined  in  the  statutes  with  the 
grounds  of  incompetency  arising  from  the 
interest  of  the  witness,  that  a  separate  dis- 
cussion of  them  would  involve  much  repe- 
tition, and  is  therefore  avoided.  See  post, 
§  334,  notes. 

A  few  points,  however,  may  be  noticed 
here.  The  English  statute  provides  that 
no  husband  or  wife  shall  be  compellable  to 
disclose  any  communication  made  to  him 
or  her  by  the  other,  during  marriage.  16 
&  17  Vict.  c.  83,  §  3.  The  New  York 
statute  is  similar.  Statute  of  1867,  c.  887, 
§  3.  A  voluntary  statement  is,  therefore, 
receivable  under  such  statutes.  South  wick 
V.  Southwick,  2  Sweeny,  234.  In  most 
States,  however,  husband  and  wife  are  in- 
competent to  testify  as  to  such  communica- 
tions. See  §  341,  note  («)  ;  Baldwin  v. 
Parker,  99  Mass.  79  ;  Jacobs  v.  Hesler, 
113  Id.  157;  Brown  v.  Wood,  121  Id. 
137. 

As  the  privilege  attaches  to  the  com- 
munication, it  is  held  that  if  it  has  been 
repeated  by  either  husband  or  wife  to  a 
third  person,  it  cannot  be  proved  by  put- 
ting that  person  on  the  stand  to  testify  to 
it.  Brown  v.  Wood,  121  Mass.  137.  Yet 
if  a  third  person  has  overheard  the  conver- 
sation while  it  is  going  on,  he  may  testify 
to  it.  Com.  V.  Griffin,  110  Mass.  181  ; 
State  V.  Carter,  35  Vt.  378.  And  also, 
that  the  communication,  if  it  is  in  writing, 


is  not  privileged,  if  the  writing  gets  into 
the  hands  of  third  ])arties.  State  v.  Buf- 
fington,  20  Kan.  599. 

The  statutes  of  some  States  include 
only  private  conversations  in  the  privilege. 
This  term  naturally  means  conversations 
between  the  husband  and  wife  when  alone, 
but  it  has  been  held  to  include  the  con- 
versation between  husband  and  wife  when 
in  the  presence  of  their  young  children, 
who  took  no  part  in  nor  paid  any  attention 
to  the  conversation  (Jacobs  v.  Hesler,  ubi 
supra)  ;  but  not  when  a  third  person  is 
present.  Fay  v.  Guynon,  131  Mass.  31. 
The  conversation  need  not  be  confidential 
in  its  nature.  Dexter  v.  Booth,  2  Allen 
(Mass.),  559;  Raynes  v.  Bennett,  114 
Mass.  425.  Com.  v.  Hayes,  145  Mass.  293. 
And  exclamations  of  pain  uttered  by  the 
husband  in  the  presence  of  the  wife  may 
be  testified  to  by  her.  Com.  v.  Jardine, 
143  Mass.  567. 

In  other  States,  the  statute  only  pro- 
tects confidential  conmiunications.  Wood 
V.  Chetwood,  27  N.  J.  Eq.  311. 

The  statute  of  other  States  covers  all 
communications  made  by  either  husband 
or  wife  to  the  other  during  the  marriage. 
This  is  the  English  statute,  16  &  17  Vict, 
c.  83,  §  3.  And  so  in  Rhode  Island,  Gen. 
Stat.  c.  203,  §  36  ;  California  C.  V,.  P. 
§  1881  ;  Kansas  Civil  Code,  §  323  ;  (Jhio: 
67  Ohio  L.  113  ;  Illinois,  Sess.  Laws, 
1867,  184,  §  5.  And  for  more  extended 
reference,  see  post,  §  334  and  notes.  Under 
such  a  statute,  communications  between 
husband  and  wife  are  privileged,  though 
they  are  made  in  the  presence  of  third  per- 
sons. Campbell  v.  Chace,  12  R.  I.  333  ; 
Estate  of  Low,  Myrick's  Probate,  143; 
Bird  V.  Hueston,  10  Ohio  St.  418  ;  Wes- 
terman  v.  Westerman,  25  Ohio  St.  500. 

But  communications  made  by  the  hus- 
band or  wife  to  a  third  person  in  the  presence 
of  the  other,  are  not  so  privileged.  Hig- 
bee  V.  McMillen,  18  Kan.  133  ;  Griffin  v. 
Smith,  Adm'r,  45  Ind.  366. 

In  some  Slates  no  statute  at  all  exists 
on  this  subject,  and  the  common-law  rule 
then  governs.  White  v.  Perry,  14  W. 
Va.  66. 


348  LAW   OP   EVIDENCE.  [PART   II. 

of  the  husband,  the  wife  is  still  precluded  from  disclosing  any  con- 
versations with  him,  though  she  may  be  admitted  to  testify  to 
facts  which  came  to  her  knowledge  by  means  equally  accessible 
to  any  person  not  standing  in  that  relation.  ^  (6)  Their  general 
incompetency  to  testify  for  or  against  each  other  will  be  consid- 
ered hereafter  in  its  more  appropriate  place. 

§  254  a.  Evidence  admissible,  though  illegally  obtained.  It  may 
be  mentioned  in  this  place,  that  though  papers  and  other  subjects 
of  evidence  may  have  been  illegally  taken  from  the  possession  of 
the  party  against  whom  they  are  offered,  or  otherwise  unlawfully 
obtained,  this  is  no  valid  objection  to  their  admissibility  if  they 
are  pertinent  to  the  issue.  The  court  will  not  take  notice  how 
they  were  obtained,  whether  lawfully  or  unlawfully,  nor  will  it 
form  an  issue  to  determine  that  question.^ 

1  Monroe  v.  Twistleton,  Peake's  Evid.  App.  Ixxxii.,  as  explained  by  Lord  Ellen- 
borough,  in  Aveson  v.  Lord  Kinuaird,  6  East,  192,  193  ;  Doker  v.  Hasler,  Ry.  &  M. 
198  ;  Stein  v.  Bowman,  13  Peters,  209,  223  ;  Coffin  v.  Jones,  13  Pick.  441,  445  ;  Ed- 
gell  I'.  Bennett,  7  Vt.  536  ;  Williams  v.  Baldwin,  Id.  503,  506,  per  Royce,  J.  In  Bev- 
eridge  v.  Minter,  1  C.  &  P.  364,  where  the  widow  was  permitted  by  Abbott,  C.  J.,  to 
testify  to  certain  admissions  of  her  deceased  husband,  relative  to  the  money  in  question, 
this  point  was  not  considered,  the  objection  being  placed  wholly  on  the  ground  of  her 
interest  in  the  estate.  See  also  2  Kent,  Comm.  180  ;  2  Stark.  Evid.  399 ;  Robin  v. 
King,  2  Leigh,  142,  144. 

2  Commonwealth  v.  Dana,  2  Met.  329,  837  ;  Legatt  v.  Tollervey,  14  East,  302  ; 
Jordan  v.  Lewis,  Id.  306,  n. 

(6)  Bigelow  V.  Sickles,  75  Wis.  428, 


CHAP.    XIV.]  NUMBER   OF  WITNESSES.  349 


CHAPTER  XIV. 

OF    THE    NUMBER   OF   WITNESSES,    AND    THE    NATURE    AND    QUANTITY 
OF   PROOF   REQUIRED   IN   PARTICULAR   CASES. 

§  255.  Number  of  witnesses  in  treason.  Under  this  head  it  is 
not  proposed  to  go  into  an  extended  consideration  of  the  statutes 
of  treason,  or  of  frauds,  but  only  to  mention  briefly  some  in- 
stances in  which  those  statutes,  and  some  other  rules  of  law,  have 
regulated  particular  cases,  taking  them  out  of  the  operation  of 
the  general  principles  by  which  they  would  otherwise  be  gov- 
erned. Thus,  in  regard  to  treaso7is,  though  by  the  common  law 
the  crime  was  sufficiently  proved  by  one  credible  witness,  ^  yet, 
considering  the  great  weight  of  the  oath  or  duty  of  allegiance 
against  the  probability  of  the  fact  of  treason,^  it  has  been  deemed 
expedient  to  provide  ^  that  no  person  shall  be  indicted  or  con- 
victed of  high  treason  but  upon  the  oaths  and  testimony  of  two 
witnesses  to  the  same  overt  act,  or  to  separate  overt  acts  of  the 
same  treason,  unless  upon  his  voluntary  confession  in  open  court. 
We  have  already  seen  that  a  voluntary  confession  out  of  court,  if 
proved  by  two  witnesses,  is  sufficient  to  warrant  a  conviction ;  and 
that  in  England  the  crime  is  well  proved  if  there  be  one  witness 

1  Foster's  Disc.  p.  233;  Woodlieck  v.  Keller,  0  Cowen,  120;  McNally's  Evid.  31. 

2  This  is  conceived  to  be  the  true  foundation  on  whicli  the  rule  has,  in  modern  times, 
been  enacted.  The  manner  of  its  first  introduction  into  the  statutes  was  thus  stated 
by  the  Lord  Chancellor,  in  Lord  Stafford's  Case,  T.  Raym.  408  :  "  Upon  this  occasion, 
my  Lord  Chancellor,  in  the  Lords  House,  was  pleased  to  communicate  a  notion  con- 
cerning the  reason  of  two  witnesses  in  treason,  which  he  said  was  not  very  familiar,  he 
believed  ;  and  it  was  this  :  anciently  all  or  most  of  the  judges  were  churchmen  and 
ecclesiastical  persons,  and  by  the  canon  law  now,  and  then,  in  use  all  over  the  Christian 
world,  none  can  be  condemned  of  heresy  but  by  two  lawful  and  credible  witnesses  ; 
and  bare  words  may  make  a  heretic,  but  not  a  traitor,  and  anciently  heresy  was  treason  ; 
and  from  thence  the  Parliament  thought  fit  to  appoint  that  two  witnesses  ought  to  be 
for  proof  of  high  treason." 

8  This  was  done  by  Stat.  7  "W.  IIL  c.  3,  §  2.  Two  witnesses  were  required  by  the 
earlier  statutes  of  1  Ed.  VI.  c.  12,  and  5  &  6  Ed.  VI.  c.  11  ;  in  the  construction  of 
which  statutes,  the  rule  afterwards  declared  in  Stat.  7  W.  III.  was  adopted.  See  Rex 
V.  Lord  Stafford,  T.  Raym.  407.  The  Constitution  of  the  United  States  provides  that 
"No  jierson  shall  be  convicted  of  treason,  unless  on  the  testimony  of  two  witnesses  to 
the  same  overt  act,  or  on  confession  in  open  court."  Art.  3,  §  3,  LL.  U.  S.  vol.  ii.  c.  36,  ■ 
§  1.  This  provision  has  been  adopted,  in  terms,  in  many  of  the  State  constitutions. 
I5ut  as  in  many  other  States,  there  is  no  express  law  requiring  that  the  testimony  of 
both  witnesses  should  be  to  the  same  overt  act,  the  rule  stated  in  the  text  is  conceived 
to  be  that  which  would  govern  in  trials  for  treason  aj:jainst  those  States  ;  though  in 
trials  in  the  other  States,  and  for  treason  against  the  United  States,  the  constitutional 
provision  would  confine  the  evidence  to  the  same  overt  act. 


850  LAW   OF   EVIDENCE.  [PART  n. 

to  one  overt  act,  and  another  witness  to  another  overt  act,  of  the 
same  species  of  treason.^  It  is  also  settled  that  when  the  pris- 
oner's confession  is  offered,  as  corroborative  of  the  testimony  of 
such  witnesses,  it  is  admissible,  though  it  be  proved  by  only  one 
witness ;  the  law  not  having  excluded  confessions,  proved  in  that 
manner,  from  the  consideration  of  the  jury,  but  only  provided  that 
they  alone  shall  not  be  sufficient  to  convict  the  prisoner.^  And 
as  to  all  matters  merely  collateral,  and  not  conducing  to  the 
proof  of  the  overt  acts,  it  may  be  safely  laid  down  as  a  general 
rule,  that  whatever  was  evidence  at  common  law  is  still  good  evi- 
dence under  the  express  constitutional  and  statutory  provision 
above  mentioned.^ 

§  256.  No  overt  act  not  laid  in  the  indictment  provable.  It  may 
be  proper  in  this  place  to  observe  that  in  treason  the  rule  is  that 
no  evidence  can  be  given  of  any  overt  act  which  is  not  expressly 
laid  in  the  indictment.  But  the  meaning  of  the  rule  is,  not  that 
the  whole  detail  of  facts  should  be  set  forth,  but  that  no  overt  act, 
amounting  to  a  distinct  independent  charge,  though  falling  under 
the  same  head  of  treason,  shall  be  given  in  evidence  unless  it  be 
expressly  laid  in  the  indictment.  If,  however,  it  will  conduce  to 
the  proof  of  any  of  the  overt  acts  which  are  laid,  it  may  be  ad- 
mitted as  evidence  of  such  overt  acts.^  This  rule  is  not  peculiar 
to  prosecutions  for  treason ;  though,  in  consequence  of  the  op- 
pressive character  of  some  former  State  prosecutions  for  that 
crime,  it  has  been  deemed  expedient  expressly  to  enact  it  in  the 
later  statutes  of  treason.  It  is  nothing  more  than  a  particular 
application  of  a  fundamental  doctrine  of  the  law  of  remedy  and 
of  evidence;  namely,  that  the  proof  must  correspond  with  the 
allegations,  and  be  confined  to  the  point  in  issue. ^  This  issue, 
in  treason,  is  whether  the  prisoner  committed  that  crime  by  do- 
ing the  treasonable  act  stated  in  the  indictment;  as,  in  slander, 
the  question  is,  whether  the  defendant  injured  the  plaintiff  by 
maliciously  uttering  the  falsehoods  laid  in  the  declaration ;  and 
evidence  of  collateral  facts  is  admitted  or  rejected  on  the  like 
principle  in  either  case,  accordingly  as  it  does  or  does  not  tend 
to  establish  the  specific  charge.     Therefore  the  declarations  of 

*  Supra,  §  235,  n.  ;  Lord  Stafford's  Case,  7  Howell's  St.  Tr.  1527  ;  Foster's  Disc. 
237  ;  1  Burr's  Trial,  196. 

5  Willis's  Case,  15  Howell's  St.  Tr.  623-625  ;  Grossfield's  Case,  26  Howell's  St.  Tr. 
55~"5T  '  Fostpr  s  Disc   241 

6  Swpra,  §  235  ;  Foster's  Disc.  240,  242;  1  East,  P.  C.  130, 

1  Foster's  Disc.  p.  245  ;  1  Phil.  Evid.  471  ;  Deacon's  Case,  18  Howell's  St.  Tr. 
366  ;  s,  c.  Foster,  9;  Regicide's  Case,  J.  Kely,  8,  9  ;  1  East,  P.  C.  121-123  ;  2  Stark. 
Evid.  800,  801. 

2  Supra,  §§  51-53. 


CHAP.    XIV.]  NUMBER   OP   WITNESSES.  351 

the  prisoner,  and  seditious  language  used  by  him,  arc  admissiljle 
in  evidence  as  explanatory  of  his  conduct,  and  of  the  nature  and 
object  of  the  conspiracy  in  which  he  was  engaged. -"^  (a)  And  after 
proof  of  the  overt  act  of  treason,  in  the  county  mentioned  in 
the  indictment,  other  acts  of  treason  tending  to  prove  the  overt 
acts  laid,  though  done  in  a  foreign  country,  may  be  given  in 
evidence.'*  (h) 

§  257.  In  perjury.  In  proof  of  the  crime  of  perjury,  also,  it 
was  formerly  held  that  two  witnesses  were  necessary,  because 
otherwise  there  would  be  nothing  more  than  the  oath  of  one  man 
against  another,  upon  which  the  jury  could  not  safely  convict.^ 
But  this  strictness  has  long  since  been  relaxed ;  the  true  prin- 
ciple of  the  rule  being  merely  this,  that  the  evidence  must  be 
something  more  than  sufficient  to  counterbalance  the  oath  of  the 
prisoner,  and  the  legal  presumption  of  his  innocence.  ^  The  oath 
of  the  opposing  witness,  therefore,  will  not  avail,  unless  it  be 
corroborated  by  other  independent  circumstances.  But  it  is  not 
precisely  accurate  to  say,  that  these  additional  circumstances 
must  be  tantamount  to  another  witness.     The  same  effect  being 

8  Rex  V.  Watson,  2  Stark.  116,  134. 

*  Deacon's  Case,  16  Howell's  St.  Tr.  367  ;  s.  c.  Foster,  9  ;  Sir  Henry  Vane's  Case, 
4th  res.,  6  Howell's  St.  Tr.  123,  129,  n. ;  1  East,  P.  C.  125,  126. 

1  1  Stark.  Evid.  443  ;  4  Hawk.  P.  C.  b.  2,  c.  46,  §  10  ;  4  Bl.  Comm.  358  ;  2  Russ. 
on  Crimes,  1791. 

2  The  history  of  this  relaxation  of  the  sternness  of  the  old  rule  is  thus  stated  by 
Mr.  Justice  Wayne,  in  delivering  the  opinion  of  the  court  in  United  States  v.  Wood, 
14  Peters,  440,  441  :  "  At  first,  two  witnesses  were  required  to  convict  in  a  case  of  per- 
jury ;  both  swearing  directly  adversely  from  the  defendant's  oath.  Contemporaneously 
with  this  requisition,  the  larger  number  of  witnesses  on  one  side  or  the  other  prevailed. 
Then  a  single  witness,  corroborated  by  other  witnesses,  swearing  to  circumstances  bear- 
ing directly  upon  the  imputed  corpus  delicti  of  a  defendant,  was  deemed  sufficient. 
Next,  as  in  the  case  of  Rex  v.  Knill,  5  B.  &  Aid.  929,  n.,  with  a  long  interval  between 
it  and  the  preceding,  a  witness  who  gave  proof  only  of  the  contrailictory  oaths  of  the 
defendant  on  two  occasions,  one  being  an  examination  before  the  House  of  Lords,  and 
the  other  an  examination  before  the  House  of  Commons,  was  held  to  be  sufficient ; 
though  this  principle  had  been  acted  on  as  early  as  1764,  by  Justice  Yates,  as  may  be 
seen  in  the  note  to  the  case  of  The  King  v.  Harris,  5  B.  &  Aid.  937,  and  was  acqui- 
esced in  by  Lord  Mansfield,  and  Justices  Wilmont  and  Aston.  We  are  aware  that,  in 
a  note  to  Rex  v.  Mayhew,  6  C.  &  P.  315,  a  doubt  is  implied  concerning  the  case  decided 
by  Justice  Yates  :  but  it  has  the  stamp  of  authenticity,  from  its  having  been  referred 
to  in  a  case  happening  ten  years  afterwards  before  Justice  Chambre,  as  will  appear  by 
the  note  in  5  B.  &  Aid.  937.  Afterwards,  a  single  witness,  with  the  defendant's  bill 
of  costs  (not  sworn  to)  in  lieu  of  a  second  witness,  delivered  by  the  defendant  to  the 
prosecutor,  was  held  sufficient  to  contradict  his  oath  ;  and  in  that  case  Lord  Denman 
says,  '  A  letter  written  by  the  defendant,  contradicting  his  statement  on  oath,  would  be 
sufficient  to  make  it  unnecessary  to  have  a  second  witness.'  6  C.  &  P.  315.  We  thus 
see  that  this  rule,  in  its  proper  application,  has  been  expanded  beyond  its  literal  terms, 
as  cases  have  occurred  in  which  proofs  have  been  offered  equivalent  to  the  end  intended 
to  be  accomplished  by  the  rule." 

{a)  United  States  v.  Hanway,  2  Wall.         (J)  See  2^ost,  vol.  iii.  246-248. 
Jr.  139. 


352  LAW    OF    EVIDENCE.  [PART    II. 

given  to  the  oath  of  the  prisoner,  as  though  it  were  the  oath  of  a 
credible  witness,  the  scale  of  evidence  is  exactly  balanced,  and 
the  equilibrium  must  be  destroyed,  by  material  and  independent 
circumstances,  before  the  party  can  be  convicted.  The  addi- 
tional evidence  needs  not  be  such  as,  standing  by  itself,  would 
justify  a  conviction  in  a  case  where  the  testimony  of  a  single 
witness  would  suffice  for  that  purpose.  But  it  must  be  at  least 
strongly  corroborative  of  the  testimony  of  the  accusing  witness;^ 
or,  in  the  quaint  but  energetic  language  of  Parker,  C.  J.,  "a 
strong  and  clear  evidence,  and  more  numerous  than  the  evidence 
given  for  the  defendant.  "*  (a) 

§  257  a.  In  case  of  several  assignments.  When  there  are  sev- 
eral assignments  of  perjury  in  the  same  indictment,  it  docs  not 
seem  to  be  clearly  settled,  whether,  in  addition  to  the  testimony 
of  a  single  witness,  there  must  be  corroborative  proof  with  respect 
to  each ;  but  the  better  opinion  is,  that  such  proof  is  necessary ; 
and  that,  too,  although  all  the  perjuries  assigned  were  committed 
at  one  time  and  place.  ^  (6)     For  instance,  if  a  person,  on  putting 

3  "Woodbeck  v.  Keller,  6  Cowen,  118,  121,  per  Sutherland,  J.  ;  Champney's  Case,  2 
Lew.  Cr.  Cas.  258.     And  see  infra,  §  381. 

*  The  Queen  v.  Muscot,  10  Mod.  194.  See  also  State  v.  Molier,  1  Dev.  263, 
265 ;  State  v.  Hayward,  1  Nott  &  McCord,  547  ;  Rex  v.  Mayhew,  6  C.  &  P.  315  ; 
Keg.  V.  Boulter,  16  Jur.  135  ;  Roscoe  on  Criin.  Evid.  686,  687  ;  Clark's  Executors  u. 
Van  Riemsdyk,  9  Cranch,  160.  It  must  coiroborate  him  in  something  more  than  some 
slight  particulars.  Reg.  v.  Yates,  1  Car.  &  Marsh.  139.  More  recently,  corroborati\-e 
evFdence,  in  cases  where  more  then  one  witness  is  required  by  law,  has  been  defined  by 
Dr.  Lushington  to  be  not  merely  evidence  showing  that  the  account  is  probable,  but 
evidence  proving  facts  ejusdem  generis,  and  tending  to  produce  the  same  results.  Sim- 
mons V.  Simmons,  11  Jur.  830.'  See  further  to  this  point,  Keg.  v.  Parker,  C.  &  Marsh. 
646  ;  Keg.  v.  Cliampney,  2  Lewiu,  258  ;  Keg.  v.  Gardiner,  8  C.  &  P.  737 ;  Keg.  v. 
Roberts,  2  Car.  &  Kir.  614. 

1  Keg.  V.  Virrier,  12  A.  &  E.  317,  324,  per  Ld.  Denman. 

(a)  There  need  not  be  two  witnesses  in  tempt  to  define  the  degree  of  corrobora- 
the  case,  but  there  must  be  something  in  tion  necessary  would  be  illusory.  Keg.  v. 
the  case  to  make  the  jury  believe  one  Shaw,  10  Cox,  C.  C.  66. 
rather  than  the  other,  some  independent  (b)  Williams  v.  Com.,  91  Pa.  St.  493. 
evidence  in  corroboration.  Keg.  v.  Braith-  And  in  England  the  rule  is  settled  in  this 
waite,  8  Cox,  C.C.  254;  Keg.  v.  Boulter,  16  way  by  Keg.  v.  Parker,  Stamf.  Sum.  Ass. 
Jur.  135;  State i>.  Buie,  43  Tex.  532;  State  1842,  cited  in  Kuss.  on  Crimes,  vol.  iii.  5th 
V.  Heed,  57  Mo.  252.  And  one  witness  is  ed.  p.  80.  But  where  the  assignment  is  of 
sufficient  to  prove  the  fact  that  the  defend-  a  continuous  natuie,  as  where  a  witness 
ant  swore  as  alleged  in  the  indictment,  swore  that  he  did  not  "treat  "a  certain 
Com.  jr.  Pollard,  12  Met.  (Mass.)  225.  In  person  to  drinks  during  a  certain  da}', 
Venable's  Case,  24  Graft.  (Va.)  639,  after  proof  of  one  distinct  act  of  such  "treat- 
a  confession  upon  imlucement,  and  after  a  ing,"  proved  by  one  witness,  is  corrobo- 
warning  from  the  court,  and  the  prisoner's  rated  sufficiently  by  proof  of  another  in- 
counsel,  a  confession  to  a  third  person  was  stance  of  "treating"  ju-oved  by  another 
held  inadmissible.  What  degree  of  corrobo-  single  witness  ;  for  both  such  instances  of 
rative  evidence  is  necessary  must  be  a  treat  go  to  prove  the  falsity  of  the  state- 
matter  for  the  opinion  of  the  presiding  ment  which  the  defendant  swore  to.  Keg. 
judge,  who  must  see  that  it  deserves  the  v.  Hare,  13  Cox,  C.  C.  174. 
title  of  corroborative  evidence.     Any  at- 


CHAP.    XIV.]  NUMBER    OF    WITNESSES.  353 

in  his  scliedulc  in  the  insolvent  dcl)tor's  court,  or  on  other  the 
like  occasion,  has  sworn  that  he  has  paid  certain  creditors,  and  is 
then  indicted  for  perjury  on  several  assignments,  each  specifying 
a  particular  creditor  who  has  not  been  paid,  a  single  witness  with 
respect  to  each  debt  will  not,  it  seems,  suffice,  though  it  may  bo 
very  difficult  to  obtain  any  fuller  evidence.  ^ 

§  258.  Corroborating  circumstances.  The  principle  that  one 
witness  with  corroborating  circumstances  is  sufficient  to  establish 
the  charge  of  perjury,  leads  to  the  conclusion  that  circumstances, 
without  any  witness,  when  they  exist  in  documentary  or  written 
testimony,  may  combine,  to  the  same  effect;  as  they  may  combine 
altogether  unaided  by  oral  proof,  except  the  evidence  of  their  au- 
thenticity, to  prove  any  other  fact,  connected  with  the  declarations 
of  persons  or  the  business  of  human  life.  The  principle  is,  that 
circumstances  necessarily  make  a  part  of  the  proofs  of  human 
transactions ;  that  such  as  have  been  reduced  to  writing,  in  une- 
quivocal terms,  when  the  writing  has  been  proved  to  be  authentic, 
cannot  be  made  more  certain  by  evidence  aliunde  ;  and  that  such 
as  have  not  been  reduced  to  writing,  whether  they  relate  to  the  dec- 
larations or  conduct  of  men,  can  only  be  proved  by  oral  testi- 
mony. Accordingly,  it  is  now  held  that  a  living  witness  of  the 
corpus  delicti  may  be  dispensed  with,  and  documentary  or  written 
evidence  be  relied  upon  to  convict  of  perjury, — first,  where  the 
falsehood  of  the  matter  sworn  by  the  prisoner  is  directly  proved  by 
documentary  or  written  evidence  springing  from  himself,  with  cir- 
cumstances showing  the  corrupt  intent;  secondly,  in  cases  where 
the  matter  so  sworn  is  contradicted  by  a  public  record,  proved  to 
have  been  well  known  by  the  prisoner  when  he  took  the  oath,  the 
oath  only  being  proved  to  have  been  taken ;  and,  thirdly,  in  cases 
where  the  party  is  charged  with  taking  an  oath,  contrary  to  what 
he  must  necessarily  have  known  to  be  true;  the  falsehood  being 
shown  by  his  own  letters  relating  to  the  fact  sworn  to,  or  by  any 
other  written  testimony  existing  and  being  found  in  his  posses- 
sion, and  which  has  been  treated  by  him  as  containing  the  evi- 
dence of  the  fact  recited  in  it.^ 

2  Eeg.  V.  Parker,  C.  &  Marsh.  639,  645-647,  per  Tindal,  C.  J.  In  Rex  v.  Mudie, 
1  M.  &  Rob.  128,  129,  Lord  Tenterden,  under  sinular  circumstances,  refused  to  stop 
the  case,  saying  that,  if  the  defendant  was  convicted,  he  might,  move  for  a  new  trial, 
He  was,  however,  acquitted.     See  the  (London)  Law  Review,  &c.,  JLav,  1846,  p.  128. 

^  United  States  v.  Wood,  14  Peters,  440,  441.  In  tliis  case,  under  the  latter 
head  of  the  rule  here  stated,  it  was  held,  that,  if  tlie  jury  were  satisfied  of  the  corrupt 
intent,  the  prisoner  miglit  well  be  convicted  of  perjury,  in  taking,  at  the  custom-house 
in  New  York,  the  "  owner's  oath  in  cases  where  goods,  wares,  or  merchandise,  have 
been  actually  purchased,"  upon  the  evidence  of  the  invoice-book  of  his  father,  John 
Wood,  of  Saddleworth,  England,  and  of  thirty-five  letters  from  the  prisoner  to  his 

VOL.  I.  —  23 


354  LAW    OF    EVIDENCE.  [PART   II. 

§  259.  Contradictory  oaths.  If  the  evidence  adduced  in  proof 
of  the  crime  of  perjury  consists  of  two  opposing  sf.atements  of  the 
prisoner,  and  nothing  more,  he  cannot  be  convicted.  For  if  one 
only  was  delivered  under  oath,  it  must  be  presumed,  from  the 
solemnity  of  the  sanction,  that  that  declaration  was  the  truth, 
and  the  other  an  error  or  a  falsehood ;  though  the  latter,  being 
inconsistent  with  what  he  has  sworn,  may  form  important  evi- 
dence, with  other  circumstances,  against  him.  And  if  both  the 
contradictory  statements  were  delivered  under  oath,  there  is  still 
nothing  to  show  which  of  them  is  false,  where  no  other  evidence 
of  the  falsity  is  given.  ^  If,  indeed,  it  can  be  shown  that,  before 
giving  the  testimony  on  which  perjury  is  assigned,  the  accused 
had  been  tampered  with,^  or  if  there  be  other  circumstances  in 
the  case,  tending  to  prove  that  the  statement  offered  in  evidence 
against  the  accused  was  in  fact  true,  a  legal  conviction  may  be 
obtained. 3  And  "although  the  jury  may  believe  that  on  the  one 
or  the  other  occasion  the  prisoner  swore  to  what  was  not  true,  yet 
it  is  not  a  necessary  consequence  that  he  committed  perjury. 
For  there  are  cases  in  which  a  person  might  very  honestly  and 
conscientiously  swear  to  a  particular  fact,  from  the  best  of  his 
recollection  and  belief,  and  from  other  circumstances  subse- 
quently be  convinced  that  he  was  wrong,  and  swear  to  the  reverse, 
without  meaning  to  swear  falsely  either  time. "  * 

§  260.  Answers  in  chancery.  The  principles  above  stated,  in 
regard  to  the  proof  of  perjury,  apply  with  equal  force  to  the  case 

father,  disclosing  a  combination  between  them  to  defraud  the  United  States,  by  in- 
voicing and  entering  the  goods  shipped  at  less  than  their  actual  cost. 

1  See  Alison's  Principles  of  the  Criminal  Law  of  Scotland,  p.  481  ;  Reg.  v.  Hughes, 
1  C.  &  K.  519  ;  Eeg.  v.  Wheatland,  8  C.  &  P.  238  ;  Reg.  v.  Chanipney,  2  Lew.  258. 

2  Anon.,  5  B.  &  Aid.  939,  940,  n.     And  see  2  Russ.  Cr.  &  M.  653,  n. 

3  Rex  V.  Knill,  5  B.  &  Aid.  929,  930,  n. 

4  Per  Holroyd,  J.,  in  Jackson's  Case,  1  Lewin's  Cr.  Cas.  270.  This  very  reasona- 
ble doctrine  is  in  perfect  accordance  with  the  rule  of  the  Criminal  Law  of  Scotland,  as 
laid  down  by  Mr.  Alison  in  his  lucid  and  elegant  treatise  on  that  subject,  in  the  follow- 
ing terms:  "  When  contradictory  and  inconsistent  oaths  have  been  emitted,  the  mere 
contradiction  is  not  decisive  evidence  of  the  existence  of  perjury  in  one  or  other  of 
them  ;  but  the  prosecutor  must  establish  which  was  the  true  one,  and  libel  on  the  other 
as  containing  the  falsehood.  Where  depositions  contradictory  to  each  other  have  been 
emitted  by  the  same  person  on  the  same  matter,  it  may  with  certainty  be  concluded  that 
one  or  other  of  them  is  false.  But  it  is  not  relevant  to  infer  perjury  in  so  loose  a  manner; 
but  the  prosecutor  must  go  a  step  farther,  and  specify  distinctly  which  of  the  two  con- 
tains the  falsehood,  and  peril  his  case  upon  the  means  he  possesses  of  proving  perjury 
in  that  deposition.  To  admit  the  opposite  course,  and  allow  the  prosecutor  to  libel  on 
both  depositions,  and  make  out  his  charge  by  comparing  them  together,  without  distin- 
guishing which  contains  the  truth  and  which  the  falsehood,  would  be  directly  contrary 
to  the  precision  justly  required  in  criminal  proceedings.  In  the  older  practice  this  dis- 
tinction does  not  seem  to  have  been  distinctly  recognized  ;  but  it  is  now  justly  consid- 
ered indispensable,  that  the  perjury  should  be  specified  existing  in  one,  and  the  other 
deposition  referred  to  in  modum  probationis,  to  make  out,  along  with  other  circumstances, 
where  the  truth  really  lay."     See  Alison's  Crim.  Law  of  Scotland,  p.  475. 


CHAP.    XIV.]  NUMBER   OF   WITNESSES.  355 

of  an  answer  in  chancery.  Formerly,  when  a  material  fact  was 
directly  put  in  issue  by  the  answer,  the  courts  of  equity  followed 
the  maxim  of  the  Roman  law,  responsio  unius  non  omnino  audiatur, 
and  required  the  evidence  of  two  witnesses,  as  the  foundation  of 
a  decree.  But  of  late  years  the  rule  has  been  referred  more 
strictly  to  the  equitable  principle  on  which  it  is  founded ;  namely, 
the  right  to  credit  which  the  defendant  may  claim,  equal  to  that 
of  any  other  witness  in  all  cases  where  his  answer  is  "  positively, 
clearly,  and  precisely  "  responsive  to  any  matter  stated  in  the 
bill.  For  the  plaintiff,  by  calling  on  the  defendant  to  answer  an 
allegation  which  he  makes,  thereby  admits  the  answer  to  be  evi- 
dence. ^  In  such  case,  if  the  defendant  in  express  terms  nega- 
tives the  allegations  in  the  bill,  and  the  bill  is  supported  by  the 
evidence  of  only  a  single  witness,  affirming  what  has  been  so 
denied,  the  court  will  neither  make  a  decree,  nor  send  the  case 
to  be  tried  at  law;  but  will  simply  dismiss  the  bill.'^  But  the 
corroborating  testimony  of  an  additional  witness,  or  of  circum- 
stances, may  give  a  turn  either  way  to  the  balance.  And  even 
the  evidence  arising  from  circumstances  alone,  may  be  stronger 
than  the  testimony  of  any  single  witness.  ^  («) 

§  260  a.  Usage  of  trade.  It  has  also  been  held,  that  the  testi- 
mony of  one  witness  alone  is  not  sufficient  to  establish  any  usage 
of  trade,  of  which  all  dealers  in  that  particular  line  are  bound  to 
take  notice,  and  are  presumed  to  be  informed.  ^(5) 

1  Gresley  on  Evid.  p.  4. 

2  Cooth  V.  Jackson,  6  Ves.  40,  per  Ld.  Eldon. 

3  Pember  v.  Mathers,  1  Bro.  Ch.  52  ;  2  Story  on  Eq.  Jur.  §  1528  ;  Gresley  on  Evid. 
p.  4  ;  Clark  v.  Van  Rieinsdyk,  9  Cranch,  160  ;  Keys  v.  Williams,  3  Y.  &  C.  55  ;  Daw- 
son V.  Massey,  1  Ball  &  Beat.  234  ;  Maddox  v.  Sullivan,  2  Rich.  Eq.  4.  Two  witnesses 
are  required  "in  Missouri,  to  prove  the  handwriting  of  a  deceased  subscribing  witness  to 
a  deed,  when  all  the  subscribing  witnesses  are  dead,  or  cannot  be  had,  and  the  deed  is 
offered  to  a  court  or  magistrate  for  probate,  preparatory  to  its  registration.  Rev.  Stat. 
1835,  p.  121  ;  Id.  1845,  c.  32,  §  22  ;  infra,  §  569,  n.  Two  witnesses  are  also  required 
to  a  deed  of  conveyance  of  real  estate,  by  the  statutes  of  New  Hampshire,  Vermont, 
Connecticut,  Georgia,  Florida,  Ohio,  Michigan  and  Arkansas.  See  4  Cruise's  Digest, 
tit.  32,  c.  2,  §  77,  n.  (Greenleafs  ed.)  [2d  ed.  (1856)  vol.  ii.  p.  341].  And  in  Connecti- 
cut, it  is  enacted,  that  no  person  shall  be  convicted  of  a  capital  crime  without  the  testi- 
mony of  two  witnesses,  or  what  is  equivalent  thereto.     Rev.  Stat.  1849,  tit.  6,  §  159. 

*  Wood  V.  Hickok,  2  Wend.  501  ;  Parrott  v.  Thacher,  9  Pick.  426  ;  Thomas  v. 
Graves,  1  Const.  Rep.  150  [308]  ;  post,  vol.  ii.  §  252  and  notes.    As  attempts  have  been 

(a)  See  post,  vol.  iii.  §  289  and  notes  ;  given  in  Boardinan  v.  Spooner.  13  Allen 
Hinkle  v.  Wanzer,  17  How.  (U.  S.)  353;  (Mass.)  353,  p.  359,  but  the  law  is  now 
Lawton  v.  Kittredge,  30  N.  H.  500  ;  Ing  settled  that  the  fact  that  but  one  witness 
V.  Brown,  3  Md.  Ch.  Dec.  521  ;  Glenn  v.  testifies  to  a  usage,  is  only  important  as 
Grover,  3  Md.  212  ;  Jordon  v.  Fenno,  13  bearing  on  the  credibility  and  satisfactori- 
Ark.  593  ;  Johnson  v.  McGruder,  15  Mo.  ness  of  his  testimony  in  point  of  fact,  and 
365  ;  Walton  v.  Walton,  17  Id.  376;  White  does  not  affect  its  competency  as  matter  of 
V.  Crew,  16  Ga.  416;  Calkin  v.  Evans,  5  law.  Jones  v.  Hocy,  128  Mass.  585  ;  Vail 
Ind.  441.  V.  Rice,  1  Seld.  (N.  Y.)  155  ;  Robinson  v. 

(b)  A  dictum  to   this  effect   was  also  United  States,  13  Wall.  (U.  S.)  363. 


356  LAW    OF    EVIDENCE,  [PART    II. 

§  261.    When   written   evidence  required.      There   are    also   cer- 
tain mles^  for  the  proof  of  which  the  law  requires  a  deed,  or  other 

made  in  some  recent  instances  to  introduce  into  ecclesiastical  councils  in  the  United 
States  the  old  and  absurd  rules  of  the  canon  law  of  England,  foreign  as  they  are  to  the 
nature  and  genius  of  American  institutions,  the  following  statement  of  the  light  in  which 
those  rules  are  at  present  regarded  in  England  will  not  be  unacceptable  to  the  reader. 
It  is  taken  from  the  (London)  Law  Review,  &c.,  for  May,  1846,  pp.  132-135.  "In 
the  ecclesiastical  courts,  the  rule  requiring  a  jilurality  of  witnesses  is  carried  far  beyond 
the  vercre  of  common  sense  ;  and  although  no  recent  decision  of  those  courts  has,  we 
believe,°been  pronounced,  expressly  determining  that  five,  seven,  or  more  witnesses  are 
essential  to  constitute  full  proof,  yet  the  authority  of  Dr.  Aylifie,  who  states  that,  ac- 
cording to  the  canon  law,  this  amount  of  evidence  is  required  in  some  matters,  has  been 
very  lately  cited,  with  apparent  assent,  if  not  approbation,  by  the  learned  Sir  Herbert 
Jenner  Fust,  (b)  The  case  in  support  of  which  the  above  high  authority  was  quoted 
was  a  suit  for  divorce,  (c)  In  a  previous  action  for  criminal  conversation,  a  special  jury 
had  given  £500  damages  to  the  husband,  who,  with  ^female  servant, (rf)  had  found  his 
wife  and  the  adulterer  together  in  bed.  This  last  fact  was  deposed  to  by  the  sen'ant ; 
but  as  she  was  the  only  witness  called  to  prove  it,  and  as  her  testimony  was  uncorrob- 
orated, the  learned  judge  did  not  feel  himself  at  liberty  to  gi'ant  the  promoter's  prayer. 
This  doctrine,  that  the  testimony  of  a  single  witness,  though  ovini  exceptione  major,  is 
insufficient  to  support  a  decree  in  the  ecclesiastical  courts,  when  such  testimony  stands 
unsupported  by  adminicular  circumstances,  has  been  frequently  propounded  by  Lord 
Stowell,  both  in  suits  for  divorce,  (e)  for  defamation,  (/)  and  for  brawling;  (g)  and 
before  the  new  Will  Act  was  passed,  (/;)  Sir  John  Kicholl  disregarded  similar  evidence, 
as  not  amounting  to  legal  proof  of  a  testamentary  act.  (; )  In  the  case,  too,  of  Macken- 
zie V.  Yeo,  (j)  when  a  codicil  was  propounded,  purporting  to  have  been  duly  executed, 
and  was  deposed  to  by  one  attesting  witness  only,  the  other  having  married  the  legatee. 
Sir  Herbert  Jenner  Fust  refused  to  grant  probate,  though  he  admitted  the  witness  was 
unexceptionable,  on  the  ground  that  his  testimony  was  not  confirmed  by  adminicular 
circumstances,  and  that  the  probabilities  of  the  case  inclined  against  t\\Qfachim  of  such 
an  instrument,  (k)  In  another  case,  however,  the  same  learned  judge  admitted  a  paper 
to  probate  on  the  testimony  of  one  attesting  witness,  who  had  been  examined  a  lew 
days  after  the  death  of  the  testator,  though  the  other  witness,  whose  deposition  had  not 
been  taken  till  two  years  and  a  half  afterwards,  declared  that  the  will  was  not  signed  in 

(h)  Evans?;.  Evans,  1  Roberts,  Ecc.  171.  of  such  an  offence,  and  so  anxious  is  she 

The  pas.sao-e  cited  from  Avliffe,  Par.  444,  is  to  avoid  all  possibility  of  judicial  scandal, 

as  follows":  "Full  proof" is  made  by  two  This   is   adopting   with   a   vengeance  the 

or  three  witnesses  at  the  least.     For  there  principles  of  David   Hume   with  respect 

are  some  matters  which,  according  to  the  to  miracles. 

canon  law,  do  require  five,  seven,  or  more  (c)  Evans  v.   Evans,   1    Roberts,    Ecc. 

witnesses,  to  make  full  proof."     The  same  165. 

learned  commentator,  a  little  farther  on,  (d)  The   fact  tliat  the  witness  was  a 

after  explaining  that  "  liquid  proof  is  that  woman  does  not  seem  to  have  formed  an 

whichappears  to  the  judge  from  the  act  of  element    in  the  judgment   of   the  court, 

court,  since  that  cannot  be  properly  said  though   Dr.    Ayliffe  assures   his    readers, 

to  be  manifest  or  notorious,"  adds,    "By  with    becoming    gravity,    that,    "by   the 

the  canon  law,  a  Jew  is  not  admitted  to  canon  law,  more  credit  is  given  to  male 

give  evidence  against  a  Chri.stian,  especially  than  to  female  witnesses."     Par.  545. 

if  he  be  a  clergyman,  for  by  that  law  the  (e)  Donnellan  v.   Donnellan,    2  Hagg. 

proofs  against   a  clergyman   ought    to   be  144  (Suppl.). 

m,uch  clearer  than  against  a  layman."  Par.  (/)  Crompton  v.  Butler,  1  Cons.  460. 

443.     Dr.  Ayliffe  does  not  mention  what  {g)  Hutchins  v.  Denziloe,  1  Cons.  181, 

matters  require  this  superabundant  proof,  182. 

but  we  have  already  said  (vol.  i.  p.  380,  (h)  7  W.  IV.  and  1  Vict.  c.  26,  which, 

n. ),  that  in  the  case  of  a  cardinal  charged  by  §  34,  applies  to  wills  made  after  the 

with  incontinence,  the  proba.tio,  in  order  1st  of  January,  1833. 

to  be  plejia,   must  be  established  by  no  (i)  Theakstou  r.  Marson,  4  Hagg.  313, 

less  than  seven  eye-witnesses  ;  so  improba-  314. 

ble  does  it  appear  to  the  Church  that  one  (J)  3  Curtels,  125. 

of  her  highest  dignitaries  should  be  guilty  (k)  Gove  v.  Gawen,  3  Curteis,  151. 


CHAP.    XIV.]  NUMBER   OF   WITNESSES.  357 

written  document.     Thus,  by  the  statutes  of  the  United  States,^ 


1  United  States  Navigation  Act  of  1792,  c.  45,  §  14  ;  Stat.  1793,  c.  52  ;  Stat.  1793, 
c.  1  ;  Id.  c.  8,  vol.  i.  U.  S.  Statutes  at  Large  (Little  &  Brown's  ed.)  p.  294,  and  page 
305  ;  Abbott  on  Shipping,  by  Story,  p.  45  u.  (2)  ;  3  Kent,  Cmnm.  143,  149.  See  also 
Stat.  1850,  c.  27,  9  U.  S.  Statutes  at  Large  (L.  &  B.'s  ed. ),  440. 


his  presence.  In  this  case  there  was  a  formal  attestation  clause,  and  that  fact  was 
regarded  by  the  court  as  favoring  the  supposition  of  a  due  execution.  Though  the  cases 
cited  above  certainly  establish  beyond  dispute,  that,  by  the  canon  law  as  recognized  in 
cur  spiritual  courts,  one  uncorroborated  witness  is  insufficient,  they  as  certainly  decide, 
that,  in  ordinary  cases  at  least,  two  or  more  witnesses  need  not  depose  to  the  principal 
fact  ;  but  that  it  will  suffice,  if  one  be  called  to  swear  to  such  fact,  and  the  other  or 
others  speak  merely  to  confirmatory  circumstances.  Nay,  it  would  seem  from  some 
expressions  used,  that,  as  in  cases  of  perjury,  documentary  or  written  testimony,  or  the 
statements  or  conduct  of  the  party  lilielled,  may  supply  the  place  of  a  second  wit- 
ness. (I)  If,  indeed,  proceedings  be  instituted  under  the  provisions  of  some  statute, 
which  expressly  enacts  that  the  offence  shall  be  proved  by  two  lawful  witnesses,  as,  for 
instance,  the  Act  of  5  &  6  Edw.  VI.  c.  4,  which  relates  to  brawling  in  a  church  or 
churchyard,  the  court  might  feel  some  delicacy  about  presuming  that  such  an  enact- 
ment would  be  satisfied  by  calling  one  witness  to  the  fact,  and  one  to  the  circumstan- 
ces, (m)  It  seems  that  this  rule  of  the  canonists  depends  less  on  the  authority  of  the 
civilians  than  on  the  Mosaic  code,  which  enacts  that  one  witness  shall  not  rise  up  against 
a  :nian  for  any  iniquity  ;  but  at  the  mouth  of  two  or  three  witnesses  shall  the  matter  be 
established,  (n)  Indeed,  the  decretal  of  Pope  Gregory  the  Ninth,  which  enforces  the 
observance  of  this  doctrine,  (o)  expressly  cites  St.  Paul  as  an  authority,  where  he  tells 
the  Corinthians  that  'in  ore  duorum  vel  trium  testium  stat  omne  verbum.'  (p)  Now, 
however  well  suited  this  rule  might  have  been  to  the  peculiar  circumstances  of  the  Jew- 


(/)  In  Kenrick  v.  Kenrick,  4  Hagg. 
114,  the  testimony  of  a  single  witness  to 
adultery  being  corroborated  by  evidence  of 
the  misconduct  of  the  wife,  was  held  to  be 
sufficient,  Sir  John  NichoU  distinctly  stat- 
ing, "  that  there  need  not  be  two  witnesses; 
one  witness  and  circumstances  in  corrobo- 
ration are  all  that  the  law  in  these  cases 
requires,"  pp.  136,  137  ;  and  Dr.  Lush- 
ington  even  admitting,  that  "  he  was  not 
prepared  to  say  that  one  clear  and  unim- 
paached  witness  was  insufficient,"  p.  130. 
Sea  also  3  Burn.  Eccl.  L.  304. 

(m)  Hutchins  v.  Denziloe,  1  Cons.  182, 
per  Ld.  Stowell. 

{n)  Deut.  c.  19,  v.  15  ;  Deut.  c.  17  v. 
6  ;  Numbers,  c.  35,  v.  30.  [The  rule  of 
the  Jewish  law,  above  cited,  is  expressly 
applied  to  crimes  only,  and  extends  to  all 
persons,  lay  as  well  as  ecclesiastical.  If  it 
was  designed  to  have  an}'  force  beyond  the 
Jewish  theocracy  or  nation,  it  must,  of 
course,  be  the  paramount  law  of  the  crim- 
inal code  of  all  Christian  nations,  at  this 
day  and  forever.  St.  Paul  makes  merely 
a  passing  allusion  to  it  in  reference  to  the 
third  time  of  his  coming  to  the  Corinth- 
ians, not  as  an  exif^ting  rule  of  their  law, 
and  much  less  with  any  view  of  imposing 
on  them  the  municipal  regulations  of 
Moses.  The  Mosaic  law,  except  those 
portions  which  are  purely  moral  and  uni- 


versal in  their  nature,  such  as  the  ten 
commandments,  was  never  to  be  enforced 
on  any  converts  from  heathenism.  See 
Acts,  c.  15  ;  Galatians,  c.  2,  v.  11-14. 
Of  course,  it  is  not  binding  on  us.  Our 
Saviour,  in  Matt.  c.  18,  v.  16,  17,  directs 
that,  in  a  case  of  private  difference  between 
Christian  brethren,  the  injured  party  shall 
go  to  the  offender,  taking  with  him  "  one 
or  two  more,"  who  are,  in  the  first  in- 
stance, to  act  as  arbitrators  and  peace- 
makers ;  not  as  witnesses  ;  for  they  are 
not  necessarily  supposed  to  have  any  pre- 
vious knowledge  of  the  case.  Afterwards 
these  may  be  called  as  witnesses  before  the 
Church,  to  testify  what  took  place  on  that 
occasion  ;  and  their  number  will  satisfy 
any  rule,  even  of  the  Jewish  Church, 
respecting  the  number  of  witnesses.  But 
if  this  iiassage  is  to  be  taken  as  an  indica- 
tion of  the  number  of  witnesses,  or  quan- 
tity of  oral  proof  to  be  required,  it  cannot 
be  extended  beyond  the  case  for  which  it 
is  prescribed  ;  namely,  the  ease  of  a  private 
and  personal  wrong,  prosecuted  before  the 
Church,  in  the  way  of  ecclesiastical  ilisci- 
pline,  and  this  only  where  the  already 
existing  rule  requires  more  than  one  wit- 
ness. G.] 

(o)  Dec.  Greg.  lib.  2,  tit.  20,  c  2D. 

(p)  2  Cor.  c.  13,  V.  1. 


358  LAW    OF    EVIDENCE.  [PART    II. 

and  of  Great  Britain,^  the  grand  hill  of  sale  is  made  essential  to 
the  complete  transfer  of  any  ship  or  vessel ;  though,  as  between 
the  parties  themselves,  a  title  may  be  acquired  by  the  vendee 
without  such  document.  Whether  this  documentary  evidence  is 
required  by  the  law  of  nations  or  not,  is  not  perfectly  settled ;  but 
the  weight  of  opinion  is  clearly  on  the  side  of  its  necessity,  and 
that  without  this,  and  the  other  usual  documents,  no  national 
character  is  attached  to  the  vessel.  ^ 

§  262.  statute  of  frauds.  Written  evidence  is  also  required  of 
the  several  transactions  mentioned  in  the  Statute  of  Frauds, 
passed  in  the  reign  of  Charles  II.,  the  provisions  of  which  have 
been  enacted,  generally  in  the  same  words,  in  nearly  all  of  the 
United  States.^  The  rules  of  evidence  contained  in  this  cele- 
brated statute  are  calculated  for  the  exclusion  of  perjury,  by  re- 
quiring, in  the  cases  therein  mentioned,  some  more  satisfactory 
and  convincing  testimony  than  mere  oral  evidence  affords.  The 
statute  dispenses  with  no  proof  of  consideration  which  was  pre- 
viously required,  and  gives  no  efficacy  to  written  contracts  which 
they  did  not  previously  possess. ^  Its  policy  is  to  impose  such 
requisites  upon  private  transfers  of  property  as,  without  being 
hinderances  to  fair  transactions,  may  be  either  totally  incon- 
sistent with  dishonest  projects,  or  tend  to  multiply  the  chances 
of  detection. 3     The  object  of  the  present  work  will  not  admit  of 

2  Stat.  6  Geo.  IV.  c.  109  ;  4  Geo.  IV.  c.  48  ;  3  &  4  W.  IV.  c.  55,  §  31  ;  Abbott  on 
Shipping,  by  Shee,  pp.  47-52. 

3  Abbott  on  Shipping,  by  Story,  p.  1,  n.  (1),  and  cases  there  cited  ;  Id.  p.  27.  n.  (1); 
Id.  p.  45,  n.  (2);  Ohl  v.  Eagle  Ins.  Co.,  4  Mason,  172  ;  Jacobsen's  Sea  Laws,  b.  1,  c. 
2,  p.  17  ;  3  Kent,  Comm.  130. 

1  29  Car.  II.  c.  3  ;  4  Kent,  Comm.  95,  and  n.  [h),  (4th  edit.).  The  Civil  Code  of 
Louisiana,  art.  2415,  without  adopting  in  terms  the  provisions  of  the  Statute  of  Frauds, 
declares  generally  that  all  verbal  sales  of  immovable  property  or  slaves  shall  be  void. 
4  Kent,  Comm.  450,  n.  (a),  (4th  edit.). 

2  2  Stark.  Evid.  341. 

3  Roberts  on  Frauds,  pref.  xxii.  This  statute  introduced  no  new  principle  into  the 
law  ;  it  was  new  in  England  only  in  the  mode  of  proof  which  it  required.     Some  pro- 

ish  nation,  who,  like  the  Hindus  of  old,  the  modern  Greeks,  and  other  enslaved  and 
oppressed  people,  entertained  no  very  exalted  notions  on  the  subject  of  truth  ;  and  who, 
on  one  most  remarkable  occasion,  gave  conclusive  proof  that  even  the  necessity  of  calling 
two  witnesses  was  no  valid  protection  against  the  crime  of  perjury  (q),  —it  may  well 
be  doubted  whether,  in  the  present  civilized  age,  such  a  doctrine,  instead  of  a  protec- 
tion, has  not  become  an  impediment  to  justice,  and  whether,  as  such,  it  should  not  be 
abrogated.  That  this  was  the  opinion  of  the  common-law  judges  in  far  earlier  times  than 
the  present,  is  apparent  from  several  old  decisions,  which  restrict  the  rule  to  causes  of 
merely  spiritual  conusance,  and  determine  that  all  temporal  matters,  which  incidentally 
nrise  before  the  ecclesiastical  courts,  may,  and  indeed  must,  be  proved  there  as  elsewhere, 
by  such  evidence  as  the  common  law  would  allow."  (r)  See  also  Best's  Principles  of 
Evidence,  §§  390-394  ;  Wills  on  Circumst.  Evid.  p.  23  ;  2  H.  Bl.  101  ;  2  Inst.  608. 

(?)  St.  Matthew,  c.  26,  v.  60,  61.  Breedon   v.   Gill,   Ld.    Raym.   221.      See 

(r)   Richardson    v.  Disborow,  1  Vent,     further,  3  Burn,  Eccl.  L.  304-308. 
291  ;    Shotter   v.    Friend,    2   Salk.    547  ; 


CHAP,    XIV.]  STATUTE   OF  FRAUDS.  359 

an  extended  consideration  of  the  provisions  of  this  statute,  but 
will  necessarily  restrict  us  to  a  brief  notice  of  the  rules  of  evi- 
dence which  it  has  introduced. 

§  263.    Conveyances   of  interest  in  lands.      By  this   statute,  the 

tective  regulations,  of  the  same  nature,  may  be  found  in  the  early  codes  of  most  of  the 

northern  nations,  as  well  as  in  the  laws  of  the  Anglo-Saxon  princes  ;  the  prevention  of 
frauds  and  perjuries  being  sought,  agreeably  to  the  sinipliuity  of  tliose  unlettered  times, 
by  requiring  a  certain  numlier  of  witnesses  to  a  valid  sale,  and  son)otimes  by  restricting 
such  sales  to  particular  places.  In  the  Anglo-Saxon  laws,  such  regulations  were  quite 
familiar;  and  the  Statute  of  Frauds  was  merely  the  revival  of  obsolete  provisions,  de- 
manded by  the  circumstances  of  the  times,  and  adapted,  in  a  new  mode  of  proof,  to  the 
improved  condition  and  habits  of  the  trading  community.  By  the  laws  of  Lotharius 
and  Edric,  Kings  of  Kent,  §  16,  if  a  Kentish  man  purchased  anything  in  London,  it 
must  be  done  in  the  presence  of  two  or  three  good  citizens  or  of  the  mayor  of  the  city. 
(Canciani,  Leges  Barharorum  Antiqute,  vol.  iv.  p.  231.)  The  laws  of  King  Edward  the 
Elder  (De  jure  et  lite,  §  1)  required  the  testimony  of  the  mayor,  or  some  other  credible 
person,  to  every  sale,  and  prohibited  all  sales  out  of  the  city.  Cancian.  ub.  sup.  p. 
256.  King  Athelstan  prohibited  sales  in  the  country,  above  the  value  of  twenty  pence ; 
and,  for  those  in  tlie  city,  he  required  the  same  formalities  as  in  the  laws  of  Edward. 
(Id.  pp.  2(>1,  262,  LL.  Athelstani,  §  12.)  By  the  laws  of  King  Ethelred,  every  free- 
man was  required  to  have  his  surety  (fidejussor),  without  whom,  as  well  as  other  evi- 
dence, there  could  be  no  valid  sale  or  barter.  "NuUus  homo  faciat  alterutrum,  nee 
emat,  nee  permutet,  nisi  fidejussorem  habeat,  et  testimonium."  (Id.  p.  287,  LL. 
Ethelredi,  §g  1,  4.)  In  the  Concilinm  Seculare  of  Canute,  §  22,  it  was  provided,  that 
there  should  be  no  .sale,  above  the  value  of  four  pence,  whether  in  the  city  or  country, 
without  the  presence  of  four  witnesses.  (Id.  p.  305.)  The  same  rule  in  nearly  the 
same  words,  was  enacted  by  William  the  Conqueror.  (Id.  p.  357,  LL.  Guil.  Conq. 
§  43. )  Afterwards,  in  the  charter  of  the  Conqueror  (§  60),  no  cattle  ( "  nulla  viva  pecu- 
nia,"  seil.  animalia)  could  be  legally  sold,  unless  in  the  cities,  and  in  the  presence  of 
three  witnesses.  (Cancian  ub.  sup.  p.  360.  Leges  Anglo-Saxonica?,  p.  198  (o).) 
Among  the  ancient  Sueones  and  Goths,  no  .sale  was  originally  permitted  but  in  the 
presence  of  witnesses,  and  (per  mediatores)  through  the  medium  of  brokers.  The  wit- 
nesses were  reipiired  in  order  to  preserve  the  evidence  of  the  sale  ;  and  the  brokers,  or 
mediators  (ut  pretium  moderarentur),  to  prevent  extortion,  and  see  to  the  title.  But 
these  formalities  were  afterwards  dispensed  with,  except  in  the  sale  of  articles  of  value 
(res  pj'etiosie,)  or  of  great  amount.  (Cancian.  ub.  sup.  p.  231,  n.  4.)  Alienations 
of  lands  were  made  only  (publicis  Uteris)  by  documents  legally  authenticated.  By  the 
Danish  law,  lands  in  the  city  or  country  might  be  exchanged  without  judicial  appraise- 
ment (pertabulas  manusignoque  permutantis  affixas,)  by  deed,  under  the  hand  and  seal 
of  the  party.  (Id.  p.  261,  n.  4.)  The  Roman  law  required  written  evidence  in  a 
great  variety  of  cases,  embracing,  among  many  others,  all  those  mentioned  in  the 
Statute  of  Frauds  ;  which  are  enumerated  by  N.  De  Lescut,  De  Exam.  Testium,  Cap. 
26  (Farinac.  Oper.  Tom.  ii.  App.  243).  See  also  Brederodii  Repertorium  Juri.s,  col. 
984,  verb.  Scriptura.  Similar  provisions,  extending  in  some  cases  even  to  the  proof  of 
payment  of  debts,  were  enacted  in  the  statutes  of  Bologna  (A.  D.  1454),  Milan  (1498), 
and  Naples,  which  are  prefixed  in  Danty'sTraite  de  la  Preuve  par  Temuins.  By  a  per- 
petual edict  in  the  Archduchy  of  Flanders  (A.  D.  1611),  all  sales,  testaments,  and  con- 
tracts whatever,  above  the  value  of  three  hundred  livres  Artois,  were  required  to  be  in 
writing.  And  in  France,  by  the  Ordonnance  de  Moulins  (A.  D.  1566)  confirmed  by 
that  of  1667,  parol  or  verlml  evidence  was  excluded  in  all  cases,  where  the  subject- 
matter  exceeded  the  value  of  one  hundred  livres.  See  Danty  de  la  Preuve,  tSbc,  passim; 
7  Poth.  CEuvres,  &c.,  4to,  p.  56  ;  Traite'  de  la  Proct'd.  Civ.  c.  3,  art.  4,  Regie  3me  ;  1 
Poth.  on  Obi.  part  4,  c.  2,  arts.  1,  2,  3,  5  ;  Commercial  Code  of  France,  art.  109.  The 
dates  of  these  regulations,  and  of  the  Statute  of  Frauds,  and  the  countries  in  which 
they  were  adopted,  are  strikingly  indicative  of  the  revival  and  progress  of  commerce. 
Among  the  Jews,  lands  were  conveyed  by  deed  only,  from  a  very  early  period,  as  is  evi- 
dent from  the  transaction  mentioned  in  Jer.  xxxii.  10-12,  where  the  principal  docu- 
ment was  "sealed  according  to  the  law  and  custom,"  in  the  presence  of  witnesses  ;  and 
another  writing,  or  "open  evidence,"  was  also  taken,  probably,  as  Sir  John  Chardin 
thought,  for  common  use,  as  is  the  manner  in  the  East  at  this  day. 


360  LAW   OF  EVIDENCE.  [PART  II. 

necessity  of  some  writing  is  universally  required,  upon  all  con- 
vet/ances  of  lands,  or  interest  in  lands,  for  more  than  three  years ; 
all  interests,  whether  of  freehold  or  less  than  freehold,  certain  or 
uncertain,  created  by  parol  without  writing,  being  allowed  only 
the  force  and  effect  of  estates  at  will ;  except  leases,  not  exceed- 
ing the  term  of  three  years  from  the  making  thereof,  whereon  the 
rent  reserved  shall  amount  to  two-thirds  of  the  improved  value. 
The  term  of  three  years,  for  which  a  parol  lease  may  be  good, 
must  be  only  three  years  from  the  making  of  it ;  but  if  it  is  to 
commence  infuturo,  yet  if  the  term  is  not  for  more  than  three 
years,  it  will  be  good.  And  if  a  parol  lease  is  made  to  hold  from 
year  to  year,  during  the  pleasure  of  the  parties,  this  is  adjudged 
to  be  a  lease  only  for  one  year  certain,  and  that  every  year  after 
it  is  a  new  springing  interest,  arising  upon  the  first  contract,  and 
parcel  of  it;  so  that  if  the  tenant  should  occupy  ten  years,  still 
it  is  prospectively  but  a  lease  for  a  year  certain,  and  therefore 
good,  within  the  exception  of  the  statute ;  though  as  to  the  time 
past  it  is  considered  as  one  entire  and  valid  lease  for  so  many 
years  as  the  tenant  has  enjoyed  it.^  (a)  But  though  a  parol  lease 
for  a  longer  period  than  the  statute  permits  is  void  for  the  excess, 
and  may  have  only  the  effect  of  a  lease  for  a  year,  yet  it  may  still 
have  an  operation,  so  far  as  its  terms  apply  to  a  tenancy  for  a 
year.  If,  therefore,  there  be  a  parol  lease  for  seven  years  for  a 
specified  rent,  and  to  commence  and  end  on  certain  days  expressly 
named ;  though  this  is  void  as  to  duration  of  the  lease,  yet  it  must 
regulate  all  the  other  terms  of  the  tenancy. ^  {b) 

§  264.  Leases.  By  the  same  statute,  no  leases,  estates,  or  in- 
terests, either  of  freehold,  or  terms  of  years,  or  an  uncertain 
interest,  other  than  copyhold  or  customary  interests  in  lands, 
tenements,  or  hereditaments,  can  be  assigned,  granted,  or  surren- 
dered, unless  by  deed  or  writing,  signed  by  the  party,  or  his 
agent  authorized  by  writing, ^  or  by  operation  of  law.  At  com- 
mon law,  surrenders  of  estates  for  life  or  years  in  things  corpo- 
real were  good,  if  made  by  parol;  but  things  incorporeal,  lying 

3  Roberts  on  Frauds,  pp.  241-244. 

2  Doe  V.  Bell,  5  T.  R.  471. 

1  In  the  statutes  of  some  of  the  United  States,  the  words  "authorized  by  writing" 
are  omitted  ;  in  which  case  it  is  sufficient  that  the  agent  be  authorized  by  parol,  in  or- 
der to  make  a  binding  contract  of  sale,  provided  the  contract  itself  be  made  in  writing  ; 
but  his  authority  to  convey  must  be  by  deed.  Story  on  Agency,  §  50  ;  Alna  v.  Plum- 
mer,  4  Greenl.  258. 

(a)  Browne,  Statute  of  Frauds,  §§  1-40.     last  (4th)  edition  of  Browne  on  the  Statute 
For  a  discussion  of  the  law  of  the  Statute     of  Frauds,  passim. 
of  Frauds,  the  reader  is  referred  to  the  {b)  Browne,  Statute  of  Frauds,  §  39. 


CHAP.    XIV.]  STATUTE    OF    FRAUDS.         '  361 

in  grant,  could  neither  be  created  nor  surrendered  but  by  deed.^ 
The  effect  of  this  statute  is  not  to  dispense  with  any  evidence 
required  by  the  common  law,  but  to  add  to  its  provisions  some- 
what of  security,  by  requiring  a  new  and  more  permanent  species 
of  testimony.  Wherever,  therefore,  at  common  law,  a  deed  was 
necessary,  the  same  solemnity  is  still  requisite;  but  with  respect 
to  lands  and  tenements  in  possession,  which  before  the  statute 
might  have  been  surrendered  by  parol,  that  is,  by  words  only,  some 
note  in  writing  is  now  made  essential  to  a  valid  surrender. -^  (a) 

§  265.  Cancellation  of  deeds.  As  to  the  effect  of  the  cancella- 
tion of  a  deed  to  devest  the  estate,  operating  in  the  nature  of  a 
surrender,  a  distinction  is  taken  between  things  lying  in  livery, 
and  those  which  lie  only  in  grant.  In  the  latter  case,  the  subject 
being  incorporeal,  and  owing  its  very  existence  to  the  deed,  it 
appears  that  at  common  law  the  destruction  of  the  deed  by  the 
party,  with  intent  to  defeat  the  interest  taken  under  it,  will  have 
that  effect.  Without  such  intent,  it  will  be  merely  a  case  of 
casual  spoliation.  But  where  the  thing  lies  in  livery  and  manual 
occupation,  the  deed  being,  at  common  law,  only  the  authentica- 
tion of  the  transfer,  and  not  the  operative  act  of  conveying  the 
property,  the  cancellation  of  the  instrument  will  not  involve  the 
destruction  of  the  interest  conveyed.  ^  It  has  been  thought,  that, 
since  writing  is  now  by  the  statute  made  essential  to  certain 
leases  of  hereditaments  lying  in  livery,  the  destruction  of  the 
lease  would  necessarily  draw  after  it  the  loss  of  the  interest  itself.  ^ 
But  the  better  opinion  seems  to  be,  that  it  will  not;  because  the 
intent  of  the  statute  is  to  take  away  the  mode  of  transferring  in- 
terests in  lands  by  symbols  and  words  alone,  as  formerly  used, 
and  therefore  a  surrender  by  cancellation,  which  is  but  a  sign, 
is  also  taken  away  at  law ;  though  a  symbolical  surrender  may 
still  be  recognized  in  chancery  as  the  basis  of  relief.^     The  sur- 

2  Co.  Lit.  337  b,  338  a  ;  2  Shep.  Touchst.  (by  Preston),  p.  800. 
8  Roberts  on  Frauds,  p.  248. 

1  Roberts  on  Frauds,  pp.  248,  249  ;  Bolton  v.  Bp.  of  Carlisle,  2  H.  Bl.  263,  264  ; 
Doe  V.  Bingham,  4  B.  &  A.  672  ;  Holbrook  v.  Tirrell,  9  Pick.  105  ;  Botsford  v.  More- 
house, 4  Conn.  550  ;  Gilbert  v.  Bulkley,  5  Conn.  262  ;  Jackson  v.  Chase,  2  Johns.  86. 
See  infra,  §  568. 

2  4  Bac.  Abr.  21 8,  tit.  Leases  and  Terms  for  Years,  T. 

3  Roberts  on  Frauds,  pp.  251,  252  ;  Magennis  v.  McCullogh,  Gilb.  Eq.  235  ;  Natch- 
bolt  V.  Porter,  2  Vern.  112  ;  4  Kent,  Comm.  104;  4  Cruise's  Dig.  p.  85  (Greonleafs 
ed.),  tit.  32,  c.  7,  §§  5-7,  2d  ed.),  (1856)  vol.  ii.  p.  413  et  scq.  ;  Roe  v.  Archb.  of  York, 
6  East,  86.  In  several  of  the  United  States,  where  the  owner  of  lands  which  he  holds 
by  an  unregistered  deed  is  about  to  sell  his  estate  to  a  stranger,  it  is  not  unusual  for 
him  to  surrender  his  deed  to  his  grantor,  to  be  cancelled,  the  original  grantor  tliereupon 
making  a  new  deed  to  the  new  purchaser.  This  re-delivery  is  allowed  to  have  the  practical 

(a)  Browne,  Statute  of  Frauds,  §§  41-57. 


362  LAW   OF   EVIDENCE.  [PART   II. 

render  in  law,  mentioned  in  the  statute,  is  where  a  tenant  accepts 
from  his  lessor  a  new  interest,  inconsistent  with  that  which  he 
previously  had ;  in  which  case  a  surrender  of  his  former  interest 
is  presumed.*  (c) 

§  266.  Declarations  of  trust.  This  statute  further  requires 
that  the  declaration  or  creation  of  trusts  of  lands  (a)  shall  be 
manifested  and  proved  only  by  some  writinj^,  signed  by  the  party 
creating  the  trust;  and  all  grants  and  assignments  of  any  such 
trust  or  confidence  are  also  to  be  in  writing,  and  signed  in  the 
same  manner.  It  is  to  be  observed,  that  the  same  statute  does 
not  require  that  the  trust  itself  be  created  by  writing,  but  only 
that  it  be  manifested  and  proved  by  writing;  plainly  meaning 
that  there  should  be  evidence  in  writing,  proving  that  there  was 
a  trust,  and  what  the  trust  was.  A  letter  acknowledging  the 
trust,  and,  a  fortiori,  an  admission,  in  an  answer  in  chancery,  has 
therefore  been  deemed  sufficient  to  satisfy  the  statute.  ^  Result- 
ing trusts,  or  those  which  arise  by  implication  of  law,  are  spe 
cially  excepted  from  the  operation  of  the  statute,  {h)  Trusts  of 
this  sort  are  said  by  Lord  Hardwicke  to  arise  in  three  cases :  first, 
where  the  estate  is  purchased  in  the  name  of  one  person,  but  the 
money  paid  for  it  is  the  property  of  another ;  secondly,  where  a 
conveyance  is  made  in  trust,  declared  only  as  to  part,  and  the 
residue  remains  undisposed  of,  nothing  being  declared  respect- 
ing it;  and,  thirdly,  in  certain  cases  of  fraud. 2  Other  divisions 
have  been  suggested ;  ^  but  they  all  seem  to  be  reducible  to  these 
three  heads.  In  all  these  cases,  it  seems  now  to  be  generally  con- 
effect  of  a  surrender,  or  reconveyance  of  the  estate,  the  first  grantee  and  those  claiming 
under  him  not  being  permitted  to  give  parol  evidence  of  the  contents  of  the  deed,  thus 
surrendered  and  destroyed  with  his  consent,  with  a  view  of  passing  a  legal  title  to  his 
own  alieupe.  Farrar  v.  Farrar,  4  N.  H.  191  ;  Commonwealth  v.  Dudley,  10  Mass.  403  ; 
Holbrook  V.  Tirrell,  9  Pick.  105  ;  Barrett  v.  Thorndike,  1  Greenl.  78.  See  4  Cruises 
Dig.  tit.  32,  c.  1,  §  15,  n.  (Gieenleafs  ed.)  [2d  ed.  (1856)  vol.  u.  p.  300]. 

'^  Roberts  on  Frauds,  pp.  259,  260.  ,.     ,  ^  onr     t>  v    ^ 

1  Forster  v  Hale,  3  Ves.  696,  707,  per  Ld.  Alvanley  ;  4  Kent,  Comm.  305  ;  Koberts 
on  Frauds,  p.  95  ;  1  Cruise's  Dig.  (by  Greenleaf)  tit.  12,  c.  1,  §§  36,  37  p.  390,  2d  ed 
(1856)  vol  i  p.  369  ;  Lewin  on  Trusts,  p.  30.  Courts  of  equity  will  receive  parol 
evidence,  not  only  to  explain  an  imiierfect  declaration  of  a  testator's  intentions  of  trust, 
but  even  to  add  conditions  of  trust  to  what  appears  a  simple  devise  or  bequest.  But  it 
must  either  be  fairlv  presumable,  that  the  testator  would  have  made  the  requisite 
declaration,  but  for  the  undertaking  of  the  person  whom  he  trusted,  or  else  it  must  be 
shown  to  be  an  attempt  to  create  an  illegal  trust.  Gresley  on  Evid.  in  Equity,  p.  108 
[292]  ;  Strode  v.  Winchester,  1  Dick.  397.  See  White  &  Tudor  s  Leading  Cases  m 
Equitv,  vol.  ii.  part  1,  p.  591. 

2  Lloyd  V.  Spillet,  2  Atk.  148,  150. 
8  1  Lbraax's  Digest,  p.  200. 

(c)  Browne,  Statute  of  Frauds,  §§  44,     ered  by  the  Statute,     Browne,  Statute  of 
59,   60  ;  Lyon  v.  Ree<l,  13  M.  &  W.  306.     Frauds,  §  82. 

(a)  Trusts  of  personalty  are  not  cov-  {b)  Browne,  Statute  of  Frauds,  §  98. 


CHAP.    XIV.]  STATUTE   OF   FRAUDS.  363 

ceded  that  parol  evidence,  though  received  with  great  caution,  is 
admissible  to  establish  the  collateral  facts  (not  contradictory  to 
the  deed,  unless  in  the  cause  of  fraud)  (c)  from  which  a  trust 
may  legally  result;  and  that  it  makes  no  difference  as  to  its  ad- 
missibility whether  the  supposed  purchaser  be  living  or  dead.^ 

§  267.  Executors  and  administrators.  Written  evidence,  signed 
by  the  party  to  be  charged  therewith,  or  by  his  agent,  is  by  the 
same  statute  required  in  every  case  of  contract  by  an  executor  or 
administrator,  to  answer  damages  out  of  his  own  estate;  every 
promise  of  one  person  to  answer  for  the  debt,  default,  or  miscar- 
riage of  another ;  every  agreement  made  in  consideration  of  mar- 
riage, or  which  is  not  lo  be  performed  within  a  year  from  the  time 
of  making  it ;  and  every  contract  for  the  sale  of  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them.  The 
like  evidence  is  also  required  in  every  case  of  contract  for  the 
sale  of  goods,  for  the  price  of  £10  sterling  or  upwards  ^  unless 
the  buyer  shall  receive  part  of  the  goods  at  time  of  sale,  or  give 
something  in  earnest,  to  bind  the  bargain,  or  in  part  payment. ^ 

§  2(58.  Evidence  may  be  collected  from  several  writings.  It  is 
not  necessary  that  the  written  evidence  required  by  the  Statute 
of  Frauds  should  be  comprised  in  a  single  document,  nor  that  it 
should  be  drawn  up  in  any  particular  form.     It  is  sufficient,  if  the 

*  3  Sugden  on  Vendors,  256-260  (10th  ed.)  ;  2  Story,  E(i.  Jurisp.  §  1201,  n. ;  Lench 
V.  Lench,  10  Ves.  517  ;  Boyd  v.  McLean,  1  Johns.  Ch.  582  ;  4  Kent,  Comm.  305  ; 
Pritchard  v.  Brown,  4  N.  H.  397.  See  also  an  article  in  3  Law  Mag.  p.  131,  where 
the  English  cases  on  this  subject  are  reviewed.  The  American  decisions  are  collected 
in  Mr.lland's  note  to  the  case  of  Goodwin  v.  Hubbard,  15  Mass.  218.  In  Massachu- 
setts, there  are  dicta  apparently  to  the  effect  that  parol  evidence  is  not  admissible  in 
these  cases  ;  but  the  point  does  not  seem  to  have  been  directly  in  judgment,  unless  it 
is  involved  in  the  decision  in  BuUard  v.  Brigg.s,  7  Pick.  533,  where  parol  evidence  was 
admitted.  See  Storer  v.  Batson,  8  Mass.  431,  442  ;  Northampton  Bank  v.  Whiting, 
12  Mass.  104,  109  ;  Goodwin  v.  Hubbard,  15  Mass.  210,  217. 

1  The  sum  here  required  is  different  in  the  several  States  of  the  Union,  varpng  from 
thirty  to  fifty  dollars.  But  the  rule  is  everywhere  the  same.  By  the  statute  of  9  Geo. 
IV.  c.  14,  this  provision  of  the  Statute  of  Frauds  is  extended  to  contracts  executory, 
for  goods  to  be  manufactured  at  a  future  day,  or  otherwise  not  in  a  state  fit  for  delivery 
at  the  time  of  making  the  contract.  Shares  in  a  joint-stock  company,  or  a  projected 
railway,  are  held  not  to  be  goods  or  chattels,  within  the  meaning  ot  the  statute.  Hum- 
ble V.  Mitchell,  11  Ad.  &  El.  205  ;  Tempest  v.  Kilner,  3  C.  B.  251  ;  Bowlby  v.  Bell, 
Id.  284. 

2  2  Kent,  Comm.  49.3-495. 

(c)  It   is   now  settled    law  that   parol  does  not  go  to  contradict   the   statement 

evidence  is  admissible  to  show  a  payment  in   the   deed   that   the  grantee   paid   the 

by  a  third  person,  in  contradiction  of  the  money,  but  to  show  the  further  fact  that 

face  of  the  deed,   expressing   payment  to  the  money  did  not  belong  to  him,  but  to 

have  been  made  by  the  nominal  grantee,  the  person  claiming  the  trust. 
Browne,  Statute  of  Frauds,  4th  ed.  §  93  ;  Parol  evidence  may  be  received  to  set 

Livermoreu.  Alilrich,  5  Gush.  (Mass.)  435;  up  such  a  trust,  even  after  the  death  of 

Powell  V.  Monson,  &c.  Company,  3  Mason,  the  nominal  purchaser.     Browne,  Statute 

C.    C.    347.     It   is   said   in    Pritchard   v.  of  Frauds,  4tb  ed.  §  93. 
Brown,  4  N.  H.  397,  that  such  evidence 


864  LAW   OP   EVIDENCE.  [PART  II. 

contract  can  hQ  plainly  made  out,  in  all  its  terms,  from  any  writings 
of  the  part}',  or  even  from  his  correspondence.  But  it  must  all  be 
collected  from  the  writings  ;  verbal  testimony  not  being  admis- 
sible to  supply  any  defects  or  omissions  in  the  written  evidence.^ 
For  the  policy  of  the  law  is  to  prevent  fraud  and  perjury,  by  tak- 
ing all  the  enumerated  transactions  entirely  out  of  the  reach  of 
any  verbal  testimony  whatever.  Nor  is  the  place  of  signature 
material.  It  is  sufficient  if  the  vendor's  name  be  printed,  in  a 
bill  of  parcels,  provided  the  vendee's  name  and  the  rest  of  the 
bill  are  written  by  the  vendor. 2.  Even  his  signature,  as  a  wit- 
ness to  a  deed,  which  contained  a  recital  of  the  agreement,  has 
been  held  sufficient,  if  it  appears  that  in  fact  he  knew  of  the  re- 
cital.^ Neither  is  it  necessary  that  the  agreement  or  memoran- 
dum be  signed  by  both  parties,  or  that  both  be  legally  bound  to 
the  performance;  for  the  statute  only  requires  that  it  be  signed 
"by  the  party  to  be  charged  therewith,"  that  is,  by  the  defendant 
against  whom  the  performance  or  damages  are  demanded.'*  (a) 

1  Boydell  v.  Drummond,  11  East,  142  ;  Chitty  on  Contracts,  pp.  314-316  (4th  Am. 
ed.)  ;  2  Kent,  Comm.  511  ;  Eoberts  on  Frauds,  p.  121  ;  Tavvney  v.  Crowther,  3  Bro. 
Ch.  161,  318  ;  4  Cruise's  Dig.  (by  Greenleaf)  jip.  33,  35-37,  tit.  32,  c.  3,  §§  3,  16-26 
[Greenleaf's  2d  ed.  (1856)  vol.  ii.  pp.  344-351  and  notes]  ;  Cooper  v.  Smith,  15  East, 
103  ;  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  280-282  ;  Abeel  v.  Radcliff,  13  Johns. 
297  ;  Smith  v.  Arnold,  5  Mason,  414  ;  Ide  v.  Stanton,  15  Vt.  685  ;  Sherburne  v. 
Shaw,  1  N.  H.  157  ;  Adams  i".  McMillan,  7  Port.  73  ;  Gale  v.  Nixon,  6  Cowen,  445  ; 
Meadows  v.  Meadows,  3  McCord,  458  ;  Nichols  v.  Johnson,  10  Conn.  192.  Whether 
the  Statute  of  Frauds,  in  requiring  that,  in  certain  cases,  the  "agreement"  be  proved 
by  writing,  requires  that  the  "  consideration  "  should  be  expressed  in  the  writing,  as 
part  of  the  agreement,  is  a  point  which  has  been  much  discussed,  and  upon  which  the 
English  and  some  American  cases  are  in  direct  opposition.  The  English  courts  hold 
the  affirmative.  See  Wain  v.  Warlters,  5  East,  10,  reviewed  and  confirmed  in  Saun- 
ders V.  Wakefield.  4  B.  &  Aid.  595  ;  and  their  construction  has  been  followed  in  New 
York,  Sears  v.  Brink,  3  Johns.  210  ;  Leonard  v.  Vredenbuig,  8  Johns.  29.  In  New 
Hampshire,  in  Neelson  v.  Sanborne,  2  N.  H.  413,  the  same  construction  seems  to  be 
recognized  and  approved.  But  in  Massachusetts,  it  was  rejected  by  the  whole  court, 
upon  great  consideration,  in  Packard  v.  Pachardson,  17  Mass.  122.  So  in  Maine,  Levy 
V.  Merrill,  4  Greenl.  180  ;  in  Connecticut,  Sage  v.  Wilcox,  6  Conn.  81  ;  in  New  Jersey, 
Buckley  v.  Beardslee,  2  South.  570  ;  and  in  North  Carolina,  Miller  v.  Irvine,  1  Dev. 
&  Batt.  103  ;  and  now  in  South  Carolina,  Fyler  v.  Givens,  Riley's  Law  Cas.  pp.  56,  62, 
overruling  Stephens  v.  Winn,  2  N.  &  McC.  372,  n.  ;  Woodward  v.  Pickett,  Dudley's 
So.  Car.  Rep.  p.  30.  See  also  Violett  v.  Patton,  5  Cranch,  142;  Taylor  v.  Ross,  3 
Yerg.  330  ;  3  Kent,  Comm.  122  ;  2  Stark.  Evid.  350  (6th  Am.  ed.). 

^  Saunderson  v.  Jackson,  2  B.  &  P.  238,  as  explained  in  Champion  v.  Plummer,  1 
N.  R.  254  ;  Roberts  on  Frauds,  pp.  124,  125  ;   Penniman  v.  Hartshorn,  13  Mass.  87. 

3  Welford  v.  Beezely,  1  Ves.  6  ;  s.  c.  1  Wils.  118.  The  same  rule,  with  its  quali- 
fication, is  recognized  in  the  Roman  law,  as  applicable  to  all  subscribing  witnesses, 
except  those  whose  official  duty  obliges  them  to  subscribe,  such  as  notaries,  &c. 
Menochius,  De  Praesump.   lib.  3  ;  Pnesump.   66,  per  tot. 

*  Allen  V.  Bennet,  3  Taunt.  169  ;  3  Kent,  Comm.  510,  and  cases  there  cited  ;  Shir- 

(n)  The  New  York   statute   seems   to  rections   of  the   party  sent    by  telegraph 

require  a  contract  for   the   sale  of  goods  accepting  a  proposition  wU  amount  to  a 

above  the  value  of  fifty  dollars  to  be  signed  .signing  within  the    statute.      Dunning  i'. 

bv  both  parties.     Dykers  v.  Townsend,  24  Roberts,  35  Barb.  (N.  Y.)  463. 
N,  Y.  Ct.  A  pp.  57.     But  the  verbal  di- 


CHAP.    XIV.]  STATUTE    OP    FRAUDS.  365 

§  269.  Writings  executed  by  attorney.  Where  the  act  is  done 
bi/ procuration,  it  is  not  necessary  that  the  agent's  authority  should 
be  in  writing;  except  in  those  cases  where,  as  in  the  first  section 
of  the  statute  of  29  Car.  II.  c.  3,  it  is  so  expressly  required. 
These  excepted  cases  are  understood  to  be  those  of  an  actual  con- 
veyance, not  of  a  contract  to  convey ;  and  it  is  accordingly  held, 
that  though  the  agent  to  make  a  deed  must  be  authorized  by  deed, 
yet  the  agent  to  enter  into  an  agreeme7it  to  convey  is  sufficiently 
authorized  by  parol  only.  ^  (a)  An  auctioneer  is  regarded  as  the 
agent  of  both  parties,  whether  the  subject  of  the  sale  be  lands  or 
goods ;  and  if  the  whole  contract  can  be  made  out  from  the  memo- 
randum and  entries  signed  by  him,  it  is  sufficient  to  bind  them 
both. 2  (h) 

§270.  Meaning  of  the  word  "  lands. "  The  word  lands,  in  this 
statute,  has  been  expounded  to  include  every  claim  of  a  perma- 
nent right  to  hold  the  lands  of  another,  for  a  particular  purpose, 
and  to  enter  upon  them  at  all  times,  without  his  consent.  It  has 
accordingly  been  held,  that  a  right  to  enter  upon  the  lands  of  an- 
other, for  the  purpose  of  erecting  and  keeping  in  repair  a  milldam 
embankment,  and  canal,  to  raise  water  for  working  a  mill,  is  an 
interest  in  land,  and  cannot  pass  but  by  deed  or  writing.  ^  (a)  But 
where  the  interest  is  vested  in  a  corporation,  and  not  in  the  indi- 
vidual corporators,  the  shares  of  the  latter  in  the  stock  of  the 
corporation  are  deemed  personal  estate. ^ 

§  271.  Same  subject.  The  main  difficulties  under  this  head 
have  arisen  in  the  application  of  the  principle  to  cases  where  the 
subject  of  the  contract  is  trees,  growing  crops,  or  other  thiyigs 
annexed  to  the  freehold.     It  is  well  settled  that  a  contract  for  the 

ley  V.  Shirley,  7  Blackf.  452  ;  Davis  v.  Shields,  26  Wend.  341  ;  Douglass  v.  Spears,  2 
N.  &  McC.  207. 

1  Story  on  Agency,  §  50  ;  Coles  v.  Trecothick,  9  Ves.  250  ;  Clinan  v.  Cooke,  1  Sch. 

6  Lef.  22  ;  Roberts  on  Frauds,  p.  113,  n.  (54).  If  an  agent,  having  only  a  verbal 
authority,  should  execute  a  bond  in  the  name  of  his  principal,  and  afterwards,  he  be 
regularly  constituted  by  letter  of  attorney,  bearing  date  prior  to  that  of  the  deed,  this 
is  a  subsequent  ratificatioTi,  operating  by  estoppel  against  the  piincipal,  and  rendering 
the  bond  valid  in  law.     JMiUiken  v.  Coombs,  1  Greenl.  343.     And  see  Ulen  v.  Kittredge, 

7  Mass.  233. 

2  Emmerson  v.  Heelis,  2  Taunt.  38  ;  White  v.  Proctor,  4  Taunt.  209  ;  Long  on  Sales, 
p.  38  (Rand's  ed.)  ;  Story  on  Agency,  §  27,  and  cases  there  cited;  Cleaves  v.  Foss,  4 
Greenl.  1  ;  Roberts  on  Frauds,  pp.'llS,  114,  n.  (56)  ;  2  Stark.  Evid.  352  (6th  Am. 
ed.);  Davis  v.  Robertson,  1  Mills  (S.  C),  71  ;  Adams  v.  McMillan,  7  Port.  73  ;  4 
Cruise's  Dig.  tit.  32,  c.  3,  §  7,  n.  (Greenleafs  ed.)  [2d  ed,  (1856)  vol.  ii.  p.  346]. 

1  Cook  V.  Stearns,  11  Mass.  533. 

2  Bligh  V.  Brent,  2  Y.  &  Col.  268,  295,  296  ;  Bradley  v.  Holdsworth,  3  M.  &  W.  422. 

(a)  Browne,  Statute  of  Frauds,  §  355-  (a)  Browne,  Statute  of  Frauds,  §§  227- 
366.                                                                    262. 

(b)  Browne,  Statute  of  Frauds,  §§  347, 
360. 


366  LAW   OP    EVIDENCE.  [PART   II 

sale  oi  fruits  of  the  earth,  ripe,  but  not  yet  gathered,  is  not  a  con- 
tract for  any  interest  in  lands  and  so  not  within  the  Statute  of 
Frauds,  though  the  vendee  is  to  enter  and  gather  them.^  And 
subsequently  it  has  been  held,  that  a  contract  for  the  sale  of  a 
crop  of  potatoes  was  essentially  the  same,  whether  they  were  cov- 
ered with  earth  in  a  field,  or  were  stored  in  a  box  ;  in  either  case, 
the  subject-matter  of  the  sale,  namely,  potatoes,  being  but  a  per- 
sonal chattel,  and  so  not  within  the  Statute  of  Frauds.  ^  The 
latter  cases  confirm  the  doctrine  involved  in  this  decision,  namely, 
that  the  transaction  takes  its  character  of  realty  or  personalty 
from  the  principal  subject-matter  of  the  contract,  and  the  intent 
of  the  parties ;  and  that,  therefore,  a  sale  of  any  growing  produce 
of  the  earth,  reared  by  labor  and  expense,  in  actual  existence  at 
the  time  of  the  contract,  whether  it  be  in  a  state  of  maturity  or 
not,  is  not  to  be  considered  a  sale  of  an  interest  in  or  concerning 
land.  ^  (a)  In  regard  to  things  produced  annually  by  the  labor  of 
man,  the  question  is  sometimes  solved  by  reference  to  the  law  of 
emblements ;  on  the  ground,  that  whatever  will  go  to  the  execu- 
tor, the  tenant  being  dead,  cannot  be  considered  as  an  interest  in 
land.*  But  the  case  seems  also  to  be  covered  by  a  broader  prin- 
ciple of  distinction,  namely,  between  contracts  conferring  an  ex- 
clusive right  to  the  land  for  a  time,  for  the  purpose  of  making  a 
profit  of  the  groiving  surface,  and  contracts  for  things  annexed  to 
the  freehold,  in  prospect  of  their  immediate  separation  ;  from  which 
it  seems  to  result,  that  where  timber,  or  other  produce  of  the 
land,  or  any  other  thing  annexed  to  the  freehold,  is  specifically 
sold,  whether  it  is  to  be  severed  from  the  soil  by  the  vendor,  or 
to  be  taken  by  the  vendee,  under  a  special  license  to  enter  for  that 
purpose,  it  is  still,  in  the  contemplation  of  the  parties,  evidently 
and  substantially  a  sale  of  goods  only,  and  so  is  not  within  the 
statute.^ 

1  Parker  v.  Staniland,  11  East,  362  ;  Cutler  v.  Pope,  1  Sliepl.  377. 

2  Warwick  v.  Bruce,  2  M.  &  S.  205.  The  contract  was  made  on  the  12th  of  Octo- 
ber, when  the  crop  was  at  its  maturity  ;  and  it  would  seem  that  the  potatoes  were 
forthwith  to  be  digged  and  removed. 

a  Evans  v.  Roberts,  5  B.  &  C.  829  ;  Jones  v.  Flint,  10  Ad.  &  El.  753. 

*  See  observations  of  the  learned  judges,  in  Evans  v.  Roberts,  5  B.  &  C.  829.  See 
also  Rodwell  v.  Phillips,  9  M.  &  W.  501,  where  it  was  held,  that  an  agreement  for  the 
sale  of  growing  pears  was  an  agreement  for  the  sale  of  an  interest  in  land,  on  the  prin- 
ciple, that  the  fruit  would  not  pass  to  the  executor,  but  would  descend  to  the  heir. 
The  learned  Chief  Baron  distinguished  this  case  from  Smith  v.  Surman,  9  B.  &  C.  561, 
the  latter  being  the  case  of  a  sale  of  growing  timber  by  the  foot,  and  so  treated  by  the 
parties  as  if  it  had  been  actually  felled,  — a  distinction  which  confirms  the  view  sub- 
sequently taken  in  the  text. 

*  Roberts  on  Frauds,  p.  126  ;  4  Kent,  Coram.  450,  451  ;  Long  on  Sales  (by  Rand), 

(a)  Browne,  Statute  of  Frauds,  §  237  et  seq. 


CHAP.    XIV.]  STATUTE    OF    FRAUDS.  367 

§  272.  Devises  of  lands  and  tenements.  Devises  of  lands  and 
tenements  are  also  required  to  be  in  writing,  (a)  signed  by  the 
testator,  and  attested  by  credible,  that  is,  by  competent  witnesses. 
By  the  statutes  32  Hen.  Vlll.  c.  1,  and  34  &  35  Hen.  VI H.  c.  5, 

pp.  76-81,  and  cases  there  cited  ;  Chitty  on  Contracts,  p.  241  (2(1  ed.)  ;  Bank  of  Lan- 
singburg,  v.  Ciary,  1  Iiarb.  542.  On  this  subject  neither  the  Euglii^h  nor  the  American 
decisions  are  quite  uniform  ;  but  the  weight  of  authority  is  believed  to  be  as  stated  in 
the  text,  though  it  is  true  of  the  former,  as  Ld.  Abinger  remarked  in  Rodwell  v.  Pliil- 
lips,  9  M.  &  W.  505,  that  "no  general  rule  is  laid  down  in  any  one  of  them,  that  is 
not  contradicted  by  some  others."  See  also  Poulter  r.  Killingbeck,  1  B.  &  P.  398; 
Parker  v.  Staniland,  11  East,  362,  distinguishing  and  qualifying  Crosby  v.  Wadsworth, 
6  East,  611  ;  Smith  v.  Surman,  9  B.  &  C.  561  ;  Watts  v.  Friend,  10  B.  &  C.  446.  The 
distinction  taken  in  Bostwick  v.  Leach,  3  Day,  476,  484,  is  this,  that  when  there  is  a 
sale  of  property,  which  would  pass  by  a  deed  of  land,  as  such,  without  any  other  de- 
scription, if  it  can  be  separated  from  the  freehold,  and  by  the  contract  is  to  be  separ- 
ated, such  contract  is  not  within  the  statute.  See,  accordingl_v,  Whipple  v.  Foot,  2 
Johns.  418,  422  ;  Frear  v.  Hardenbergh,  5  Jolins.  276  ;  Stewart  v.  Doughty,  9  Johns. 
108,  112  ;  Austin  v.  Sawyer,  9  Cowen,  39  ;  Erskine  v.  Plummer,  7  Greenl.  447;  Bishop 
V.  Doty,  1  Vt.  38  ;  Jliller  v.  Baker,  1  Met.  27  ;  Whitmarsh  v.  Walker,  Id.  313  ; 
Claflin  V.  Carpenter,  4  Met.  580.  Mr.  Piand,  who  has  treated  this  subject,  as  well  as 
all  others  on  which  he  has  written,  with  great  learning  and  acumen,  would  reconcile 
the  Englisli  authorities,  by  distinguishing  between  those  cases  in  which  the  subject  of 
the  contract,  being  part  of  the  inheritance,  is  to  be  severed  and  delivered  by  the  ven- 
dor, as  a  chattel,  and  those  in  which  a  right  of  entry  by  the  vendee  to  cut  and  take 
it  is  bargained  for.  "  The  authorities,"  says  he,  "all  agree  in  this,  that  a  bargain  for 
trees,  grass,  crops,  or  any  such  like  thing,  when  severed  from  the  soil,  which  are  grow- 
ing, at  the  time  of  the  contract,  upon  the  soil,  but  to  be  severed  and  delivered  by  the 
vendor,  as  chattels,  separate  from  any  interest  in  the  soil,  is  a  contract  for  the  sale  of 
goods,  wares,  or  mercliandise,  within  the  meaning  of  the  seventeenth  section  of  the 
Statute  of  Frauds.  (Smith  v.  Surman,  9  B.  &  C.  561  ;  Evans  v.  Roberts,  5  B.  &  C. 
836  ;  Watts  v.  Friend,  10  B.  &  C.  445  ;  Parker  v.  Staniland,  11  East,  362  ;  Warwick 
V.  Bruce,  2  M.  &  S.  205).  So,  where  the  subject-matter  of  the  bargain  is  frudus 
industrialcs,  such  as  corn,  garden-roots,  and  such  like  tilings,  which  are  emblements, 
and  which  have  already  grown  to  maturity,  and  are  to  be  taken  immediately,  and  no 
right  of  entry  forms  absolutely  part  of  the  contract,  but  a  mere  license  is  given  to  the 
vendee  to  enter  and  take  them,  it  will  fall  within  the  operation  of  the  same  section  of 
the  statute.  (Warwick  v.  Bruce,  2  M.  &  S.  205  ;  Parker  v.  Staniland,  11  East,  362  ; 
Parke,  B.,  Carrington  v.  Roots,  2  M.  &  W.  256;  Bayley,  B.,  Shelton  v.  Livius,  2  Tyrw. 
427,  429  ;  Bayley,  J.,  Evans  v.  Roberts,  5  B.  &  C.  831  ;  Scorell  v.  Boxall,  1  Y.  &  J. 
398  ;  Mayfield  v.  Wadsley,  3  B.  &  C.  357).  But  where  the  subject-matter  of -the  con- 
tract constitutes  a  part  of  the  inheritance,  and  is  not  to  be  severed  and  delivered  by  the 
vendor  as  a  chattel,  but  a  right  of  entry  to  cut  and  take  it  is  bargained  for,  or  where  it 
is  emblements  growing,  and  a  right  in  the  soil  to  grow  and  bring  them  to  maturity, 
and  to  enter  and  take  them,  that  makes  part  of  the  bargain,  the  case  will  fall  within 
the  fourth  section  of  the  Statute  of  Frauds.  (Carrington  v.  Roots,  2  JI.  &  AV.  257  ; 
Shelton  v.  Livius,  2  Tvrw.  429  ;  Scorell  v.  Boxall,  1  Y.  &  J.  398  ;  Earl  of  Falmouth 
V.  Thomas,  1  Cr.  &  M".  89  ;  Teal  v.  Auty,  2  B.  &  Bing.  99  ;  Emmerson  v.  Heelis,  2 
Taunt.  38  ;  Waddington  v.  Bristow,  2  B.  &  P.  452  ;  Crosby  v.  Wadsworth,  6  East, 
602.)"  See  Long  on  Sales  (by  Rand),  pp.  80,  81.  But  the  later  English  and  the 
American  authorities  do  not  seem  to  recognize  such  distinction. 

(a)  When,  by  the  t  rms  of  the  statute,  Reed  v.  Woodward,  11  Phila.    (Pa.)  541, 

a  "  writing  "  is  required  to  make  a  valid  on  the  ground  that  the  statute  requiring  a 

will,  it  has  been  held  that  a  will  written  writing  meant  a  writing  with  the  instru- 

in  pencil  is  a  good  will.    Myers  v.  Vander-  ments   and   on   the    materials   commonly 

belt,  84  Pa.   St.  510;    Re  Fuguet's  Will,  used  for  such  purpo.ses.     But  a  will  may 

11  Phila.  (Pa.)  75  ;  Dickenson  v.  Dicken-  be  in  the  form  of  a  letter  if  it  sufficiently 

son,  2  Phill.  Eccl.  173  ;  Re  Dyer,  1  Hagg.  shows  a  final  testamentary  intent,  and  is 

Eccl.  219.     But  that  a  will  written  on  a  properly  executed.     Cowley  v.  Knapp,  42 

slate  is  not  such  a  "  writing"  was  held  in  N.  J.  L.  297. 


368  LAW   OF    EVIDENCE.  [PART    II. 

devises  were  merely  required  to  be  in  writing.  The  Statute  of 
Frauds,  29  Car.  11.  c.  3,  required  the  attestation  of  "  three  or  four 
credible  witnesses ; "  but  the  statute  1  Vict.  c.  26,  has  reduced  the 
number  of  witnesses  to  two.  The  provisions  of  the  Statute  of 
Frauds  on  this  subject  have  been  adopted  in  most  of  the  United 
States.  ^  It  requires  that  the  witnesses  should  attest  and  subscribe 
the  will  in  the  testator's  presence.  The  attestation  of  marks- 
men is  sufficient ;  and,  if  they  are  dead,  the  attestation  may  be 
proved  by  evidence,  that  they  lived  near  the  testator,  that  no 
others  of  the  same  name  resided  in  the  neighborhood,  and  that 
they  were  illiterate  persons. ^  One  object  of  this  provision  is,  to 
prevent  the  substitution  of  another  instrument  for  the  genuine 
will.  It  is  therefore  held,  that  to  be  present,  within  the  mean- 
ing of  the  statute,  though  the  testator  need  not  be  in  the  same 
room,  yet  he  must  be  near  enough  to  see  and  identify  the  instru- 
ment, if  he  is  so  disposed,  though  in  truth  he  does  not  attempt  to 
do  so ;  and  that  he  must  have  mental  knowledge  and  conscious- 
ness of  the  fact.^  If  he  be  in  a  state  of  insensibility  at  the  mo- 
ment of  attestation,  it  is  void.'*  (6)  Being  in  the  same  room  is 
held  prima  facie  evidence  of  an  attestation  in  his  presence,  as  an 
attestation,  not  made  in  the  same  room,  is  prima  facie  not  an  at- 
testation in  his  presence.^     It  is  not  necessary,  under  the  Statute 

1  In  New  Hampshire  alone  the  will  is  required  to  be  sealed.  Three  witnesses  are 
necessary  to  a  valid  will  in  Vermont,  New  Hampshire,  Maine,  JIassachusetts,  Rhode 
Island,  Connecticut,  New  Jersey,  Maryland,  South  Carolina,  Georgia,  Florida,  Alabama, 
and  Mississippi.  Two  Avitnesses  only  are  requisite  in  New  York,  Delaware,  Virginia, 
Ohio,  Illinois,  Indiana,  Missouri,  Tennessee,  North  Carolina,  Michif,'an,  Wisconsin, 
Arkansas,  and  Kentucky.  In  some  of  the  States,  the  provision  as  to  attestation  is  more 
special.  In  Pennsylvania,  a  devise  is  good,  if  properly  signed,  though  it  is  not  sub- 
scribed by  any  attesting  witness,  provided  it  can  be  proved  by  two  or  more  competent 
witnesses;  and  if  it  be  attested  by  witnesses,  it  may  still  be  proved  by  others.  4  Kent, 
Comm.  514.  See  post,  vol.  ii.  tit.  Wills  [7th  ed.  (1858)  §§  673-678,  and  notes].  See 
further,  as  to  the  execution  of  wills,  6  Cruise's  Dig.  tit.  38,  c.  5.  Greenleaf's  notes  [2d 
ed.  (1857)  pp.  47-80,  and  notes]  ;  1  Jarman  on  Wills,  c.  6,  by  Perkins. 

2  Doe  V.  Caperton,  9  C.  &  P.  112  ;  Jackson  v.  Van  Dusen,  5  Johns.  144 ;  Doe  v. 
Davis,  11  Jur.  182. 

3  Shires  v.  Glascock,  2  Salk.  688  (by  Evans),  and  cases  cited  in  notes  ;  4  Kent, 
Comra.  515,  516  ;  Casson  v.  Dade,  1  Bro.  Ch.  99  ;  Doe  v.  Manifold,  1  M.  &  S.  294  ; 
Tod  V.  E.  of  Winchelsea,  1  M.  &  M.  12  ;  2  C.  &  P.  488;  Hill  v.  Barge,  12  Ala.  687. 

*  Right  V.  Price,  Doug.  241. 

^  Neil  V.  Neil,  1  Leigh,  6,  10-21,  where  the  cases  on  this  subject  are  ably  reviewed 
by  Carr,  J.  If  the  two  rooms  have  a  communication  by  folding-doors,  it  is  still  to  be 
ascertained  whether,  in  fact,  the  testator  could  have  seen  the  witnesses  in  the  act  of  at- 
testation.    In  the  Goods  of  Colman,  3  Curt.  118. 

(b)   And  declarations   of  the  testator,  that  the  testator  did  not  knowingly  sign 

made  subsequent  to  the  execution  of  the  the   instrument   offered   as    a   will.      The 

instrument  offered   as   his   will,    showing  weight   of    these    declarations    and    their 

that  he  still  supposed  a  previous  will  to  power  to  prove  this  fact  are  of  course  for 

be  in  operation  and  valid,  and  proposing  the  jury.      Canada's    Appeal,    47    Conn. 

alterations  in  it,  and  in  general  treating  it  450. 
as  still  in  full  force,  are  admissible  to  show 


CHAP.    XIV.]  STATUTE   OP   FRAUDS.  ^69 

of  Frauds,  that  the  witnesses  should  attest  in  the  presence  of  each 
other,  nor  that  they  should  all  attest  at  the  same  time  ;^  nor  is  it 
requisite  that  they  should  actually  have  seen  the  testator  sign,  or 
known  what  the  paper  was,  provided  they  subscribed  the  instru- 
ment in  his  presence  and  at  his  request.'  {c)  Neither  has  it  been 
considered  necessary,  under  this  statute,  that  the  testator  should 
subscribe  the  instrument,  it  being  deemed  sufficient  that  it  be 
signed  by  him  in  any  part,  with  his  own  name  or  mark,  provided 
it  appear  to  have  been  done  animo  perficiendi,  and  to  have  been 
regarded  by  him  as  completely  executed.^  Thus,  where  the  will 
was  signed  in  the  margin  only,  or  where,  being  written  by  the 
testator  himself,  his  name  was  written  only  in  the  beginning  of 
the  will,  I,  A.  B.,  <fec.,  this  was  held  a  sufficient  signing.^  But 
where  it  appeared  that  the  testator  intended  to  sign  each  several 
sheet  of  the  will,  but  signed  only  two  of  them,  being  unable, 

6  Cook  V.  Parsons,  Prec.  in  Chan.  184  ;  Jonss  v.  Lake,  2  Atk.  177,  in  n,;  Grayson 
V.  Atkinson,  2  Ves.  455  ;  Dewey  v.  Dewey,  1  Met.  349 ;  1  Williams  on  Executors  (by 
Troubat),  p.  46,  n.  (2).  The  statute  of  1  Vict.  c.  2(5,  §  9,  has  altered  the  law  in  this 
respect,  by  enacting  that  no  will  shall  be  valid  unless  it  be  in  writing,  signed  bv  the 
testator  in  the  presence  of  two  witnesses  at  one  time.  See  Moore  v.  King,  3  Curt. 
243.     In  the  goods  of  Simmonds,  Id.  79. 

T  White  V.  Trustees  of  the  British  Museum,  6  Bing.  310 ;  Wright  v.  Wright,  7 
Bing.  457;  Dewey  v.  Dewey,  1  Met.  349  ;  Johnson  v.  Johnson,  1  C.  &  M.  140.  In 
these  cases,  the  court  certainly  seem  to  regard  the  knowdedge  of  the  witnesses,  that  the 
instrument  was  a  will,  as  a  matter  of  no  importance  ;  since  in  the  first  two  cases  only 
one  of  the  witnesses  knew  what  the  paper  was.  But  it  deserves  to  be  considered 
whether,  in  such  case,  the  attention  of  the  witness  would  probably  be  drawn  to  the 
state  of  the  testator's  mind,  in  regard  to  his  sanity  ;  for  if  not,  one  object  of  the 
statute  would  be  defeated.  See  Eutherford  v.  Rutherford,  1  Den.  33  ;  Brinkerhoof  v. 
Kemsen,  8  Paige,  488  ;  26  Wend.  325  ;  Chaffee  v.  Baptist  Miss.  Convention,  10  Paige, 
85  ;  1  Jarm.  on  Wills  (by  Perkins),  p.  114  ;  6  Cruise's  Dig.  tit.  38,  c.  5,  §  14,  n. 
(Greenleaf's  ed.)  [2d  ed.  (1857),  vol.  iii.  p.  53,  and  n.].  See  further,  as  to  proof  by  sub- 
scribing witnesses,  infra,  §§  569,  569  a,  572. 

^  That  the  party's  mark  or  initials  is  a  sufficient  signature  to  any  instrument,  being 
placed  there  wdth  intent  to  bind  himself,  in  all  cases  not  otherwise  regulated  by  statute, 
see  Baker  v.  Dening,  8  Ad.  &  El.  94  ;  Jackson  v.  Van  Dusen,  5  Johns.  144  ;  Palmer 
V.  Stephens,  1  Den.  471,  and  the  cases  cited  in  6  Cruise's  Dig.  tit.  38,  c.  5,  §§  7,  19, 
notes  (Greenleaf's  ed. )  [2d  ed.  (1857)  vol.  iii.  pp.  50-56]  ;  post,  vol.  ii.  §  677. 

3  Leinayne  v.  Stanley,  3  Lev.  1  ;  Morison  v.  Tumour,  18  Ves.  183.  But  this  also 
is  now  changed  by  the  statute  1  Vict.  c.  26,  §  9,  by  which  no  will  is  valid  unless  it  be 
signed  at  the  foot  or  end  thereof,  bj'  the  testator,  or  by  some  other  person,  in  his  pres- 
ence and  by  his  direction  ;  as  well  as  attested  by  two  witnesses,  subscribing  their  names 
in  his  presence.     See  In  the  Goods  of  Carver,  3  Curt.  29. 

(c)  The  certificate  of  attestation  is  evi-  negatives  the   fact   of   signing  or   of   ac- 

dence   that    the  witnesses  signed  in   the  knowledgment   of  the   signature    by   the 

presence   of   the   testator,    and    puts  the  deceased,  in   his  presence,  ami  there  are 

burden  of  proving  that  they  did  not  in  no  circumstances  that  raise  any  presump- 

fact  so  sign  on  the  opponents  of  the  will,  tion  of  his  being  mistaken,  the  proposed 

Tappen   v.    Davidson,    12    C.    E.   Greene,  will  cannot  be  admitted  to  probate.     Xo- 

459.     In  general  the  certificate  is  prima  ding  v.    Alliston,  2   Eng.  L.  &  £([.  594. 

facie  evidence  of  what  it  states.     Allaire  See  Shaw  v.  Neville,  33  Id.  615  ;  Bennett 

V.  Allaire,  37  N.  J.   L.  312.     Where  mie  v.  Sharpe,  Id.  618. 
of  the    subscribing    witnesses    positively 

VOL,    I.  —  24 


370  LAW   OF   EVIDENCE.  [PART  U. 

from  extreme  weakness,  to  sign  the  others,  it  was  held  incom- 
pletely ('0 

§  273.  Revocation   of  wills.      By  the  Statute   of   Frauds,   the 

revocation  of  a  will,  by  the  direct  act  of  the  testator,  must  be 
proved  by  some  subsequent  will  or  codicil,  inconsistent  with  the 
former,  or  by  some  other  writing,  declaring  the  same,  and  signed 
in  the  presence  of  three  witnesses,  or  by  burning,  tearing,  can- 
celling, or  obliterating  the  same  by  the  testator,  or  in  his  pres- 
ence, and  by  his  direction  and  consent.  ^  (a)  It  is  observable  that 
this  part  of  the  statute  only  requires  that  the  instrument  of  revo- 
cation, if  not  a  will  or  codicil,  be  signed  by  the  testator  in  pres- 
ence of  the  witnesses,  but  it  does  not,  as  in  the  execution  of  a 
will,  require  that  the  witnesses  should  sign  in  his  presence.  In 
regard  to  the  other  acts  of  revocation  here  mentioned,  they  op- 
erate by  one  common  principle ;  namely,  the  intent  of  the  testa- 
tor. Revocation  is  an  act  of  the  mind,  demonstrated  by  some 
outward  and  visible  sign  or  symbol  of  revocation  ;2  and  the  words 
of  the  statute  are  satisfied  by  any  act  of  spoliation,  reprobation, 

^°  Right  V.  Price,  Doug.  241.  The  Statute  of  Frauds,  which  has  been  generally  fol- 
lowed in  the  United  States,  admitted  exceptions  in  favor  of  nuncupative  or  verbal  wills, 
made  under  certain  circum.stances  therein  mentioned,  as  well  as  in  favor  of  parol  testa- 
mentary dispositions  of  personalty,  by  soldiers  in  actual  service,  and  by  mariners  at 
sea  ;  any  further  notice  of  which  would  be  foreign  from  the  plan  of  this  treatise.  The 
latter  exceptions  still  exist  in  England ;  but  nuncupative  wills  seem  to  be  abolished 
there,  by  the  general  terms  of  the  statute  of  1  Vict.  c.  26,  §  9,  before  cited.  The  com- 
mon law,  which  allows  a  bequest  of  personal  estate  by  parol,  without  writing,  has  been 
altered  by  statute  in  most,  if  not  all,  of  the  United  States  ;  the  course  of  legislation 
having  tended  strongly  to  the  abolition  of  all  distinctions  between  the  requisites  for  the 
testamentary  disposition  of  real  and  of  personal  property.  See  4  Kent,  Comm.  516- 
520;  Lovela.ss  on  Wills,  pp.  315-319;  1  Williams  on  Executors  (by  Troubat),  pp. 
46-48,  notes  ;  1  Jarnian  on  Wills  (by  Perkins),  p.  [90]  132,  n.  ;  6  Cruise's  Dig.  (by 
Greenleaf),  tit.  38,  c.  5,  §  14,  n.  [2d  ed.  (1857)  vol.  iii.  p.  53,  and  note.  See  also  post, 
vol.  ii.  §  674  c<  seq.]. 

1  Stat.  29  Car.  II.  c.  3,  §  6.  The  statute  of  1  Vict.  c.  26,  §  20,  mentions  "burn- 
ing, tearing,  or  otherwise  destroying  the  same,"  &c.  And  see  further,  as  to  the  evi- 
dence of  revocation,  6  Cruise's  "Dig.  (by  Greenleaf)  tit.  38,  c.  6,  §§  18,  19,  29,  notes  [2d 
ed.  (1857)  vol.  iii.  p.  81  et  acq. ;  2  Greenl.  Evid.  (7th  ed.)  §§  680-687]  ;  1  Jarman  on 
Wills  (by  Perkins),  c.  7,  §  2,  notes. 

2  Bibb  r.  Thomas,  2  W.  Bl.  1043. 

(d)  It  is  not  necessary  that  the  differ-  originally  stood  is  the  valid  will.     Matter 

ent  parts  of  a  will  should  be  connected,  of  Prescott,    4   Redf.    (N.  Y.)  178.     But 

It   is  sufficient  if  they  are  connected  by  where  no  statutory  provisions    regarding 

their   internal  sense,   or   by   a   coherence  partial  revocation  by  cancellation  exist,  a 

and  adaptation   of   parts.      WikofTs   Ap-  cancellation  is  ttnal,  and  the  will  stands 

peal,   15    Pa.   St.    281  ;    Jones  v.   Haber-  without  the   clause   cancelled.     Estate  of 

sham,  63  Ga.  146.  Chinmark,    Myrick's    Prob.    (Cal.),    128. 

(a)  Where  there  is  a  statutory  form  of  Generally  when  a  will  has  been  revoked, 

revocation  by  cancellation,  and  alterations  its    republication    cannot    be    by    parol, 

are  made  in  a  will,  but  the  will  is  not  exe-  There  must  be   the   same  evidence  as  of 

cuted  again  with  the  requisite  formalities,  publication.     Gary  v.   Baughn,  36  Iowa, 

the  altered  bequests  are  invalid  for  want  540  ;   Smith's  Will,   9   Phila.   (Pa.)  362. 

of  sufficient  execution,  and  the  will  as  it  See  post,  vol.  ii.  §§  680-687. 


CHAP.    XIV.]  STATUTE   OP   FRAUDS.  871 

or  destruction,  deliberately  done  upon  the  instrument,  animo 
revocandi.^  The  declarations  of  the  testator,  accompanying  the 
act,  are  of  course  admissible  in  evidence  as  explanatory  of  his 
intention."*  Accordingly,  where  the  testator  rumpled  up  his  will 
and  threw  it  into  the  fire  with  intent  to  destroy  it,  though  it  was 
saved  entire  without  his  knowledge,  this  was  held  to  be  a  revoca- 
tion.^ So,  where  he  tore  off  a  superfluous  seal.«  But  where,  be- 
ing angry  with  the  devisee,  he  began  to  tear  his  will,  but  being 
afterwards  pacified,  he  fitted  the  pieces  carefully  together,  saying 
he  was  glad  it  was  no  worse,  this  was  held  to  be  no  revocation.' 

§  274.  Apprenticeship.  Documentary  evidence  is  also  required 
in  proof  of  the  contract  of  apprenticeship  ;  there  being  no  legal 
binding,  to  give  the  master  coercive  power  over  the  person  of  the 
apprentice,  unless  it  be  by  indentures,  duly  executed  in  the  forms 
prescribed  by  the  various  statutes  on  this  subject.  The  general 
features  of  the  English  statutes  of  apprenticeship,  so  far  as  the 
mode  of  binding  is  concerned,  will  be  found  in  those  of  most  of 
the  United  States.  There  are  various  other  cases,  in  which  a 
deed,  or  other  documentary  evidence,  is  required  by  statutes,  a 
particular  enumeration  of  which  would  be  foreign  from  the  plan 
of  this  treatise.  1 

8  Burtenshaw  v.  Gilbert,  Cowp.  49,  52 ;  Burns  v.  Burns,  4  S.  &  R.  567  ;  6  Cruise's 
Dig.  (by  GreenleaO  tit.  38,  c.  6,  §  54  ;  Johnson  v.  Brailsford,  2  Nott  &  McC.  272 ; 
AVinsor  v.  Pratt,  2  B.  &  B.  650 ;  Lovelass  ou  Wills,  pp.  346-350  ;  Card  v.  Grinman, 
5  Conn.  168  ;  4  Kent,  Comm.  531,  532. 

*  Dan  V.  Brown,  4  Cowen,  490. 

6  Bibb  V.  Thomas,  2  W.  Bl.  1043. 

^  Avery  v.  Pixley,  4  Mass.  462. 

T  Doe  V.  Perkes,  3  B.  &  Aid.  489. 

^  In  several  of  the  United  States,  two  subscribing  witnesses  are  necessary  to  the 
execution  of  a  deed  of  conveyance  of  lands  to  entitle  it  to  registi'ation  ;  in  others,  but 
one.  In  some  others,  the  testimony  of  two  witnesses  is  requisite,  when  the  deed  is  to 
be  proved  by  witnesses.  See  supra,  §  260,  n.  ;  4  (IJruise's  Dig.  tit.  32,  c.  2,  §  77,  n. 
(Greenleaf's  ed.)  [2d  ed.  (1856)  vol.  ii.  p.  341]  ;  4  Kent,  Comm.  457.  See  also  post, 
vol.  ii.  tit.  Wills,  passim,  where  the  subject  of  Wills  is  more  amply  treated. 


372  LAW   OP   EVIDENCE.  [PART   11. 


CHAPTER  XV. 

OF   THE    ADMISSIBILITY   OP   PAROL    OR   VERBAL    EVIDENCE   TO   AFPECT 
THAT   WHICH    IS   WRITTEN.* 

§  275.  "Written  evidence.  By  written  evidence,  in  this  place,  is 
meant  not  everything  which  is  in  writing,  but  that  only  which  is 
of  a  documentary  and  more  solemn  nature,  containing  the  terms 
of  a  contract  between  the  parties,  and  designed  to  be  the  reposi- 
tory and  evidence  of  their  final  intentions.  "Fiunt  enim  de  his 
[contractibus]  scripturae,  ut,  quod  actum  est,  per  eas  facilius  pro- 
bari  poterit."  ^  When  parties  have  deliberately  put  their  engage- 
ments into  writing,  in  such  terms  as  import  a  legal  obligation, 
without  any  uncertainty  as  to  the  object  or  extent  of  such  en- 
gagement, it  is  conclusively  presumed  that  the  whole  engagement 
of  the  parties,  and  the  extent  and  manner  of  their  undertaking, 
was  reduced  to  writing ;  and  all  oral  testimony  of  a  previous  col- 
loquium between  the  parties,  or  of  conversation  or  declarations 
at  the  time  when  it  was  completed,  or  afterwards,  as  it  would 
tend  in  many  instances  to  substitute  a  new  and  different  contract 
for  the  one  which  was  really  agreed  upon,  to  the  prejudice,  pos- 
sibly, of  one  of  the  parties,  is  rejected. ^  In  other  words,  as  the 
rule  is  now  more  briefly  expressed,  "  parol  contemporaneous  evi- 
dence is  inadmissilile  to  contradict  or  vary  the  terms  of  a  valid 
written  instrument."  ^  {a) 

*  The  subject  of  this  chapter  is  ably  discussed  in  Spence  on  the  Equitable  Jurisdic- 
tion of  Chancer}',  vol.  i.  pp.  f>bZ-b15,  and  in  1  Smith's  Lead.  Cas.  pp.  410-418  [305- 
310],  with  Hare  &  Wallace's  notes. 

1  Dig.  lib.  20,  tit.  1,  1.  4  ;   Id.  lib.  22,  tit.  4,  1.  4. 

2  Stackpole  v.  Arnold,  11  Mass.  30,  31,  per  Parker,  J.  ;  Preston  v.  Merceau,  2  W. 
Bl.  1249  ;  Coker  v.  Guy,  2  B.  &  P.  565,  569  ;  Bo^'ert  v.  Caunian,  Anthon,  97  ;  Bayard 
V.  Malcolm,  1  Johns.  467,  per  Kent,  C.  J.  ;  Pdch  v.  Jackson,  4  Bro.  Ch.  519,  per 
Ld.  Tliurlow  ;  Sinclair  v.  Stevenson,  1  C.  &  P.  582,  per  Best,  C.  J.  ;  McLellan  v. 
Cumberland  Bank,  11  Shepl.  566.  The  general  rule  of  the  Scotch  law  is  to  the  same 
effect,  namely,  that  "writing  cannot  be  cut  down  or  taken  away,  by  the  testimony  of 
witnesses."  Tait  on  Evid.  pp.  326,  327.  And  this,  in  other  language,  is  the  rule  of 
the  Roman  civil  law,  —  Contra  scriptum  testimonium,  non  scriptum  testimonium  non 
fertur.     Cod.  lib.  4,  tit.  20,  1.  1. 

3  Phil.  &  Am.  on  Evid.  p.  753  ;  2  Phil.  Evid.  350  ;  2  Stark.  Evid.  544,  548 ; 
Adams  v.  Wordley,  1  M.  &  W.  379,  380,  per  Parke,  B.  ;  Boonnan  v.  Johnston,  12 
Wend.  573. 

(a)  Bast  V.  Bank,  101  U.  S.  93  ;  Slo-  126  Id.  393  ;  Fay  v.  Gray,  124  Id.  500  ; 
cum  V.  Swift,  2  Low.  212;  Muhlig  v.  Schwass  u.  Hershey,  125  111.  653  ;  Sanders 
Fiske,  131  Mass.  110  ;  Keller  i;.  Webb,     v.  Cooper,  115  N.  Y.  279  ;  Van  Vechten 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  373 

§  276.  Origin  of  the  rule.  This  rule  "  was  introduced  in  early 
times,  when  the  most  frequent  mode  of  ascertaining-  a  party  to 
a  contract  was  by  his  seal  affixed  to  the  instrument;  and  it 
has  been  continued  in  force,  since  the  vast  multiplication  of 
written  contracts,  in  consequence  of  the  increased  business  and 
commerce  of  the  world.  It  is  not  because  a  seal  is  put  to  the 
contract,  that  it  shall  not  be  explained  away,  varied,  or  rendered 
ineffectual;  but  because  the  contract  itself  is  plainly  and  intelli- 
gibly stated,  in  the  language  of  the  parties,  and  is  the  best  pos- 
sible evidence  of  the  intent  and  meaning  of  those  who  are  bound 
by  the  contract,  and  of  those  who  are  to  receive  the  benefit  of  it. " 
"The  rule  of  excluding  oral  testimony  has  heretofore  been  ap- 
plied generally,  if  not  universally,  to  simple  contracts  in  writing, 
to  the  same  extent  and  with  the  same  exceptions  as  to  specialties 
or  contracts  under  seal. "  ^ 

§  277.  Applicable  to  language  only.  It  is  to  be  observed,  that 
the  rule  is  directed  only  against  the  admission  of  any  other  evi- 
dence of  the  language  employed  by  the  parties  in  making  the  con- 
tract, than  that  which  is  furnished  by  the  writing  itself.  The 
writing,  it  is  true,  may  be  read  by  the  light  of  surrounding  cir- 
cumstances, in  order  more  perfectly  to  understand  the  intent  and 
meaning  of  the  parties ;  but,  as  they  have  constituted  the  writing 
to  be  the  only  outward  and  visible  expression  of  their  meaning, 

1  Per  Parker,  J.,  in  Stackpole  v.  Arnold,  11  Mass.  31.  See  also  WooUam  v.  Heam, 
7  Ves.  218,  per  Sir  William  Grant  ;  Hunt  v.  Adams,  7  Mass.  522,  per  Sewall,  J. 

V.  Smith,  59  Iowa,   173  ;  Seckler  v.  Fox,  67  Pa.  St.  459  ;  Farrow  v.  Hayes,  51  Md. 

51  Mich.  92  ;   Best  v.  Sinz,   73  Wis.  213  ;  49S  ;    Daggett   v.    Johnson,    49    Vt.   345. 

Hostetter   v.   Auman,    119    Ind.    7;    The  The  rule  applies  also  to  all  records  of  judg- 

Gazelle,  128   U.  S.   484  ;   Coots  v.  Farns-  ments   or   official   proceedings.     Stephen, 

worth,  61  Mich.  502;  Gordon  v.  Niemann,  Dig.  Evid.  art.  90  ;  Mayhew  v.  Gay  Head, 

118  N.  Y.  152  ;  Smith  v.   Burton,  59  Vt.  13  Allen  (Mass.),  129  ;  Hunnerann  v.  Fire 

408;  Diven  v.  Johnson,  117  Ind.  512  ;  La-  District,  37  Vt.  46  ;   Eddy  v.  Wilson,   43 

fayette.  County  Monument  Corporation  v.  Id.  362  ;   Quinn  v.  Com.,  20  Gratt.  (Va. ) 

Magoon,  73  Wis.  627;  Avery  v.  Miller,  86  138  ;    Brooks  v.    Claiborne  Co.,    8   Baxt. 

Ala.  495  ;  Carlton  v.  Vineland  Wine  Co.,  (Tenn.)  43  ;  Pioberts  v.  Johnson,  48  Tex. 

33   N.  J.  Eq.  466  ;    Fengar  v.   Brown,  57  133;  Wilson  v.  Wilson,  45  Cal.  399.   Thus 

Conn.  60  ;  Hennershotz  v.  Gallagher,   124  the  entry  in  a  court  of  record  into  which  a 

Pa.  St.  9  ;  Ames  v.  Brooks,  143  Mass.  347;  recognizance  is  returnable,  that  the  prin- 

Hunt  V.  Gray,  76  Iowa,  270  ;   De  Witt  v.  cipal  made  default,  cannot  be  contradicted 

Berry,  134  U.  S.  315  ;  Corse  v.  Peck,  102  by  parol  evidence,  on  scire  facias  against 

N.  Y.  517  ;  Fordice  i'.  Serihner,  108  Ind.  the    bail.       Com.    v.    Slocum,     14    Gray 

88  ;  Frost  v.  Brighani,  139  Mass.  43  ;  Ex-  (Mass.),  395.     Nor  can  an  official  entry  on 

press  Pub.  Co.   v.  AMine  Press,    126  Pa.  a  record,  void  for  uncertainty,  be  exjilained 

St.  347;  Paddock  V.  Bartlett,  68  Iowa,  16  ;  by  extrinsic  evidence.     Porter  v.    Byrne, 

Miller  v.  Butterfield,  79  Cal.  62  ;    Patter-  10  Ind.  146.     Cf.  McMicken  v.  Com.,  58 

son  V.  Wilson,    101    N.    C.   564  ;   Munde  Pa.  St.  213  ;  Wilcox  v.  Emerson,  10  R.  I. 

V.    Lambie,     122    Id.     336  ;    Stevens    v.  270  ;  Gregorv  v.  Sherman,  44  Conn.  466- 

Haskell,  70  Me.  202  ;   Van  Svckel  w.  Dal-  473,   note  ;   Kendig's  Api)eal,  82  Pa.  St. 

rymple,   32  N.  J.  Eq.   233  ;  Etheridge  v.  68  ;   McDermott  v.   Hoffman,  70   Id.  31. 

Palin,  72  N.  C.  213 ;   Monroe  v.  Berens,  and  post,  §  276. 


374  LAW   OF    EVIDENCE.  [PART   II. 

no  other  words  are  to  be  added  to  it,  or  substituted  in  its  stead. 
The  duty  of  the  court  in  such  cases  is  to  ascertain,  not  what  the 
parties  may  have  secretly  intended,  as  contradistinguished  from 
what  their  words  express,  but  what  is  the  meaning  of  words  they 
have  used.  ^  It  is  merely  a  duty  of  interpretation ;  that  is,  to  find 
out  the  true  sense  of  the  written  words,  as  the  parties  used  them ; 
and  of  construction,  that  is,  when  the  true  sense  is  ascertained, 
to  subject  the  instrument,  in  its  operation,  to  the  established  rules 
of  law. 2  And  where  the  language  of  an  instrument  has  a  settled 
legal  construction,  parol  evidence  is  not  admissible  to  contradict 
that  construction.  Thus,  where  no  time  is  expressly  limited  for 
the  payment  of  the  money  mentioned  in  a  special  contract  in  writ- 
ing, the  legal  construction  is,  that  it  is  payable  presently;  and 
parol  evidence  of  a  contemporaneous  verbal  agreement,  for  the 
payment  at  a  future  day,  is  not  admissible.^ 

§  278.  Words  generally  taken  in  their  ordinary  sense.  The  terms 
of  every  written  instrument  are  to  be  understood  in  their  plain, 
ordinary,  and  popular  sense,  unless  they  have  generally,  in  re- 
spect to  the  subject-matter,  as  by  the  known  usage  of  trade,  or 
the  like,  acquired  a  peculiar  sense,  distinct  from  the  popular 
sense  of  the  same  words ;  or  unless  the  context  evidently  points 
out  that,  in  the  particular  instance,  and  in  order  to  effectuate  the 
immediate  intention  of  the  parties,  it  should  be  understood  in 
some  other  and  peculiar  sense,  (a)  But  where  the  instrument 
consists  partly  of  a  printed  formula,  and  partly  of  written  words, 

1  Doe  V.  Gwillim,  5  B.  &  Ad.  122,  129,  per  Parke,  J.  ;  Doe  v.  Martin,  4  B.  &  Ad. 
771,  786,  per  Parke,  J.  ;  Beaumont  v.  Field,  2  Chitty,  275,  per  Abbott,  C.  J.  See 
infra,  §  295. 

2  The  subject  of  Interpretation  and  Constraction  is  ably  treated  by  Professor  Lieber, 
in  his  Legal  and  Political  Hermeneutics,  c.  1,  §  8,  and  c.  3,  §§  2,  3.  And  see  Doct. 
&  St.  39,  c.  24.  The  interpretation,  as  well  as  the  construction  of  a  written  instru- 
ment, is  for  the  court,  and  not  for  the  jury,  {a)  But  other  questions  of  intent,  in  fact, 
are  for  the  jury.  The  court,  however,  where  the  meaning  is  doubtful,  will,  in  proper 
cases,  receive  evidence  in  aid  of  its  judgment.  Story  on  Agency,  §  63.  n.  (1);  Paley 
on  Ai^ency,  by  Lloyd,  p.  198,  n.  ;  supra,.  §  49  ;  Hutchison  v.  Bowker,  5  M.  &  W.  535. 
And  where  it  is  doubtful  whether  a  certain  word  was  used  in  a  sense  different  from  its 
ordinary  acceptation,  it  will  refer  the  question  to  the  jury.  Simpson  v.  Margitson,  35 
Leg.  Obs.  172. 

3  Warren  v.  Wheeler,  8  Met.  97.  Nor  is  parol  evidence  admissible  to  j)rove  now  a 
written  contract  was  understood  by  either  of  the  parties,  in  an  action  upon  it  at  law, 
in  the  absence  of  any  fraud.  Bigelow  v.  Collamore,  5  Cush.  226  ;  Harper  v.  Gilbert, 
Id.  417.  {b) 

(a)  Globe  Works  v.  Wright,  106  Mass.  veyed,  and  it  was  stipulated  in  the  agree- 

214.     Cf.  West  V.  Smith,  101  U.  S.  263.  ment  that  the  patent  was  "in  full  force 

(h)  Taft  V.  Dickinson,  6  Allen  (Mass.),  and  effect,"  the  court  held  that  evidence 

553 ;   Davis  Sewing  Machine  Co.  v.  Stone,  was    not    admissible    to    show    that    the 

131  Mass.  384.  parties  meant  only  to  stipulate    that  the 

(rt)  Holt  V.  Collyer,  L.  R.  16  Ch.  Div.  patent  had  not  lapsed  for  non-payment  of 

718.     Thus  where  parties  entered  into  an  fees.     Chemical  Fllectric  Light,  &c.,  Co.  v. 

agreement  by  which  a  patent  was  con-  Howard,  150  Mass.  496. 


CHAP.    XV.]  ADMISSIBILITY   OP   PAROL   EVIDENCE.  375 

if  there  is  any  reasonable  doubt  of  the  meaning  of  the  whole,  the 
written  words  are  entitled  to  have  greater  effect  in  the  interpreta- 
tion tlian  those  which  are  printed;  they  being  the  immediate 
language  and  terms  selected  by  the  parties  themselves  for  the 
expression  of  their  meaning,  while  the  printed  formula  is 
more  general  in  its  nature,  applying  equally  to  their  case  and  to 
that  of  all  other  contracting  parties,  on  similar  subjects  and 
occasions.  ^(6) 

§  279.  Rule  applies  only  to  parties  to  controversy.  The  rule 
under  consideration  is  applied  only  {in  suits)  between  the  parties 
to  the  instrument ;  as  they  alone  are  to  blame  if  the  writing  con- 
tains what  was  not  intended,  or  omits  that  which  it  should  have 
contained.  It  cannot  affect  third  persons,  who,  if  it  were  other- 
wise, might  be  prejudiced  by  things  recited  in  the  writings,  con- 
trary to  tlie  truth,  through  the  ignorance,  carelessness,  or  fraud 
of  the  parties ;  and  who,  therefore,  ought  not  to  be  precluded  from 
proving  the  truth,  however  contradictory  to  the  written  state- 
ments of  otliers.2(a) 

§  280.  Testimony  of  experts  to  aid.  It  is  almost  superfluous  to 
add,  that  the  rule  does  not  exclude  the  testimony  of  experts,  to 
aid  the  court  in  reading  the  instrument.  If  the  characters  are 
difficult  to  be  deciphered,  or  the  language,  whether  technical,  or 
local  and  provincial,  or  altogether  foreign,  is  not  understood  by 
the  court,  the  evidence  of  persons  skilled  in  deciphering  writings, 
or  who  understood  the  language  in  which  the  instrument  is  writ- 

^  Per  Ld.  Ellenborough,  in  Robertson  v.  French,  4  East,  135,  136.  See  Wigram 
on  the  Interpretation  of  Wills,  pp.  15,  16,  and  cases  there  cited.  See  also  Boorman 
V.  Johnston,  12  Wend.  573 ;  Taylor  v.  Briggs,  2  C.  &  P.  525  ;  Alsager  v.  St.  Kathe- 
rine's  Dock  Co.,  14  M.  &  W.  799,  per  Parke,  B. 

2  Supra,  §§  23,  171,  204  ;  1  Poth.  Obi.  by  Evans,  part  4,  c.  2,  art.  3,  n.  [766]  ;  2 
Stark.  Evid.  575  ;  Krider  v.  Lafferty,  1  Whart  303,  314,  per  Kennedy,  J.  ;  Reynolds 
V.  Magness,  2  Iredell,  26. 

{b)  So,   when   a  contract  refers   to   a  Talbot  v.  Wilkins,  31  Ark.  411  ;  Hnssman 

plan  to  explain  the  contract,  and  the  plan  v.  Wilke,  50   Cal.   250  ;  McMaster  v.   In- 

is   inconsistent  with   some   clause  in  the  snrance  Co.  of  N.  America,  55  N.  Y.  222  ; 

contract,  the  contract  will  govern.     Smith  Brown  v.   Thnrber,  77  Id.  613  ;  s.  c.   58 

V.  Flanders,  129  Mass.  322.     When  a  con-  How.  Pr.  95  ;  Bell  v.  Woodman,    60  Me. 

tract  refers  to  a  verbal  contract  as  incor-  465  ;    Tobey    i;.    Leonard,     2    Cliff.    40  ; 

])orating  it,  evidence  may  always  be  given  Edgerly  u.   Emerson,  23  N.  H.  555.     See 

of  the  statements  of  the  verbal  contract.  Langdon  v.  Langdon,  4  Gray  (Mass.),  186; 

Thus,  where  a  letter,    which  formed  the  Arthurs.  Roberts,  60  Barb.  (N.  Y.)   580. 

written  contract  between  the  parties,  be-  Thus,  where  one  to  whom  a  promissory 

gan  "confirming  our  verbal  contract,"  it  note  was  pledged  as  securit)',  sued  one  of 

was  held  that  evidence  might  be  given  of  the  parties  for  the  conversion  of  the  note, 

the  terms  of  the  verbal  contract,  although  it  was  held  that  the  statements  on  the  note 

they  were  contradictory  to  those  contained  did  not  bind  the  plaintiff,  he  not  being  a 

in  the  letter.     Holt  v.   Pie,  120  Pa.  St.  party   to  the  contract.     Kellogg  v.  Tomp- 

439.  son,  142  Mass.  76. 

(a)  Cunninghams.  Milner,  56  Ala.  522; 


376  LAW   OP    EVIDENCE.  [PART   II. 

ten,  or  the  technical  or  local  meaning  of  the  terms  employed,  is 
admissible  to  declare  what  are  the  characters,  or  to  translate  the 
instrument,  or  to  testify  to  the  proper  meaning  of  the  particular 
words. ^  (a)  Thus  the  words  "inhabitant, "  ^  " level, "^  "thou- 
sands,"* "fur,"^  "freight,"^  and  many  others,  have  been  inter- 
preted, and  their  peculiar  meaning,  when  used  in  connection 
with  the  subject-matter  of  the  transaction,  has  been  fixed,  by 
parol  evidence  of  the  sense  in  which  they  are  usually  received, 
when  employed  in  cases  similar  to  the  case  at  bar.  And  so  of 
the  meaning  of  the  phrase,  "  duly  honored, " '  when  applied  to  a 
bill  of  exchange;  and  of  the  expression  "in  the  month  of  Octo- 
ber,"^ when  applied  to  the  time  when  a  vessel  was  to  sail;  and 
many  others  of  the  like  kind.  (6)     If  the  question  arises  from  the 

1  Wigrara  on  the  Interpretation  of  Wills,  p.  48  ;  2  Stark.  Evid.  565,  566  :  Birch 
V.  Depeyster,  1  Stark.  210,  and  cases  there  cited  ;  infra,  §§  292,  440,  n.  ;  Sheldon  v. 
Benham,  4  Hill  (N.  Y.),  129. 

^  The  King  v.  Mashiter,  6  Ad.  &  El.  153. 

3  Clayton  v.  Gregson,  5  Ad.  &  El.  302  ;  s.  c.  4  N.  &  M.  602. 

*  Smith  V.  Wilson,  3  B.  &  Ad.  728.  The  doctrine  of  the  text  was  more  fully 
expounded  by  Shaw,  C.  J.,  in  Brown  v.  Brown,  8  Met.  576,  577,  as  follows:  "  The 
meaning  of  words,  and  the  grammatical  construction  of  the  English  language,  so  far  as 
they  are  established  by  the  rules  and  usages  of  the  language,  are,  prima  facie,  matter 
of  law,  to  be  construed  and  passed  upon  by  the  court.  But  language  may  be  ambigu- 
ous, and  used  in  different  senses  ;  or  general  words,  in  particular  trades  and  branches 
of  business,  —  as  among  merchants,  for  instance,  —  may  be  used  in  a  new,  peculiar,  or 
technical  sense;  and,  therefore,  in  a  few  instances,  evidence  may  be  received,  from 
those  who  are  conversant  with  such  branches  of  business,  and  such  technical  or  peculiar 
use  of  language,  to  explain  and  illustrate  it.  One  of  the  strongest  of  these,  perhaps, 
among  the  recent  cases,  is  the  case  of  Smith  v.  W^ilson,  3  B.  &  Ad.  728.  where  it  was 
held,  that,  in  an  action  on  a  lease  of  an  estate  including  a  rabbit-warren,  evidence  of 
iisage  was  admissible  to  show  that  the  words,  '  thousand  of  rabbits,'  were  understood 
to  mean  one  hiuidred  dozen,  that  is,  twelve  hundred.  But  the  decision  was  placed 
on  the  ground  that  the  words  'hundred,'  'thousand,'  and  the  like,  were  not  under- 
stood, when  a])plied  to  particular  subjects,  to  mean  that  number  of  units;  that  the 
definition  was  not  fixed  by  law,  and  therefore  was  open  to  such  proof  of  usage.  Though 
it  is  exceedingly  difficult  to  draw  the  precise  line  of  distinction,  yet  it  is  manifest  that 
such  evidence  can  be  admitted  only  in  a  few  cases  like  the  above.  Were  it  otherwise, 
written  instruments,  instead  of  importing  certainty  and  verity,  as  being  the  sole  re- 
pository of  the  will,  intent,  and  purposes  of  the  parties,  to  be  construed  by  the  rules  of 
law  might  be  made  to  speak  a  very  diflferent  language  by  the  aid  of  parol  evidence." 

5  Astor  V.  Union  Ins.  Co.  7  Cowen,  202. 

^  Peisch  V.  Dickson,  1  Mason,  11,  12.  '  Lucas  v.  Groning,  7  Taunt.  164. 

^  Chaurand  v.  Angerstein,  Peake's  Cas.  43.  See  also  Peisch  v.  Dickson,  1  Mason, 
12:  Doe  v.  Benson,  4  B.  &  Aid.  588  ;  United  States  v.  Breed,  1  Sumn.  159  ;  Taylor 
.V.  Briggs,  2C.  &  P.  525. 

(a)  Com.  V.  Morgan,  107  Mass.  200.  lb.  427)  ;  "spitting  of  blood  "[in  an  in- 

(b)  And  to  explain  such  an  expression  surance  policy],  (Singleton  v.  St.  Louis 
as  "  regular  turns  of  loading,"  iu  an  action  Mut.  Ins.  Co..  66  Mo.  63);  "  crop  of  flax  " 
on  a  contract  for  loading  coals  at  Newcas-  (Goodrich  v.  Stevens,  5  Lans.  (N.  Y.)230); 
tie  (Leideman  v.  Schnltz,  24  Eng.  Law  &  "horn  chains"  (Swett  v.  Shumway,  102 
Eq.  305;  14  C.  B.  38);  "  payable  in  trade"  Mass.  365);  "  barrel  "  (Miller  v.  Stevens, 
(Dudley  v.  Vose,  114  Mass.  34)  :  "dol-  100  Id.  518);  "all  faults"  (Whitney  v. 
lars,"  "current  funds  "  (Thorington  v.  Boardman,  118  Id.  242^;  "best  oil" 
Smith,  8  Wall.  (IJ.  S.)  ],  12  ;  Brvan  v.  (Lucas  o.  Bristow,  E.  B.  &  E.  907)  :  "  £ 
Harrison,  76  N,  C.  360  ;  Davis  v.  Glenn,  o.  b."  Silberraan  v.  Clark,  96  N.  Y.  524. 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  377 

obscurity  of  the  writing  itself,  it  is  determined  by  the  court 
alone  ;^  but  questions  of  custom,  usage,  and  actual  intention 
and  meaning  derived  therefrom,  are  for  the  jury.^*^  But  where 
the  words  have  a  known  legal  meaning,  such,  for  example,  as 
measures  of  quantity  fixed  by  statute,  parol  evidence, that  the  par- 
ties intended  to  use  them  in  a  sense  different  from  the  legal 
meaning,  though  it  were  still  the  customary  and  popular  sense, 
is  not  admissible.  ^^  (c) 

§  281.  Illustrations.  The  reason  and  policy  of  the  rule  will  be 
further  seen,  by  adverting  to  some  of  the  cases  in  which  parol 
evidence  has  been  rejected.  Thus,  where  a  policy  of  insurance 
was  effected  on  goods,  "  in  ship  or  ships  from  Surinam  to  Lon- 
don," parol  evidence  was  held  inadmissible  to  show  that  a  par- 
ticular ship  in  the  fleet,  which  was  lost,  was  verbally  excepted  at 
the  time  of  the  contract.^  So,  where  a  policy  described  the  two 
termiyii  of  the  voyage,  parol  evidence  was  held  inadmissible  to 
prove  that  the  risk  was  not  to  commence  until  the  vessel  reached 
an  intermediate  place.  2  (a)     So,  where  the  instrument  purported 

9  Remnn  v.  Hayward,  2  Ad.  &  El.  666  ;  Crofts  v.  Marshall,  7  C.  &  P.  597  ;  infra, 
§  300.     But  see  Sheldon  v.  Benham,  4  Hill  (N.  Y.),  129. 

10  Lucas  V.  Groiiiiiff,  7  Taunt.  164,  167,  168  ;  Birch  v.  Depeyster,  1  Stark.  210; 
Paley  on  Agency  (l>y  Lloyd),  p.   198  ;  Hutchison  v.  Bovvker,  5  M.  &  W.  535. 

11  Smith  V.  Wilson,  3  B.  &  Ad.  728,  per  Ld.  Tenterden ;  Hockin  v.  Cooke,  4  T.  R. 
314  ;  Attorney-General  v.  Cast  Plate  Glass  Co.,  1  Anst.  39  ;  Sleght  v.  Rhinelander,  1 
Johns.  192  ;  Frith  v.  Barker,  2  Johns.  335  ;  Stoever  v.  Whitman,  6  Binn.  417;  Henry 
V.  Risk,  1  Dall.  265  ;  Doe  i;.  Lea,  11  East,  312  ;  Caine  v.  Horsefall,  2  C.  &  K.  349. 
Conversations  between  the  parties  at  the  time  of  making  a  contract  are  competent  evi- 
dence, as  a  part  of  the  res  gestae,  to  show  the  sense  which  they  attached  to  a  particular 
term  used  in  the  contract.  Gray  v.  Harper,  1  Story,  574.  Where  a  sold  note  run 
thus  :  "  18  pockets  of  hops,  at  100s.,"  parol  evidence  was  held  admissible  to  show  that 
100s.  meant  the  ])rice  per  hundredweight.     Spicer  v.  Cooper,  1  G.  &  D.  52. 

1  Weston  V.  Ernes,  1  Taunt.  115. 

2  Kaines  v.  Knightly,  Skin.  54  ;  Leslie  v.  De  la  Torre,  cited  12  East,  583. 

(c)  Insurance  Company  v.  Throop,  22  should  remain  in  force,  was  made  known 

Mich.  146;  Willmering  y.  McGaughey,  30  to  the  defendant  company,  and  assented 

Iowa,  205  ;  Artliur  v.   Roberts,   60  Barb,  to  by  them,    prior  to  the  execution   and 

(N.  Y. )  580.     Parol  evidence  is  inadmis-  delivery  of  the  policy.     Barrett  v.  Union 

sible  to  show  that  the  parties  to  a  deed  Mut.  Fire  Ins.  Co.,  7  Cu.sh.   (Mass.)  175, 

understood  "  half "  of  a  rectangular  lot  to  180;    Lee  v.    Howard,    &c.    Co.,   3    Gray 

mean  a  less  quantity.     Butler  v.  Gale,  27  (Mass.),  583,    592.      But  these  cases  are 

Vt.  739.  counter  to  the  current  of  authorities,  and 

(a)  So  where  a  policy  was  issued  by  would  hardly  be  followed  except  in  the 
a  mutual  insurance  company,  and  made  in  same  State.  Union  Mut.  Ins.  Co.  v.  Wil- 
terms  subject  to  the  conditions  of  its  by-  kinson,  13  Wall.  (U.  S.)  222.  So  where 
laws,  and  the  by-laws  provided  that  any  a  bill  of  lading  expressly  stipulated  that 
policy  issued  upon  property  previously  certain  goods  named  therein  may  be  oar- 
insured  should  be  void  unless  the  previ-  ried  on  deck,  parol  evidence  is  inadmissi- 
ous  insurance  should  be  expressed  in  the  ble  to  show  that  the  shipper  agreed  and 
policy  when  issued,  parol  evidence  is  in-  assented,  at  the  time  of  the  stowage,  tliat 
admissible  to  show  that  the  fact  of  the  an  additional  portion  of  the  goods  .should 
existence  of  such  prior  in.surance,  and  of  be  carried  on  deck.  Sayward  v.  Stevens, 
the  understanding  of  the  insured  that  it  3  Gray  (Mass.),  97,  102. 


378  LAW   OP    EVIDENCE.  [PART   U. 

to  be  an  absolute  engagement  to  pay  at  a  specified  day,  parol 
evidence  of  an  oral  agreement  at  the  same  time  that  the  payment 
should  be  prolonged, ^  or  depend  upon  a  contingency,^  (b)  or  be 
made  out  of  a  particular  fund,  has  been  rejected.^  Where  a  writ- 
ten agreement  of  partnership  was  unlimited  as  to  the  time  of 
commencement,  parol  evidence  that  it  was  at  the  same  time  ver- 
bally agreed  that  the  partnership  should  not  commence  until  a 
future  day,  was  held  inadmissible.^  So,  where,  in  assunipsit  for 
use  and  occupation,  upon  a  written  memorandum  of  lease,  at  a 
certain  rent,  parol  evidence  was  offered  by  the  plaintiff  of  an 
agreement  at  the  same  time  to  pay  a  further  sum,  being  the 
ground  rent  of  the  premises,  to  the  ground  landlord,  it  was  re- 
jected. ^  (c)     So,  where,  in  a  written  contract  of  sale  of  a  ship,  the 

8  Hoare  v.  Graham,  3  Campb.  57;  Hanson  v.  Stetson,  5  Pick.  506;  Spring  i>. 
Lovett,  11  Pick.  417. 

*  Rawsou  V.  Walker,  1  Stark.  361  ;  Foster  v.  Jolly,  1  C.  M.  &  R.  703;  Hunt  v. 
Adams,  7  Mass.  518;  Free  v.  Hawkins,  8  Taunt.  92  ;  Thompson  v.  Ketcham,  8  Johns. 
189;  Woodbridge  v.  Spooner,  3  B.  &  Aid.  233;  Moseley  t;.  Hanford,  10  B.  &  C.  729; 
Erwin  v.  Saunders,  1  Cowen,  249. 

5  Campbell  v.  Hodgson,  1  Gow,  74.  «  Dix  v.  Otis,  5  Pick.  38. 

■^  Preston  V.  Merceau,  2  W.  Bl.  1249.  A  similar  decision  was  made  in  the  "Isa- 
bella," 2  Rob.  Adm.  241,  and  in  White  t;.  Wilson,  2  B.  &  P.  116,  where  seamen's  wages 
were  claimed  in  addition  to  the  sum  named  in  the  shipping  articles.  The  English 
statutes  not  only  require  such  contracts  to  be  in  writing,  but  declare  that  the  articles 
shall  be  conclusive  upon  the  parties.  The  statute  of  the  United  States  is  equally  imper- 
ative as  to  the  writing,  but  omits  the  latter  provision  as  to  its  conclusiveness.  But  the 
decisions  in  both  the  cases  just  cited  rest  upon  the  general  rule  stated  in  the  text,  which 
is  a  doctrine  of  general  jurisprudence,  and  not  upon  the  mere  positive  enactments  of  the 
statutes.  See  2  Eob.  Adm.  243;  Bogert  ■«.  Cauman,  Anthon,  97.  The  American  courts 
adopt  the  same  doctrine,  both  on  general  principles  and  as  agreeable  to  the  iutent'of  the 
act  of  Congress  regulating  the  merchant  service.  See  Abbott  on  Shipping  (by  Story), 
p.  484,  n.  ;  Bartlett  v.  Wyman,  14  Johns.  260;  Johnson  v.  Dalton,  1  Cowen,  543.  The 
same  rule  is  applied  in  regard  to  the  Statute  of  Frauds.  See  11  Mass.  31.  See  further, 
Rich  V.  Jackson,  4  Bro.  Ch.  514;  Brigham  v.  Rogers,  17  Mass.  571 ;  Flinu  v.  Calow, 
1  M.  &  G.  589. 

(b)  See  Allen  v.  Furbish,  4  Gray,  504,  for  the  same  consideration  as  a  deed  con- 
5*6,  in  which  some  of  the  Massachusetts  taining  covenants  of  special  warranty  only, 
cases,  showing  that  parol  evidence  is inad-  Howe  r.  Walker,  4  Gray  (Mass.),  318; 
missible  to  annex  a  condition  to  an  abso-  Goodrich  v.  Longley,  Id.  379,  383.  Nor 
lute  promise  in  writing  in  the  form  of  can  a  limited  warranty  in  a  deed  be  ex- 
a  promissory  note,  promising  to  pay  a  tended  to  a  general  warranty  by  proof  of  a 
certain  sum  of  money  on  a  certain  day  parol  agreement  to  that  effect,  made  at  the 
named,  are  reviewed  by  Dewey,  J.,  and  time  of  the  delivery  of  the  deed.  Raymond 
the  principle  reaffirmed.  HoUenbeck  v.  v.  Raymond,  10  Cush.  (Mass.)  134,  141; 
Shutts,  1  Gray,  431  ;  Billings  v.  Billings,  Dutton  v.  Gerrish,  9  Id.  89.  Nor  can  it 
10  Cush.  178,  182  ;  South  wick  v.  Hap-  be  shown  by  parol  that  the  name  of  the 
good.  Id.  119,  121;  Ridgway  v.  Bowman,  grantee  in  a  deed  was  inserted  therein  by 
7  Cush.  268,  271.  Parol  evidence  is  not  mistake  of  the  scrivener,  in  place  of  an- 
admissible  to  show  that  a  promissory  note  other  person  who  was  intended  as  the 
was  intended  for  a  receipt.  City  Bank  v.  grantee,  and  who  afterwards  entered  upon 
Adams,  45  Me.  455.  and  occupied  the  land.     Crawford  v.  Spen- 

(c)  So  an  oral  promise  to  discharge  an  cer,  8  Id.  418. 

incumbrance  not  created  by  himself,  made  Where  a  lease,  under  seal,  of  coal  lands, 

by  a  grantor  to  a  grantee,  cannot  be  shown  said  nothing  as  to  the  quantity  to  he 
to  have  been  made  at  the  same  time  and    mined,  but  established  the  price  per  bushel 


CHAP.    XV.]  ADMISSIBILITY   OP   PAROL   EVIDENCE.  379 

ship  was  particularly  dcscril)cd,  it  was  held  that  parol  evidence 
of  a  further  descriptive  representation,  made  prior  to  the  time  of 
sale,  was  not  admissible  to  charge  the  vendor,  without  proof  of 
actual  fraud;  all  previous  conversation  being  merged  in  the  writ- 
ten contract. 8  So,  where  a  contract  was  for  the  sale  and  delivery 
of  "  Ware  potatoes, "  of  which  there  were  several  kinds  or  qualities, 
parol  evidence  was  held  not  admissible  to  show  that  the  contract 
was  in  fact  for  the  best  of  those  kinds. ^  Where  one  signed  a 
premium  note  in  his  own  name,  parol  evidence  was  held  inad- 
missible to  show  that  he  signed  it  as  the  agent  of  the  defendant, 
on  whose  property  he  had  caused  insurance  to  be  effected  by  the 
plaintiff,  at  the  defendant's  request,  and  who  was  sued  as  the 
promisor  in  the  note,  made  by  his  agent,  ^^(c?)  So,  where  an 
agent  let  a  ship  on  hire,  describing  himself  in  the  charter-party 
as  "  owner, "  it  was  held,  in  an  action  upon  the  charter-party, 
brought  by  the  true  owner,  that  parol  evidence  was  not  admis- 
sible to  show  that  the  plaintiff,  and  not  the  agent,  was  the  real 
owner  of  the  ship."    Even  the  subsequent  confession  of  the  party, 

8  Pickering  v.  Dowson,  4  Taunt.  779.  See  also  Powell  v.  Edmunds,  12  East,  6  ; 
Pender  v.  Fobes,  1  Dev.  &  Bat.  250  ;  Wright  v.  Crookes,  1  Scott,  N.  R.  685. 

9  Smith  V.  Jeftryes,  15  M.  &  W.  561. 

10  Stackpole  v.  Arnold,  11  Mass.  27.  See  also  Hunt  v.  Adams,  7  Mass.  518  ;  Shank- 
land  V.  Corp.  of  Washington,  5  Peters,  394.  But  parol  evidence  is  admissible  to  show 
that  one  of  several  promisors  signed  as  the  surety  of  another.  Carpenter  v.  King,_9 
Met.  511;  McGee  v.  Prouty,  Id.  547.  And  where  a  special  agreement  was  made  in 
writing  for  the  sale  of  goods  from  A  to  B,  the  latter  being  in  part  the  agent  of  C,  whose 
name  did  not  appear  in  the  transaction,  it  was  held,  that  C  might  maintain  an  action 
in  his  own  name  against  A  for  the  breach  of  tliis  contract,  and  that  parol  evidence  was 
admissible  to  prove  that  B  acted  merely  as  the  agent  of  C,  and  for  his  exclusive  benefit. 
Hubbert  v.  Borden,  6  Wharton,  79. 

"  Humble  v.  Hunter,  12  Q.  B.  310.  And  see  Lucas  v.  De  la  Cour,  1  M.  &  S.  249  ; 
Robson  V.  Drummond,  2  B.  &  Ad.  303. 

for  all  that  was  mined,  it  cannot  be  shown  of  them  shall  not,  as  between  themselves, 

by  parol,  that  the  lessee,  at  the  time  of  be  liable  in  consequence  of  his  becoming 

signing  the  lease,  promised  to  mine  all  he  such  a  surety,  may  be  proved  by  parol, 

could  dispose  of.     Lyon  v.  Miller,  24  Pa.  Barry  v.  Ransom,  2  Kernan  (N.  Y.),  462. 

St.    392;    Kennedy    v.   Erie,    &c.     Plank  But  see  Norton  y.  Coons,   2   Selden   (N". 

Road  Co.,  25  Id.    224  ;  Chase  v.  Jewett,  Y. ),  33.     So  upon  a  joint  and  several  note 

37  Me.    351.        "  Furring  for  the  whole  that  one  of  the  signers  is  a  surety,  a  fact 

house,"  in    a    written  building  contract,  not  appearing  on  its  face,  for  the  purpose 

cannot  be  shown  by  parol  to  mean  only  of  showing  that  the  defendants  gave  time 

usual  furring.    Herricku.  Noble,  27  Vt.  1.  to  the  principal  without  the  surety's  con- 

Nor  can  it  be  shown   by  parol  that  an  as-  sent.     Dickinson  v.  Commissioner,  6  Ind. 

signment  of  store  goods  was   intended  to  128  ;  Riley  v.  Gregg,  16  Wis.  666.     And 

in;;lude  the  "  store  books."       Taylor    v.  so,  generally,  to  show  the  relations  of  the 

Sayre,  4  Zabr.  (N.  J.)  647.  several  parties  to  each  other.     Br.  Bk.  of 

[d]  Myrick  v.  Dame,  9  Cush.  (Mass.)  Mobile  v.  Coleman,  20  Ala.  140.     So  that 

248,  254.     See  Arnold  v.  Cessna,  25   Pa.  a  lease  executed  by  an  administrator  was 

St.  34.     So  as  between  successive  indor-  for  the  benefit  of  the  estate  (Russell  v.  Ir- 

sers,   that   they    were   in    fact   cosureties,  win,  41  Ala.  292)  ;  and  that  a  certificate 

Weston  V.  Chamberlin,  7  Cush.  404  ;  Riley  of  deposit  taken  by  a  guardian  was  for  the 

V.  Gerrish,  9  Id.  104.     And  an  agreement  benefit  of  the  ward.     Beasley  i;.  Watson, 

between  two  sureties  ou  a  bond,  that  one  Id.  234. 


380  LAW   OF   EVIDENCE.  [PAKT   II. 

as  to  the  true  intent  and  construction  of  the  title-deed,  under 
which  he  claims,  will  be  rejected. ^^  The  books  abound  in  cases 
of  the  application  of  this  rule;  but  these  are  deemed  sufficient  to 
illustrate  its  spirit  and  meaning,  which  is  the  extent  of  our 
present  design. 

§  282.  other  language  only  excluded.  From  the  examples  given 
in  the  two  preceding  sections,  it  is  thus  apparent  that  tlie  rule 
excludes  only  parol  evidence  of  the  language  of  the  parties,  con- 
tradicting, varying,  or  adding  to  that  which  is  contained  in  the 
written  instrument ;  and  this  because  they  have  themselves  com- 
mitted to  writing  all  which  they  deemed  necessary  to  give  full 
expression  to  their  meaning,  and  because  of  the  mischiefs  which 
would  result,  if  verbal  testimony  were  in  such  cases  received. 
But  where  the  agreement  in  writing  is  expressed  in  short  and 
incomplete  terms,  parol  evidence  is  admissible  to  explain  that 
which  is  per  se  unintelligible,  such  explanation  not  being  incon- 
sistent with  the  written  terms.  ^  (a)  It  is  also  to  be  kept  in  mind, 
that  though  the  first  question  in  all  cases  of  contract  is  one  of 
interpretation  and  intention,  yet  the  question,  as  we  have  already 
remarked,  is  not  what  the  parties  may  have  secretly  and  in  fact 
intended,  but  what  meaning  did  they  intend  to  convey,  by  the 
words  they  employed  in  the  written  instrument.  To  ascertain 
the  meaning  of  these  words,  it  is  obvious  that  parol  evidence  of 
extraneous  facts  and  circumstances  may  in  some  cases  be  ad- 
mitted to  a  very  great  extent,  without  in  any  wise  infringing 
the  spirit  of  the  rule  under  consideration.  These  cases,  which 
in  truth  are  not  exceptions  to  the  rule,  but  on  the  contrary 
are  out  of  the  range  of  its  operation,  we  shall  now  proceed  to 
consider. 

§  283.  Several  writings.  It  is  in  the  first  place  to  be  observed, 
that  the  rule  does  not  restrict  the  court  to  the  perusal  of  a  single 
instrument  or  paper;  for,  while  the  controversy  is  between  the 

12  Paine  v.  Mclntier,  1  Mass.  69,  as  explained  iu  10  Mass.  461.     See  also  Townsend 
V.  Weld,  8  Mass.  146. 

1  Sweet  V.  Lee,  3  M.  &  G,  452. 

(a)  So,  where  the  writinor  was  "  Eec'd  319.     Cf.  CoUender  v.  Dunsmore,  55  N. 

of  P.  $500,  due  on  demand,"  it  was  held  Y.  200.  Certain  contracts,  however,  though 

that  parol  evidence  was  admissible  of  the  very   concise   in   their   lan<:Ciiage,    have   a 

consideration  of  the  promise  and  the  cir-  definite  meaning  in  the  commercial  world 

cumstancps  of  the  transaction.     De  Laval-  and  may  not  be  contradicted  by  parol  evi- 

lette  V.  Wendt,  75  N.  V.  579.     So,  when  dence.  "  Such  are  in  some  instances  accep- 

the  writing  was,  "I.  0.  U.  the  sum    of  tances   and   indorsements   of    commercial 

$160,  which    I    shall  pay  on   demand  to  paper.     Haner  v.   Patterson,    84   Pa.   St. 

you,"  parol  evidence  is  admissible  to  iden-  274  ;  Ross  v.  Espy,  66  Id.  481  ;  Jones  v. 

tify  "you."     Kinney  v.   Flynn,  2  R.    I.  Albee,  70  111.  34. 


CHAP.    XV.]  ADMISSIBILITY   OP   PAROL   EVIDENCE. 


881 


original  parties,  or  their  representatives,  all  their  contempora- 
neous writings,  relating  to  the  same  subject-matter,  are  admis- 
sible in  evidence.^  (6) 

§  284.  May  be  shown  to  be  void.  It  is  in  the  next  place  to  be 
noted,  that  the  rule  is  not  infringed  by  the  admission  of  parol 
evidence,  showing  that  the  instrument  is  altogether  void,  or  that 
it  never  had  any  legal  existence  or  binding  force ;  either  by  reason 
of  fraud,  or  for  want  of  due  execution  and  delivery,  or  for  the 
illegality  of  the  subject-matter,  (a)  This  qualification  applies  to 
all  contracts,  whether  under  seal  or  not.     The  want  of  considera- 

1  Leeds  v.  Lancashire,  2  Cam])b.  205  ;  Hartley  v.  Wilkinson,  4  Campb.  127  ;  Stone 
V.  Metcalf,  1  Stark.  53;  Bowerbank  v.  Monteiro,  4  Taunt.  846,  per  Gibbs,  J.  ;  Hunt 
V.  Liverinore,  5  Pick.  395  ;  Duvlin  v.  Hill,  2  Fairf.  434  ;  Couch  v.  Meeker,  2  Conn. 
302  ;  Lee  v.  Dick,  10  Pet.  482  ;  Bell  v.  Bruen,  17  Pet.  161  ;  s.  c.  1  Howard,  S.  0. 
169,  183. 

\ 


(h)  Where  the  question  turns  upon  the 
existence  of  the  written  contract,  or  which 
of  the  two  writiuEfs  was  adopted  by  the 
parties  as  the  binding  contract,  evidence 
of  extriusic  facts  is  admissible.  Kalama- 
zoo Nov.  Man.  Co.  v.  McAlister,  40  Mich. 
84  ;  Hill  V.  Miller,  76  N.  Y.  32.  So  evi- 
dence of  language  used  by  the  parties  dur- 
ing the  negotiation,  explanatory,  and  not 
contradictory,  of  tlie  language  used  in  the 
contract,  is  admissible.  Thorington  v. 
Smith,  8  Wall.  (U.  S.)  1  ;  McDonald  v. 
Longbottom,  1  E.  &  E.  977  ;  Muniford 
r.  Gething,  7  C.  B.  N.  s.  305  ;  Almgren  v. 
Dutilh,  5  N.  Y.  28 ;  Barrett  v.  Stow,  15 
111.  423;  Stoops  v.  Smith,  100  Mass.  63; 
Hart  V.  Hammett,  18  Vt.  127  ;  Sargent  v. 
Adams,  3  Gray  (Mass.),  72.  And  see  2Mst, 
§  288 ;  ante,  §  280. 

(a)  O'Donnell  u.  Clinton,  145  Mass. 
461  ;  Faunce  v.  State,  &c.  Ins.  Co.,  101 
Mass.  279  ;  Sherman  i;.  Wilder,  106  Id. 
537  ;  Wilson  v.  Haecker,  85  111.  349  ; 
Heeter  v.  Glasgow,  79  Pa.  St.  79  ;  Beers 
V.  Beers,  22  ]\Iicli.  42  ;  Martin  v.  Clarke, 
8  R.  I.  389  ;  Grierson  v.  Mason,  60  N.  Y. 
394.  Thus,  it  has  always  been  held  to  be 
competent  to  introduce  evidence  showing 
that  although  a  written  paper,  which  is  in 
form  a  complete  contract,  has  been  duly 
delivered,  yet  it  was  not  intended  by  the 
parties  to  become  a  binding  contract  until 
the  performance  of  some  condition  prece- 
dent, which  is  shown  by  the  oral  evidence. 
Thus  where  the  correspondence  of  the  par- 
ties showed  that  a  contract  for  the  pur- 
chase and  sale  of  lumber  on  credit  was 
entered  into  upon  a  contemporaneous  oral 
understanding  that  the  contract  of  pur- 
chase was  contingent  upon  a  satisfactory 
report   to   the   seller  from   a  commercial 


agency  as  to  the  pecuniary  responsibility 
of  the  buyer,  it  was  held  that  oral  evidence 
of  this  preliminary  oral  understanding, 
was  admissible  to  show  that  the  written 
contract  never  became  a  binding  one. 
Reynolds  v.  Robinson,  110  N.  Y.  654  ;  and 
to  the  same  effect,  Wilson  v.  Powers,  131 
Mass.  539,  and  Com.  v.  Welch,  144  Mass. 
356.  In  the  case  of  Adams  v.  Morgan, 
150  Mass.  148,  it  was  said  by  the  court 
that  it  is  also  competent  to  show  by  oral 
evidence  whetlier  an  iustrument  was  de- 
livered or  not,  and  if  its  terms  are  equally 
consistent  with  both,  it  is  competent  to 
show  either  an  absolute  or  a  qualified  de- 
livery. In  the  same  way  it  has  been  held 
that  where  a  license  to  sell  liquors  has 
been  issued  dated  back  a  month  pnor  to 
the  time  of  its  actual  issuing,  and  the  con- 
ditions precedent  to  the  validity  of  the 
license  were  not  performed  until  the  time 
when  it  was  actually  issued,  evidence  of 
this  fact  is  admissible  on  trial  of  the  com- 
plaint for  illegally  selling  liquor  after  the 
date  of  the  license,  but  before  its  actual  is- 
suing. Com.  V.  Welch,  144  Mass.  356. 
In  Pennsylvania,  the  rule  as  to  evidence 
of  an  oral  agreement  inducing  the  written 
contract,  has  been  worked  out  in  consider- 
able detail,  and  the  statement  that  may  be 
collected  from  the  cases,  is  as  follows  : 
That  parol  evidence  is  admissible  to  estab- 
lish  a  contemporaneous  oral  agreement 
which  induced  the  execution  .of  the  writ- 
ten contract,  though  such  oral  agreement 
may  vary,  change,  or  reform  the  instru- 
ment, but  the  evidence  showing  such  oral 
agreement  must  be  clear,  ])recise,  and  in- 
dubitable ;  that  is.that  it  shall  be  found 
that  the  witnesses  are  credible  —  that 
they    distinctly    remember  the    facts    to 


882 


LAW  OP  EVIDENCE. 


[part  II. 


tion  may  also  be  proved  to  show  that  the  agreement  is  not  bind- 
ing; (5)  unless  it  is  either  under  seal,  which  is  conclusive  evidence 
of  a  sufficient  consideration, ^  or  is  a  negotiable  instrument  in  the 
hands  of  an  innocent  indorsee.  ^  Frauds  practised  by  the  party 
seeking  the  remedy,  upon  him  against  whom  it  is  sought,  and  in 
that  which  is  the  subject-matter  of  the  action  or  claim,  is  uni- 
versally held  fatal  to  his  title.  "The  covin,"  says  Lord  Coke, 
"  doth  suffocate  the  right. "  The  foundation  of  the  claim,  whether 
it  be  a  record,  or  a  deed,  or  a  writing  without  seal,  is  of  no  im- 
portance; they  being  alike  void,  if  obtained  by  fraud,  ^(c)     Parol 


1  Supra,  §§  19,  22  ;  infra,  §  303  ;  Gardner  v.  Lightfoot,  71  Iowa,  577  ;  Feeney  v. 
Howaid,  79  Cal.  525  ;  Salisbury  v.  Clark,  61  Vt.  453. 

2  Supra,  §§  189,  190. 

3  2  Stark.  Evid.  340  ;  Tait  on  Evid.  327,  328  ;  Chitty  on  Contr.  527  a ;  Buckler  v. 
Millerd,  2  Ventr.  107  ;  Filmer  v.  Gott,  4  Bro.  P.  C.  230  ;  Taylor  v.  Weld,  5  Mass. 
116,  per  Sedgwick,  J.  ;  Franchot  v.  Leach,  5  Cowen,  508  ;  Dorr  v.  Munsell,  13  Johns. 
431  ;  Morton  v.  Chandler,  8  Greenl.  9  ;  Commonwealth  v.  BuUard,  9  Mass.  270  ;  Scott 
V.  Burton,  2  Ashm.  312. 


which  they  testify  —  and  that  they  narrate 
the  details  exactly  —  and  that  their  state- 
ments are  true,  although  of  course  absolute 
certainty  is  out  of  the  question.  Thomas 
V.  Loose,  114  Pa.  St.  45  ;  Cullmans  v. 
Lindsay,  114  Pa.  St.  170  ;  Cake  v.  Potts- 
ville  Bank,  116  Pa.  St.  270  ;  Greenawalt 
V.  Kohne,  85  Pa.  St.  369;  Barclay  v. 
Wainwright,  86  Pa.  St.  191.  Thus,  in 
the  case  of  Cullmans  v.  Lindsay,  supra,  the 
plaintiffs  introduced  evidence  to  show  that 
their  agent  was  induced  to  sign  the  con- 
tract by  a  parol  promise  of  the  defendants' 
agent,  on  tlie  ground  that  it  would  be  a 
fraud  in  the  defendants  after  having  pro- 
cured the  contract  by  such  parol  promise 
to  take  an  unfair  advantage  subsequently, 
and  deny  the  oral  qualification  upon  which 
the  contract  was  made.  The  question 
whether  the  testimony  as  to  the  oral  prom- 
ise or  inducement,  is  sufficiently  clear, 
precise,  and  indubitable,  is  a  question  for 
the  court.  Spencer  r.  Colt,  89  Pa.  St.  314. 
But  the  fact  whether  or  not  the  parol 
promise  was  the  inducing  cause  of  the  exe- 
cution of  the  written  contract,  especially 
when  the  mental  purpose  is  not  at  the  time 
expressed,  is  an  inference  to  be  drawn  from 
the  facts  by  the  jury.  The  parties  to  the 
contract  may  testify  what  their  intention 
was  in  this  regard  so  far  as  the  same  was 
expressed  in  words  at  the  time,  but  cannot 
testify  to  an  undisclosed  purpose  of  their 
mind,  or  a  mental  reservation  to  nullify 
the  express  words  of  their  contract.  Or, 
as  it  was  said  in  Spencer  v.  Colt,  supra: 
"The  unexpressed  intent,  motive,  or  be- 
lief existing  in  one  party's  mind  at  the 


time  of  the  execution  of  the  contract,  can- 
not aid  the  jury  in  ascertaining  whether 
the  langiiage  or  conduct  of  the  other  party 
has  been  such  as  to  create  that  intent,  mo- 
tive, or  belief  ;  the  parties  may  often  have 
different  impressions  as  to  its  effect  upon 
their  respective  interests,  and,  therefore, 
the  thought  of  one  cannot  be  proved  to 
bind  the  other."  It  has  been  held  that 
when  one  party  to  a  contract  is  unable  to 
read,  and  the  other  party,  knowing  the 
fact,  allows  him  to  sign  the  contract  and 
then  seeks  to  enforce  it,  this  is  such  a 
fraud  as  will  give  the  party  who  thus 
signed  the  contract  in  ignorance  of  its  con- 
tents, a  right  to  show  that  the  paper  does 
not  express  all  the  terms  of  the  agreement 
Avhich  thev  made.  Trambly  v.  Ricard, 
130  Mass.  "259.  Of.  Foye  v.  Patch,  132 
Mass.   106. 

(b)  Meyer  v.  Casey,  57  Miss.  615.  It 
has  been  held  that  even  in  a  deed,  the  re- 
cital of  the  consideration  is  not  conclusive 
evidence  as  between  the  grantor  and  grantee 
of  the  consideration  actually  passing  be- 
tween the  parties ;  and  it  may  be  shown 
by  oral  testimony  to  be  different  from  that 
recited  in  the  deed.  Howell  v.  Moores, 
127  111.  86  ;  Illinois  Land  &  Loan  Co.  v. 
Bonner,  91  111.  120  ;  Bruce  v.  Slemp,  82 
Va.  357.  And  in  a  recent  case  in  Wiscon- 
sin, Green  v.  Batson,  71  Wis.  57,  the  same 
principle  was  affirmed,  and  the  court  stated 
that  parol  evidence  is  admissible  to  show 
the  true  consideration  of  the  deed.  See, 
however,  Simanovich  v.  Wood,  145  Mass. 
180. 

(c)  Allen  V.  Furbish,  4  Gray  (Mass.), 


CHAP.    XV.]  ADMISSIBILITY   OP   PAROL   EVIDENCE.  383 

evidence  may  also  be  offered  to  show  that  the  contract  was  made 
for  the  furtherance  of  objects  forbidden  by  law,*  whether  it  be  by 
statute  or  by  an  express  rule  of  the  common  law,  or  by  the  gen- 
eral policy  of  the  law ;  or  that  the  writing  was  obtained  hj  felony ^^ 
or  by  duress;  ^  or  that  the  party  was  incapable  of  binding  himself, 
either  by  reason  of  some  legal  impediment,  such  as  infancy  or 
coverture,"  or  from  actual  imbecility  or  want  of  reason,^  whether 
it  be  by  means  of  permanent  idiocy  or  insanity,  or  from  a  tem- 
porary cause,  such  as  drunkenness  ;9  or  that  the  instrument  came 
into  the  hands  of  the  plaintiff  without  any  absolute  and  final 
delivery, ^^  by  the  obligor  or  party  charged,  {d) 

§  284  a.   When  writing  is  incomplete.      Nor  does  the  rule  apply 

*  Collins  V.  Blantern,  2  Wils.  347  ;  1  Smith's  Leading  Cas.  154,  168,  n.,  and  cases 
there  cited.  If  the  contract  is  by  deed,  the  illegality  must  be  sjiecially  pleaded. 
Whelpdale's  Case,  5  Co.  119  ;  Mestayer  v.  Biggs,  4  Tyrw.  471.  But  the  rule  in  the 
text  applies  to  such  cases  as  well  as  to  those  arising  under  the  general  issue.  See  also 
Biggs  V.  Lawrence,  3  T.  R.  454  ;  Waymell  v.  Reed,  5  T.  R.  600  ;  Doe  v.  Ford,  3  Ad. 
&  El.  649  ;  Catlin  v.  Bell,  4  Campb.  183  ;  Commonwealth  v.  Pease,  16  Mass.  91  ;  Nor- 
man V.  Cole,  3  Esp.  253  ;  Sinclair  v.  Stevenson,  1  C.  &  P.  582  ;  Chitty  on  Contr. 
519-527. 

5  2  li.  &  P.  471,  per  Heath,  J. 

6  2  Inst.  482,  483  ;  5  Com.  Dig.  Pleader,  2  "W.  18-23  ;  StoufiFer  ?;.  Latshaw,  2  Watts, 
165  ;  Thompson  v.  Lockwood,  15  Johns.  256  ;  2  Stark.  Evid.  274. 

7  2  Stark.  Evid.  274;  Anon.,  12  Mod.  609  ;  Van  Valkenburgh  v.  Rouk,  12  Johns. 
338  ;  2  Inst.  482,  483  ;  5  Dig.  uM  sup. 

8  2  Kent,  Comm.  450-453,  and  cases  there  cited  ;  Webster  v.  Woodford,  3  Day,  90  ; 
Mitchell  V.  Kingman,  5  Pick.  431  ;  Rice  v.  Peet,  15  Johns.  503. 

"  See  Barrett  v.  Buxton,  2  Aik.  167,  where  this  point  is  ably  examined  by  Pren- 
tiss, J.  ;  Seymour  V.  Delancy,  3  Cowen,  518  ;  1  Story's  Eq.  Jur.  §  231,  n.  (2)  ;  Wig- 
glesworth  v.  Steers,  1  Hen.  &  Munf.  70  ;  Prentice  v.  Achorn,  2  Paige,  31. 

10  Clark  v.  GifTord,  10  Wend.  310  ;  United  States  v.  Leffler,  11  Peters,  86;  Jackson 
d.  Titus  V.  Myers,  11  Wend.  533,  536  ;  Couch  v.  Meeker,  2  Conn.  302. 

504,  509  ;  Prescott  v.  Wright,   Id.  461  ;  for  purposes  of  his  own,  e.  g.  to  defraud 

Cusliing  V.  Rice,  46  Me.  303  ;  Thompson  his  creditors,  equity  will  not  admit  such 

V.  Bell,  37  Ala.  438  ;  Plant  v.  Condit,  22  evidence.     Hassam  v.   Barrett,  115  Mass, 

Ark.    454  ;    Selden   v.    Myers,    20    How,  256.     Nor  if  the  transaction  is  a  condi- 

(U.  S. )  506.     It  is  also  held  that  oral  evi-  tional  sale,  not  a  mortgage.     Bonham  v. 

dence  may  be  given  in  a  court  of  equity  to  Craig,  80  N.   C.  224. 
show  that  an  instrument  of  conveyance,  (d)  The   fact    that    an   instrument    is 

absolute  upon  its  face,  was  in  reality  in-  wrongly  dated  may  also  be  shown  by  parol, 

tended   as    a    mortgage  or   security  only.  Reffell  v.  Reffell,  L.  R.  1   P.   &  D.  139  ; 

This  evidence  is  admitted  upon  the  ground  Shaughnessey  v.   Lewis,   130  Mass.   355; 

that  the  mere  conduct  of  the  mortgagee  in  Cole  v.  Howe,  50  Vt.  35  ;  Gately  v.  Irvine, 

trying  to  treat  a  mortgage  as  an  absolute  51  Cal.  172  ;  Finney's  Appeal,  59  Pa.  St. 

conveyance,  or  in   requiring   an   absolute  398  ;  Stockham  v.  Stockham,  32  Md.  196. 

deed  when  the  transaction  is  in  reality  a  And  in  accordance  with  the  principle  stated 

loan,  is  a  fraud  against  which  equity  will  in  the  text  evidence  is  admissible  at  any 

relieve.     Campbell  v.  Dearborn,  109  Mass.  time  to  show  that  a  written  contract  was 

130  ;  Brick  v.  Brick,  98  U.  S.  514  ;  Mat-  by  oral  agreement  of  the  parties   not  to 

thews  V.   Sheehan,  69  N.  Y.   585  ;  Oden-  take  effect  unless  it  should  be  pronounced 

baugh  V.  Bradford,  67  Pa.  St.  96  ;  Plumer  lawful  by  counsel  who  were  to  be  consulted, 

V.  Guthrie,  76  Pa.    St.  441  ;  Lindauer  v.  or  upon  some  other  condition.      Ware  v. 

Curamings,  57  111.  195.     But  if  the  facts  Allen,  128  U.  S.  590  ;  Hymers  v.  Druhe, 

of  the  case  show  that  the  mortgagor  volun-  5  Mo.  App.  580.     See  also  ante,  note  a. 
tarily  adopted   that  mode  of  conveyance 


384 


LAW   OF   EVIDENCE. 


[part   II. 


in  cases  where  the  original  contract  was  verbal  and  entire,  and  a 
part  only  of  it  was  reduced  to  writing,  (a)  Thus,  where,  upon  an 
adjustment  of  accounts,  the  debtor  conveyed  certain  real  estate  to 
the  creditor  at  an  assumed  value,  which  was  greater  than  the 
amount  due,  and  took  the  creditor's  promissory  note  for  the  bal- 
ance; it  being  verbally  agreed  that  the  real  estate  should  be  sold, 
and  the  proceeds  accounted  for  by  the  grantee,  and  that  the  de- 
ficiency, if  any,  below  the  estimated  value,  should  be  made  good 
by  the  grantor ;  which  agreement  the  grantor  afterwards  acknowl- 
edged in  writing, —  it  was  held,  in  an  action  brought  by  the  latter 
to  recover  the  contents  of  the  note,  that  the  whole  agreement  was 
admissible  in  evidence  on  the  part  of  the  defendant;  and  that, 
upon  the  proof  that  the  sale  of  the  land  produced  less  than  the 
estimated  value,  the  deficiency  should  be  deducted  from  the 
amount  due  upon  the  note.  ^(6) 

1  Lewis  V.  Gray,  1  Mass.  297  ;  Lapham  v.  Whipple,  8  Met.  59. 


(rt)  Morgan  v.  Griffith,  L.  R.  6  Ex.  70; 
Chapin  v.  Dobson,  78  N.  Y.  74  ;  Callan 
V.  Lukens,  89  Pa.  St.  134 ;  Barclay  v. 
Wainwright,  86  Id.  191  ;  Caley  v.  Phila., 
&c.  R.  R.  Co.,  80  Id.  363  ;  Barclay  v. 
Hopkins,  59  Ga.  562  ;  Willis  v.  Hulbert, 
117  Mass.  151  ;  Bissenger  r.  Guitenian, 
6  Heisk.  (Tenn.)  277.  So,  an  oral  stipula- 
tion may  always  be  shown  that  the  instru- 
ment was  not  to  become  of  binding  force 
unless  some  condition  precedent  was  pre- 
viously fulfilled.  Lindlev  v.  Lacey,  17  C.  B. 
N.  s.  578  ;  Murray  v.  Stair,  2  B.  &  C.  82  ; 
Wilson  V.  Powers,  131  Mass.  539  ;  Earle 
V.  Rice,  111  Id.  17  ;  Greenawalt  v.  Kohne, 
85  Pa.  St.  369  ;  Black  v.  Lamb,  1  Beas. 
(N.J.)  108. 

So,  a  distinct  collateral  agreement,  in- 
dependent of  and  not  varying  the  written 
agreement,  may  be  proved  though  it  re- 
lates to  the  same  subject-matter.  Bonney 
V.  Morrill,  57  Me.  368  ;  Basshor  v.  Forbes, 
36  Md.  154. 

(b)  Sheffield  v.  Page,  Sprague's  Deci- 
sions, 285  ;  Harris  v.  Forman,  5  C.  B. 
N.  s.  1  ;  Wallis  v.  Littell,  11  C.  B.  n.  s. 
368  ;  8  Jur.  n.  s.  745  ;  see  also  Wake  v. 
Harrop,  10  W.  R.  626  ;  s.  c.  7  Law  T. 
N.  s.  96,  in  the  Excliequer  Chamber  ; 
Crane  v.  Elizabeth,  &c.,  29  N.  J,  L.  302. 
So  where  the  contract  is  part  by  parol  and 
part  by  telegram,  the  part  by  parol  may 
be  shown  to  control  and  modify  that  by 
telegram.  Beach  v.  Rar.  &  Del.  R.  R. 
Co.,  37  N.  Y.  457.  The  exception  to  the 
general  rule,  admitting  evidence  when  it 
is  shown  that  only  part  of  the  contract  was 
reduced  to  writing,  was  commented  on  in 


the  case  of  Eighmie  v.  Taylor,  98  N.  Y. 
294.  In  this  case  the  court  referred  to 
Chapin  v.  Dobson,  78  N.  Y.  74,  as  con- 
firming the  rule  that  oral  evidence  is  ad- 
missible when  the  original  contract  was 
verbal  and  entire,  and  a  part  onl}'  was  re- 
duced to  writing  ;  and  that  oral  evidence 
is  not  excluded  if  it  refers  not  to  the  sub- 
ject-matter of  tlie  writing  but  to  collateral 
undertakings.  The  court  .say  that  this  first 
exception,  i.  e.  as  to  cases  where  part  only  of 
the  contract  is  redu('ed  to  writing,  is  capa- 
ble, if  too  broadly  and  loosely  interpreted, 
of  working  utter  destruction  of  the  general 
rule  excluding  oral  evidence  ;  for  if  it  is 
possible  to  go  outside  the  instrument  to 
prove  that  there  was  a  stipulation  not  con- 
tained in  it,  so  that  onl}'  part  of  the  con- 
tract was  put  in  writing,  and,  therefore, 
because  of  that  fact,  enforce  the  oral  stip- 
ulation, there  is  little  force  left  in  the  rule 
itself.  At  the  same  time  the  court  affirms 
the  exception  that  if  upon  inspection  and 
study  of  the  w'riting,  read  in  the  light  of 
surrounding  circumstances,  it  is  apparent 
that  the  writing  does  not  contain  the  whole 
contract  and  undertaking  of  the  parties, 
oral  evidence  is  admissible  of  that  jiortion 
of  it  which  has  been  omitted  in  the  wiit- 
ing.  Eighmie  v.  Taylor,  98  N.  Y.  294. 
If  the  oral  contract  is  entirely  distinct  in 
its  subject-matter  from  the  written  con- 
tract, although  it  may  affect  the  same 
property,  the  existence  of  the  written  con- 
tract does  not  affect  the  admissibility  of 
the  oral  contract  in  evidence  ;  or,  in  other 
words,  if  the  two  contracts  are  distinct 
contracts,  and  one  is  not  the  mere  embodi- 


CHAP,    XV.]  ADMISSIBILITY   OF    PAROL   EVIDENCE.  385 

§  285.  To  explain  recitals  of  fact.  Neither  is  this  rule  infringed 
by  the  introduction  of  parol  evidence,  contradicting  or  explaining 
the  instrument  in  some  of  its  recitals  offacts^  where  such  recitals 
do  not,  on  other  principles,  estop  the  party  to  deny  them ;  and 
accordingly  in  some  cases  such  evidence  is  received.  ^  (a)  Thus, 
in  a  settlement  case,  where  the  value  of  an  estate,  upon  which  the 
settlement  was  gained,  was  in  question,  evidence  of  a  greater  sum 
paid  than  was  recited  in  the  deed  was  held  admissible. ^  So,  to 
show  that  the  lands  described  in  the  deed  as  in  one  parish,  were 
in  fact  situated  in  another.^  So,  to  show  that  at  the  time  of  en- 
tering into  a  contract  of  service  in  a  particular  employment,  there 
was  a  further  agreement  to  pay  a  sum  of  money  as  a  premium,  for 
teaching  the  party  the  trade,  whereby  an  apprenticeship  was  in- 
tended; and  that  the  whole  was  therefore  void  for  want  of  a 
stamp,  and  so  no  settlement  was  gained.^  So,  to  contradict  the 
recital  of  the  date  of  a  deed ;  as,  for  example,  by  proving  that  a 
charter-party,  dated  February  6th,  conditioned  to  sail  on  or  be- 
fore February  12th,  was  not  executed  till  after  the  latter  day,  and 
that  therefore  the  condition  was  dispensed  with.^  So,  to  show 
that  the  reference  in  a  codicil  to  a  will  of  1833  was  a  mistake,  that 
will  being  supposed  to  be  destroyed ;  and  that  the  will  of  1837  was 
intended.^  And,  on  the  other  hand,  where  a  written  guaranty 
was  expressed  to  be  "  in  consideration  of  your  having  discounted 
V. 's  note,"  and  it  was  objected  that  it  was  for  a  past  considera- 
tion, and  therefore  void,   explanatory  parol  evidence  was  held 

1  2  Poth.  on  Obi.  by  Evans,  pp.  181,  182. 

2  Rex  V.  Si'ammonden,  3  T.  R.  474.     See  also  Doe  v.  Ford,  3  Ad.  &  El.  649. 

3  Re.x  V.  Wickham,  2  Ad.  &  El.  517. 
*  Rex  V.  Laindon,  8  T.  R.  379. 

5  Hall  V.  Cazeuove,  4  East,  477.  See  further,  Tait  on  Evid.  pp.  332,  333-336  ; 
infra,  §  304. 

^  Qnincey  v.  Quincey,  11  Jur.  111. 

ment  of  the  other,  the  fact  that  one  is  in  acknowledgment  of  a  debt  is  relied  upon  to 
writing  does  not  affect  the  introduction  of  avoid  the  statute  of  limitations,  it  is  not 
the  other  by  parol  evidence.  Snow  v.  Al-  necessary  that  the  writing  should  contain 
ley,  151  Mass.  15.  If  the  subsequent  writ-  an  exact  statement  of  the  debt  and  of  the 
ten  agreement  embodies  only  part  of  the  circumstances ;  and  oral  evidence  is  ad- 
contract,  and  the  other  parts  not  so  em-  inissible  to  supplement  the  writing  by 
bodied  are  distinct  and  separable,  an  action  identifying  the  debt  and  the  amount,  or 
may  be  maintained  on  them  if  they  are  by  fixing  the  date  of  the  written  acknowl- 
founded  on  a  valuable  consideration,  and  edgment  when  the  writing  itself  does  not 
if  there  is  nothing  in  the  written  contract  contain  these  circumstances,  or  to  explain 
which  relates  to,  or  is  inconsistent  with  ambiguities  in  the  written  acknowledg- 
their  oral  stipulations,  or  if  it  appears  that  ment.  Manchester  v.  Braedner,  107  N.  Y. 
the  written  contract  was  not  intended  to  349. 

contain  all  the  provisions  of  the  contract  {a)  IngersoU  v.  Truebody,  40  Gal.  603  ; 

and    to    be   a   complete   statement   of  it.  Harris  v.  Rickett,  4  H.  &  N.  1  ;  Chapman 

Graffam   v.  Pierce,   143  Mass.  386  ;  Page  v.  Caliis,  2  F.  &  F.  161. 
V.    Monks,    5    Gray,    492.      If  a  written 
VOL.    I.  —  25 


386 


LAW    OF   EVIDENCE. 


[part  II. 


admissible^  to  show  that  the  discount  was  contemporaneous  with 
the  guaranty.''  So,  where  the  guaranty  was  "in  consideration  of 
your  having  tJds  day  advanced  to  V.  D.,"  similar  evidence  was 
held  admissible.^  It  is  also  admissible  to  show  when  a  written 
promise,  without  date,  was  in  fact  made.^  Evidence  may  also  be 
given  of  a  consideration,  not  mentioned  in  a  deed,  provided  it  be 
not  inconsistent  with  the  consideration  expressed  in  it.  ^'^(6) 

§  286.  To  show  nature  of  the  subject-matter.  As  it  is  a  lead- 
ing rule,  in  regard  to  written  instruments,  that  they  are  to  be 
interpreted  according  to  their  subject-matter,  it  is  obvious  that 
parol  or  verbal  testimony  must  be  resorted  to,  in  order  to  ascer- 
tain the  nature  and  qualities  of  the  subject,  ^{a)  to  which  the  instru- 

7  Ex  parte  Flight,  35  Leg.  Obs.  240.  And  see  Haigh  v.  Brooks,  10  Ad.  &  El.  309  ; 
Butcher  V.  Steuart,  11  M.  &  W.  857. 

8  Goldshede  v.  Swan,  35  Leg.  Obs.  203  ;  1  Exch.  154,  This  case  has  been  the  sub- 
ject of  some  animated  discussion  in  England.     See  12  Jur.  22,  94,  102. 

9  Lobb  V.  Stanley,  5  Q.  B.  574.  i»  Clittbrd  v.  Tvnrill,  9  Jur.  633. 

1  In  the  term  "subject,"  in  this  connection,  text-writers  include  everything  to 
which  the  instrument  relates,  as  well  as  the  person  who  is  the  other  contracting  party, 
or  who  is  the  object  of  the  provision,  whether  it  be  by  will  or  deed.  Phil.  &  Am.  on 
Evid.  732,  n.  (1). 


(b)  But  not  if  it  contradicts  any  part 
of  the  deed.  Thus,  where  one  gave  a  deed 
with  a  covenant  against  incumbrances,  and 
there  was  an  unpaid  mortgage  on  the  land 
which  the  purchaser,  as  part  of  the  con- 
sideration, promised  orally  to  pay  but  did 
inot,  and  sued  the  grantor  on  the  covenant, 
it  was  held  that  the  grantor  could  not  put 
in  evidence  of  this  oral  promise  because  it 
contradicted  the  covenant.  Simanovich  v. 
Wood,  145  Mass.  180.  If  a  variance  ex- 
ists between  the  mortgage  and  the  note, 
as  to  the  debt,  neither  is  conclusive.  The 
mortgage  is  prima  facie  evidence  of  the 
debt,  but  the  notes  are  so  also,  and  other 
evidence  may  be  offered  to  identify  the  debt. 
Paysou  V.  Lamson,  134  Mass.  593.  So,  if 
a  mortgage  described  a  note  as  of  a  certain 
date,  and  evidence  shows  that  the  note  has 
been  renewed,  this  fact  may  be  shown  by 
parol,  and  the  renewed  note  identified  as 
the  one  to  which  the  evidence  applies. 
Barrows  v.  Turner,  50  Me.  127  ;  Bigelow 
V.  Capen,  145  Mass.  273. 

(a)  Thus,  it  is  competent  to  introduce 
evidence  showing  the  surrounding  circum- 
stances, the  situation  of  the  parties,  their 
relation  to  each  other  and  to  the  subject- 
matter  of  the  agreement,  and  object  and 
purpose  of  both  parties  in  entering  into 
the  agreement,  as  avowed  at  the  time  it  is 
prepared  and  executed.  Such  evidence 
furnishes  light  by  which  the  court  is  en- 
abled to  discern  the  true  meaning  of  the 


terms  of  the  contract  as  the  parties  used 
them.  Oral  evidence  to  this  extent  is  al- 
ways admissible  in  the  construction  of 
written  instruments  where  ambiguity  ex- 
ists. West  V.  Smith,  101  U.  S.  Pep.  263; 
Knick  V.  Knick,  75  Va.  19  ;  Watson  v. 
Baker,  71  Tex.  739  ;  Bulkley  v.  Devine, 
]27  111.  407  ;  Brown  v.  Fales,  139  Mass. 
21.  Parol  testimony  is  also  admissible  to 
identify  the  parties  to  a  suit.  Parsons  v. 
Thornton,  82  Ala.  308.  And  so,  when  a 
speeitic  number  of  articles  of  a  certain 
number,  kind,  and  description  are  sold, 
parol  testimony  is  admissible  to  identity 
the  goods  offered  for  delivery  as  being  the 
identical  articles  which  were  sold.  Habe- 
nicht  V.  Lissak,  77  Cal.  139.  In  an  action 
on  a  promissory  note  given  in  jiart  pay- 
ment for  the  standing  timber  on  a  tract  of 
land  described  in  the  written  contract  of 
sale  as  "  all  pine  trmhcr  tivelre  inches  heart 
and  up,"  parol  testimony  is  admissible  to 
show  the  meaning  of  the  italicized  words. 
McKenzie  v.  Wimberlv,  86  Ala.  195.  See 
also  Moffitt  V.  Maness,"'l02  N.  C.  457.  But 
it  is  not  enough  to  render  parol  evidence 
competent,  that  circumstances  were  known 
to  one  of  the  parties,  but  unknown  to  the 
other,  which  might  have  influenced  such 
party  in  making  a  contract,  but  to  create 
an  ambiguity  tliat  opens  such  a  contract 
to  parol  explanation  it  must  be  established 
by  proof  of  circumstances  known  to  all 
of  the  pai'ties  to  the  agi'eement,  and  avail- 


CHAP,    XV.]  ADMISSIBILITY    OF    PAROL    EVIDENCE.  387 

ment  refers.  Evidence  which  is  calciihitcd  to  explain  the  subject 
of  an  instrument  is  essentially  different  in  its  character  from 
evidence  of  verbal  communications  respecting  it.  Whatever, 
therefore,  indicates  the  nature  of  the  subject,  is  a  just  medium  of 
interpretation  of  the  language  and  meaning  of  the  parties  in  rela- 
tion to  it,  and  is  also  a  just  foundation  for  giving  the  instrument 
an  interpretation,  when  considered  relatively,  different  from  that 
which  it  would  receive  if  considered  in  the  abstract,  (b)  Thus, 
where  certain  premises  were  leased,  including  a  yard,  descriljed 
by  metes  and  bounds,  and  the  question  was,  whether  a  cellar 
under  the  yard  was  or  was  not  included  in  the  lease ;  verbal  evi- 
dence was  held  admissible  to  show  that,  at  the  time  of  the  lease, 
the  cellar  was  in  the  occupancy  of  another  tenant,  and,  therefore, 
that  it  could  not  have  been  intended  by  the  parties  that  it  should 
pass  by  the  lease. ^  (c)  So,  where,  a  house,  or  a  mill,  or  a  factory 
is  conveyed,  eo  nomine,  and  the  question  is  as  to  what  was  part  ^'-'^^ 
and  parcel  thereof,  and  so  passed  by  the  deed,  parol  evidence  to 
this  point  is  admitted. ^(t?) 

§  287.    Rule   substantially  the   same   in  wills.       Indeed,    there   is 

2  2  Poth.  on  Obi.  by  Evans,  p.  185  ;  Doe  d.  Freeland  v.  Burt,  1  T.  R.  701;  Elfe  v. 
Gadsden,  2  Rich.  373;  Brown  v.  Slater,  16  Conn.  192;  Milbourn  v.  Ewart,  5  T.  R. 
381,  385. 

3  Ropps  V.  Barker,  4  Pick.  239  ;  Farrar  v.  Stackpole,  6  Greenl.  154  ;  infra,  §  287, 
cases  in  note.  But  where  the  language  of  the  deed  was  broad  enough  plainly  to 
include  a  garden,  together  with  the  house,  it  was  held,  that  the  written  paper  of  con- 
ditions of  sale,  excepting  the  garden,  was  inadmissible  to  contradict  the  deed.  Doe  v. 
Webster,  4  P.  &  D.  273. 

able  to  all,  in  selecting  the  language  em-  the  subject-matter  showed  there  were  two 

ployed  to  express  their  meaning.    Brady  v.  lanes,  neither  of  which  exactly  suited  the 

Cassidy,  104  N.  Y.  155.  description,  it  was  held  that  the  evidence 

(b)  For  this  purpose  may  be  given  in  should  go  to  tlie  jury  to  decide  which  lane 
evidence  the  acts,  declarations,  and  con-  was  the  line  of  the  land  conveyed.  Thor- 
veyances  of  the  person  making  the  grant,  nell  v.  Brockton,  141  Mass.  151.  If  the 
Cleverly  v.  Cleverly,  124  Mass.  314.  deed  contains  an  accurate  description  by 

(c)  Infra,  §§  401,  402,  and  notes,  permanent  boundaries,  capable  of  being 
Chadwick  v.  Burnley,  12  W.  R.  1077.  So,  ascertained,  a  general  reference  in  addi- 
when  the  deed  described  the  land  conveyed  tion  to  the  premises  as  being  in  the  pos- 
both  by  courses  and  distances,  and  by  session  of  the  grantor,  will  not  jiass  title 
monuments  of  a  transitory  character,  e.  g.  to  land  outside  the  description  given, 
heaps  of  stones  and  trees,  and  the  evidence  Thayer  v.  Finton,  108  N.  Y.  397. 
applying  it  to  the  subject-matter  showed  {d)  So,  when  a  contract  was  made  for 
that  if  the  existing  monuments  were  con-  an  article  called  "horn  chains,"  parol 
sidered  the  true  ones,  the  courses  and  evidence  was  atlmitted  to  sliow  that  the 
distances  were  incorrect,  while  if  other  article  known  to  the  trade  as  "horn 
earlier  monuments  were  taken,  the  courses  chains  "  were  made  partly  of  horns  and 
were  reconciled,  it  was  held  that  evidence  partly  of  hoofs,  and  to  show  that  the  par- 
of  the  existence  of  the  earlier  monuments  ties,  from  their  situation,  probably  inteml- 
was admissible.  Flaggy.  Mason,  141  Mass.  ed  such  articles.  Swett  v.  Shumway,  102 
64.  So,  when  the  description  was  of  a  boun-  Mass.  365.  Cf.  Whitney  v.  Boardman, 
dary  line  as  running  along  a  certain  lane,  118  Mass,  242, 

and  evidence  applying  the  description  to 


388  LAW   OP   EVIDENCE.  [PART   II. 

no  material  difference  of  principle  in  the  rules  of  interpretation 
betiveen  wills  and  contracts^  except  what  naturally  arises  from  the 
different  circumstances  of  the  parties.  The  object,  in  both  cases, 
is  the  same,  namely,  to  discover  the  intention.  And,  to  do  this, 
the  court  may,  in  either  case,  put  themselves  in  the  j^lace  of  the 
part^,  and  then  see  how  the  terms  of  the  instrument  affect  the 
property  or  subject-matter.^  («)     With  this  view,  evidence  must 

1  Doe  V.  Martin,  1  N.  &  M.  524  ;  s.  c.  4  B.  &  Ad.  771,  785,  per  Park,  J.  ;  Holsten 
V.  Jumpsoii,  4  Esp.  189  ;  Brown  v.  Thorndike,  15  Pick.  400  ;  Phil.  &  Am.  on  Kvid. 
736  ;  2  Phil.  Evid.  277.  The  rules  of  interpretation  of  wills,  iu  Vice-Chancellor 
Wigram's  admirable  treatise  on  that  subject,  may  be  safely  apj)lied,  mutalo  nomine,  to 
all  other  private  instruments.  They  are  contained  in  seven  propositions,  as  the  result 
both  of  principle  and  authority,  and  are  thus  expressed  :  "  I.  A  testator  is  always 
presumed  to  use  the  words,  jn  which  he  exjires.ses  himself,  according  to  their  strict  and 
primary  acceptation,  unless,  from  the  context  of  the  will,  it  appears  that  he  has  used 
them  in  a  different  sense  ;  in  which  case,  the  sense  in  which  he  thus  appears  to  have 
used  them  will  be  the  sense  in  which  they  are  to  be  constnied.  II.  Where  there  is 
nothing  in  the  context  of  a  will,  from  which  it  is  apparent  that  a  testator  has  used  the 
words,  in  which  he  has  expressed  himself,  in  any  other  than  their  strict  and  primary 
sense,  and  where  his  words  so  interpreted  are  sen.sible  with  reference  to  extrinsic  cir- 
cumstances, it  is  an  inflexible  rule  of  constiiiction,  that  the  words  of  the  will  shall  be 
interpreted  in  their  strict  and  primarj-  sense,  and  in  no  other,  although  they  may  be 
capable  of  some  popular  or  secondary  interpretation,  and  although  the  most  conclu.sive 
evidence  of  intention  to  use  them  in  such  pojmlar  or  secondary  sense  be  tendered. 
III.  Where  there  is  nothing  in  the  context  of  a  will,  from  which  it  is  apparent  that  a 
testator  has  used  the  words  in  which  he  has  expressed  himself  in  any  other  than  their 
strict  and  primary  sense,  but  his  words  so  interpreted  are  insensible  with  reference  to 
extrinsic  circumstances,  a  court  of  law  may  look  into  the  extrinsic  circumstances  of  the 
case,  to  see  whether  the  meaning  of  the  words  be  sensible  in  any  popular  or  secondary 
sense,  of  which,  with  reference  to  these  circumstances,  they  are  cap.able.  IV.  "Where 
the  characters,  in  which  a  will  is  written,  are  difficult  to  be  deciphered,  or  the  language 
of  the  will  is  not  understood  by  the  court,  the  evidence  of  persons  skilled  in  decijjher- 
ing  writing,  or  who  understand  the  language  in  which  the  will  is  written,  is  admissible 
to  declare  what  the  characters  are,  or  to  inform  the  court  of  the  proper  meaning  of  the 
words.  V.  For  the  purpose  of  determining  the  object  of  a  testator's  bounty,  or  the 
subject  of  disposition,  or  the  quantity  of  interest  intended  to  be  given  by  his  will,  a 
court  may  inquire  into  every  material  fact  relating  to  the  person  who  claims  to  be 
interested  under  the  will,  and  to  the  property  which  is  claimed  as  the  subject  of  dispo- 
sition, and  to  the  circumstances  of  the  testator  and  of  his  family  and  affairs  ;  for  the 
])urpose  of  enabling  the  court  to  identify  the  person  or  thing  intended  by  the  testator, 
or  to  determine  the  quantity  of  interest  he  has  given  by  his  will.  The  same  (it  is  con- 
ceived) is  true  of  every  other  disputed  point,  respecting  which  it  can  be  shown,  that  a 
knowledge  of  extrinsic  facts  can  in  any  way  be  made  ancillary  to  the  right  interpreta- 
tion of  a  testator's  words.  VI.  Where  the  words  of  a  will,  aided  by  evidence  of  the  ma- 
terial facts  of  the  case,  are  insufficient  to  determine  the  testator's  meaning,  no  evidence 
will  be  admissible  to  prove  what  the  testator  intended,  and  the  will  (excejit  in  certain 
special  cases  —  see  Proposition  VII.)  will  be  void  for  uncertainty.  Vil.  Notwith- 
stamling  the  rule  of  law,  which  makes  a  will  void  for  uncertainty,  wher  the  words, 
aided  by  evidence  of  the  material  facts  of  the  case,  are  insufficient  to  determine  the 
testator's  meaning,  courts  of  law,  in  certain  special  cases,  admit  extrinsic  evidence  of 
intention,  to  make  certain  the  ])erson  or  thing  intended,  where  the  description  in  the 
will  is  insufficient  for  the  purpose.  These  cases  may  be  thus  defined  :  Where  the 
object  of  a  testator's  bounty,  or  the  subject  of  disposition  (i.  e.  person  or  thing 
intended),  is  described  in  terms  which  are  applicable  indifferently  to  more  than  one 

(n)  Lancey  v.  Phoenix  Ins.  Co.,  56  Me.  Cruise's  Dig.  (Greenleafs  ed.)  tit.  38,  c.  9, 

562  :  pr'st,  vol.  ii.  §  671.     For  Mr.  Pow-  §§  1-15,  and   notes  ;    2d  Greenleafs   ed. 

ell's  rules  for  the  construction  of  devises,  (1857)    &c.,    vol.    iii.   pp.   172-179,    and 

see  2  Pow.  on  Dev.  by  Jarman,  pp.  5-11  ;  notes. 


CHAP.    XV.]  ADMISSIBILITY   OP    PAROL   EVIDENCE.  389 

be  admissible  of  all  the  circumstances  surrounding  the  author  of 
the  instrument. 2  (i)  In  the  simplest  case  that  can  be  put,  namely, 
that  of  an  instrument  appearing  on  the  face  of  it  to  be  i)erfectly 
intelligible,  inquiry  must  be  made  for  a  subject-matter  to  satisfy 
the  description.  If,  in  the  conveyance  of  an  estate,  it  is  desig- 
nated as  Blackacre,  parol  evidence  must  be  admitted  to  show 
what  held  is  known  by  that  name.  Upon  the  same  principle, 
where  there  is  a  devise  of  an  estate  purchased  of  A,  or  of  a  farm 
in  the  occupation  of  B,  it  must  be  shown  by  extrinsic  evidence 
what  estate  it  was  that  was  purchased  of  A,  or  what  farm  was  in 
the  occupation  of  B,  before  it  can  be  known  what  is  devised,  ^(c) 
So,  if  a  contract  in  writing  is  made,  for  extending  the  time  of 
payment  of  "certain  notes,"  held  by  one  party  against  the  other, 
parol  evidence  is  admissible  to  show  what  notes  were  so  held  and 
intended.^  {d) 

person  or  thing,  evidence  is  admissible  to  prove  which  of  the  persons  or  things  so  de- 
scribed was  intended  by  the  testator."  See  Wigrani  on  the  Admission  of  Extrinsic 
Evidence  in  Aid  of  the  Interpretation  of  Wills,  pp.  11-14.  See  also  Guy  v.  Sharp,  1 
M.  &  K.  602,  per  Ld.  Brougham,  C. 

2  The  pro]>riety  of  admitting  such  evidence  in  order  to  ascertain  the  meaning  of 
doubtful  words  or  expressions  fn  a  will,  is  expressly  conceded  by  Marshall,  C.  J.,  in 
Smitli  V.  Bell,  6  Peteis,  75.  See  also  Wooster  v.  Butler,  13  Conn.  317  ;  Baldwin  v. 
Carter,  17  Conn.  201  ;  Brown  v.  Slater,  16  Conn.  192  ;  Marshall's  Appeal,  2  Barr,  388  ; 
Stoner's  Appeal,  Id.  428  ;  Great  Northern  Railw.  Co.  v.  Harrison,  16  Jur.  565  ;  14 
Eng.  L.  &  Ei[.  195.  per  Parke,  B.  If  letters  are  offered  against  a  party,  it  seems  he 
may  read  his  immediate  replies.  Roe  v.  Day,  7  C.  &  P.  705  ;  and  may  prove  a  previous 
conversation  with  the  party  to  show  the  motive  and  intention  in  writing  them,  Reay 
V.  Richardson,  2  C.  M.  &  R.  422  ;  sicpra,  §  197. 

3  Sandford  v.  Raikes,  1  Mer.  646,  653,  per  Sir  W.  Grant :  Doe  d.  Preedy  v.  Hol- 
tom,  4  Ad.  &  El.  76,  81,,  per  Coleridge,  J.  ;  Doe  v.  Martin,  4  B.  &  Ad.  771,  per  Parke, 
J.  "  Whether  parcel,  or  not,  of  the  thing  demised,  is  always  matter  of  evidence." 
Per  Buller,  J.,  in  Doe  v.  Burt,  1  T.  R.  704,  R.  ace.  in  Doe  v.  E.  of  Jersey,  3  B.  &  C. 
870  ;  Doe  v.  Chichester,  4  Dow,  65  ;  2  Stark.  Evid.  558-561. 

*  Bell  V.  Martin,  3  Harrison,  167. 

{b)  Altschul    V.    San    Francisco,    &c.  Woods  y.  Sawin,  4  Gray  (Mass.),  322.    So 

Association,   43  Cal.   171;  Field  v.  Mun-  an  agreement  in  writing  to  convey  "the 

son,  47  N.  Y.  221  ;   Suffern  v.  Butler,  21  wharf  and  flats  occupied  by  A,  and  owned 

N.  J.  Eq.  410  ;  Foster  v.  McGraw,  64  Pa.  by  B,"   may   be   applied   to    the  subject- 

St.  464.  matter  by  parol.     Gerrish  v.  Towne,  3  Id. 

(c)  Tuxbury  v.  French,  41  Mich.  7;  82,  88.  So,  "the  Scherinerhorn  brick- 
Cleverly  V.  Cleverly,  124  Mass.  314  ;  yard."  Seaman  i'.  Hogeboom,  21  Barb. 
Black  V.  Hill,  32  Ohio  St.  313  ;  Maguire  (N.  Y.)  398.  See  also  Russel  v.  Werntz, 
V.  Baker,  57  Ga.  109.     If  a  lot  of  land  is  24  Pa.  St.  337. 

bounded  by  a  line  running  to  a  certain         (d)  Bancroft   v.  Grover,  23  Wis.   463  ; 

point,  evidence  to  fix  that  point  is  admis-  Kimboll    v.    Myers,    21    Mich.    276.      So 

•sible.    Dunham  ».  Gannett,  124  Mass.  151.  where   the    agreement  was    for   a   certain 

And  to  fix  the  boundaries  in  fact,  generally,  number  of  casks  of  blacklead,  evidence  is 

Raymond  v.  Coffey,   5  Oreg.    132.     So"  a  admissible   to  show  what   kind   of  ca,sks 

deed  of  land  known  by  the  name  of  the  were    intended.       Keller    v.    Webb,     125 

"mill  spot"  may  be  explained  by  parol  Mass.  ^.     So,  where  one  is  described  in 

evidence   of  what  the    "mill  spot"    was  a  deed  as  trustee,  parol   evidence  of  the 

commonly  reputed,  at  and  before  the  time  trust  is  admissible.     Railroad  Co.  v.  Du- 

of  the  execution  of  the  deed,  to  include,  rant,  95  U.  S.  576. 


390  LAW   OF   EVIDENCE.  [PART   II. 

§  288.  Illustrations.  It  is  only  in  this  mode  that  parol  evi- 
dence is  admissible  (as  is  sometimes,  but  not  very  accurately, 
said)  to  explain  written  instruments;  namely,  by  showing  the 
situation  of  the  party  in  all  his  relations  to  persons  and  things 
around  him,  or,  as  elsewhere  expressed,  by  proof  of  the  surround- 
ing circumstances.  Thus,  if  the  language  of  the  instrument  is 
applicable  to  several  persons,  to  several  parcels  of  land,  to  sev- 
eral species  of  goods,  to  several  monuments  or  boundaries,  to 
several  writings;^  (a)  or  the  terms  be  vague  and  general,  or  have 
divers  meanings,  as  "household  furniture,"  "stock,"  "freight," 
"factory  prices,"  and  the  like;^  or  in  a  will,  the  words  "child," 
"children,"  "grandchildren,"  "son,"  "family,"  or  "nearest  rela- 
tions," are  employed; ^(6)  in  all  these  and  the  like  cases,  parol 
evidence  is  admissible  of  any  extrinsic  circumstances,  tending  to 
show  what  person  or  persons,  or  what  things,  were  intended  by 
the  party,  or  to  ascertain  his  meaning  in  any  other  respect ;  ^  and 

1  Miller  v.  Travers,  8  Bing.  244  ;  Storer  v.  Freeman,  6  Mass.  435  ;  Waterman  v. 
Johnson,  13  Pick.  261:  Hodges  v.  Horsfali,  1  llus.  &  My.  116;  Dillon  i;.  Harris,  4  Bligh, 
N.  s.  343,  3.56  ;  Parks  v.  Gen.  Int.  Assur.  Co.,  5  Pick.  34  ;  Coit  v.  Starkweather,  8 
Conn.  289  ;  Blake  v.  Doherty,  5  Wheaton;  359  ;  2  Stark.  Evid.  558-561. 

2  Peisch  V.  Dickson,  1  Mason,  10-T2,  per  Story,  J.  ;  Pratt  i-.  Jackson,  1  Bro.  P.  C. 
222  ;  Kelly  v.  Powlet,  Ambl.  610  ;  Bunn  v.  Wiuthrop,  1  Johns.  Cii.  329  ;  Le  Farrant 
V.  Spencer,  1  Ves.  97 ;  Colpoys  v.  Colpoys,  Jacob,  451  ;  Wigram  on  Wills,  p.  64  ;  Gob- 
let V.  Beechey,  3  Sim.  24  ;  Barrett  v.  Allen,  10  Ohio,  426  ;  Avery  v.  Stewart,  2  Conn. 
69  ;  Williams  v.  Gilman,  3  Greenl.  276. 

3  Blackwell  v.  Bull,  1  Keen,  176  ;  Wvlde's  Case,  6  Co.  16  ;  Biown  i'.  Thorndike, 
15  Pick.  400  ;  Richardson  v.  Watson,  4  B.  &  Ad.  787.  See  also  Wigram  on  Wills, 
p.  58;  Doe  v.  Joioviile,  3  East,  172;  Green  v.  Howard,  1  Bro.  Ch.  32;  Leigh  v. 
Leigh,  15  Ves.  92  ;  Beachcroft  v.  Beachcroft,  1  Madd.  430. 

*  Goodinge  v.  Goodinge,  1  Ves.  231  ;  Jeacock  v.  Falkener,'l  Bro.  Ch.  295;  Fon- 
nereau  v.   Poyntz,   Id.  473;  Mackell  v.   Winter,  3  Ves.  Jr.  540,  541  ;  Lane  v.   Lord 


-idy, ,  -      ,         o  .... 

admissible  to  show  what  debt  was  referred  to,  in  a  letter  of  collateral  guaranty.  Drum- 
mond  V.  Prestman,  12  Wheat.  515.  So,  to  show  that  advances,  which  had  been  made, 
were  in  fact  made  upon  the  credit  of  a  particular  letter  of  guaranty.  Douglass, i?.  Rey- 
nolds, 7  Pet.  113.  So,  to  identify  a  note,  wliich  is  provided  for  in  an  assignment  of 
the  debtor's  property  for  the  benefit  of  his  creditors,  but  which  is  misde.scribed  in  the 
schedule  annexed  to  the  assignment.  Pierce  v.  Parker,  4  Met.  80.  So,  to  show  that 
the  indorsement  of  a  note  was  made  merely  for  collateral  security.  Dwight  v.  Linton, 
3  Rob.  (La.)  57.     See  also  Bell  v.  Firemen's  Ins.  Co.,  Id.   423,  428,  where  parol  evi- 

(a)  Storer  v.  Elliot  Fire  Insurance  Co.,  236.  Cf.  Weatherhead  v.  Sewell,  9  Humph. 

45  Me.  175  ;  Reamer  v.  Nesmith,  34  Cal.  (Tenn.)  272.     So,  proof  that  "nephews" 

624.     And  see  post,  §  290  ;    Garwood  v.  means  illegitimate  nephews,  cannot  be  ad- 

Gar'wood.  29  Cal.  514  ;  Holdings.  Elliott,  mitted  if  there  are  any  legitimate  nephews. 

5  H.  &  N.  117.  If  not,  such  proof  is  admissible.     Brower 

0))    Hut    if  the   word    "children"    is  t».  Bowers,  1  Abb.  (N.  Y. )  Ap]).  Dec.  214. 

used,  and  there  are,  or  may  be,  at  the  time  So  where  a  bequest  was  to  "my  daughter 

the  word  is  u.sed,  Iccjitimnte  children,  proof  and  it  was  shown  that  there  was  no  daugh- 

that  the  person  using  the  word  meant  to  ter  except  an  informally  adopted  one ;  evi- 

include  illegitimate  children,  is  inadmi.ssi-  dence  was  admitted  to  show  that  she  was 

ble.     Ellis  V.  Houston,  L.  R.  10  Ch.  Div.  intended.     Re  Cahn,  3  Redf.  (N.  Y.)  31. 


CHAP.    XV.]  ADMISSIBILITY   OF    PAROL   EVIDENCE.  391 

this,  without  any  infringement  of  the  rule,  which,  as  we  have 
seen,  only  excludes  parol  evidence  of  other  language,  declaring  his 
meaning,  than  that  which  is  contained  in  the  instrument  itself,  (c) 
§  289.  Wills.  In  regard  to  wills,  much  greater  latitude  was 
formerly  allowed,  in  the  admission  of  evidence  of  intention,  than 
is  warranted  by  the  later  cases.  The  modern  doctrine  on  this 
subject  is  nearly  or  quite  identical  with  that  which  governs  in  the 
interpretation  of  other  instruments;  and  is  best  stated  in  the  lan- 
guage of  Lord  Abinger's  own  lucid  exposition,  in  a  case  in  the 
Exchequer,^  "The  object,"  he  remarked, "in  all  cases,  is  to  dis- 
cover the  intention  of  the  testator.  The  first  and  most  obvious 
mode  of  doing  this  is  to  read  his  will  as  he  has  written  it,  and 
collect  his  intention  from  his  words.  But  as  his  words  refer  to 
facts  and  circumstances,  respecting  his  property  and  his  family, 
and  others  whom  he  names  or  describes  in  his  will,  it  is  evident 
that  the  meaning  and  application  of  his  words  cannot  be  ascer- 
tained, without  evidence  of  all  those  facts  and  circumstances.^ 
To  understand  the  meaning  of  any  writer,  we  must  first  be  ap- 
prised of  the  persons  and  circumstances  that  are  the  subjects  of 
his  allusions  or  statements ;  and  if  these  are  not  fully  disclosed 
in  his  work,  we  must  look  for  illustration  to  the  history  of  the 
times  in  which  he  wrote,  and  to  the  works  of  contemporaneous 

dence  was  admitted  of  an  agreement  to  sell,  prior  to  the  deed  or  act  of  sale.  So,  to 
show  what  flats  were  occupied  by  the  riparian  propiietor,  as  appurtenant  to  his  upland 
and  wharf,  and  passed  with  them  by  the  deed.  Treat  v.  Strickland,  10  Shepl.  234. 

1  Hiscocks  V.  Hiscocks,  5  M.  &  W.  363,  367.  Tiiis  was  an  action  of  ejectment, 
brought  on  the  demise  of  Simon  Hiscocks  against  John  Hiscocks.  The  question  turned 
on  the  words  of  a  devise  in  the  will  of  Simon  Hiscocks,  the  grandfather  of  the  lessor  of 
the  plaintiff  and  of  the  defendant.  By  his  will  Simon  Hiscocks,  after  devising  estates 
to  his  son  Simon  for  life,  and  from  and  after  his  death,  to  his  grandson,  Henry  His- 
cocks, in  tail  male,  and  making,  as  to  certain  other  estates  an  exactly  similar  provision 
in  favor  of  his  son  .John  for  life ;  then,  after  his  death,  the  testator  devised  those 
estates  to  "my  grandson,  John  Hiscocks,  eldest  son  of  the  said  John  Hiscocks."  It 
was  on  this  devise  that  tlie  question  wholly  turned.  In  fact,  John  Hiscocks,  the 
father,  had  been  twice  married  ;  by  his  first  wife  he  had  Simon,  the  lessor  of  the  plain- 
tiff, his  eldest  son  ;  the  eldest  son  of  tlie  second  marriage  was  John  Hiscocks,  the  de- 
fendant. The  devise,  therefore,  did  not,  both  by  name  and  description,  apply  to  either 
tlie  lessor  of  the  plaintiff,  who  was  the  eldest  son,  but  whose  name  was  Simon,  nor  to 
the  defendant,  who,  thougli  his  name  was  John,  was  not  the  eldest  son. 

2  See  Crocker  v.  Crocker,  11  Pick.  257;  Lamb  v.  Lamb,  Id.  375,  per  Shaw,  C.  J. ; 
Bainbridge  v.  Wade,  20  Law  J.  N.  s.  Q.  B.  7  ;  1  Eng.  L.  &  Eq.  236. 

(c)  Raffles  v.  Wichelhaua,  2  H.  &  C.  District,  27  Vt.   231.     So,  also,  where  a 

906;   Blake  v.    Exch.  Ins.  Co.,    12  Gray  note  had  on  it  the  following  indorsements  : 

(Mass.),  265.     Parol  evidence  maybe  in-  "Greenwood  &  Nichols  —  without  recourse 

troduced  to  show  wiiat  persons  were  meant  — Asa    Perley,"   the  first   indorsers   were 

by  the  designation  of  "  Horace  Gray  and  allowed  to  prove  that  the  words  "without 

others,"  in  a  written  agreement.   Herring  recourse  "  were  written  by  them  when  they 

V.  Boston  Iron  Co.,  1  Gi-ay  (Mass.),  134;  indorsed    the    note.      Fitchburg   Bank    v. 

and  to  show  the  circumstances  attending  Greenwood,    2   Allen    (Mass.),    434.     See 

the  giving  a  written  certificate  of  compe-  also  Rey  «.  Simpson,  22  How.  (U.  S.)  341. 
tency  to  teach  school,  Hopkins  v.   School 


392  LAW   OF   EVIDENCE.  [PART   II. 

authors.  All  the  facts  and  circumstances,  therefore,  respecting 
persons  or  property,  to  which  the  will  relates,  are  undoubtedly 
legitimate,  and  often  necessary  evidence,  to  enable  us  to  under- 
stand the  meaning  and  application  of  his  words.  Again,  the  tes- 
tator may  have  habitually  called  certain  persons  or  things  by 
peculiar  names,  by  which  they  were  not  commonly  known.  If 
these  names  should  occur  in  his  will,  they  could  only  be  ex- 
plained and  construed  by  the  aid  of  evidence,  to  show  the  sense 
in  which  he  used  them,  in  like  manner  as  if  his  will  were  written 
in  cipher,  or  in  a  foreign  language.  The  habits  of  the  testator, 
in  these  particulars,  must  be  receivable  as  evidence,  to  explain 
the  meaning  of  his  will,  (a)  But  there  is  another  mode  of  ob- 
taining the  intention  of  the  testator,  which  is  by  evidence  of  his 
declarations,  of  the  instructions  given  for  his  will,  and  other  cir- 
cumstances of  the  like  nature,  which  are  not  adduced  for  explain- 
ing the  words  or  meaning  of  the  will,  but  either  to  supply  some 
deficiency,  or  remove  some  obscurity,  or  to  give  some  effect  to 
expressions  that  are  unmeaning  or  ambiguous.  Now,  there  is 
but  one  case  in  which  it  appears  to  us  that  this  sort  of  evidence 
of  intention  can  properly  be  admitted,  and  that  is,  where  the 
meaning  of  the  testator's  words  is  neither  ambiguous  nor  ob- 
scure, and  where  the  devise  is,  on  the  face  of  it,  perfect  and  in- 
telligible, but  from  some  of  the  circumstances  admitted  in  proof, 
an  ambiguity  arises  as  to  which  of  the  two  or  more  things,  or 
which  of  the  two  or  more  persons  (each  answering  the  words  in 
the  will),  the  testator  intended  to  express.  Thus,  if  a  testator 
devise  his  manor  of  S.  to  A.  B.,  and  has  two  manors  of  North  S. 
and  South  S.,  it  being  clear  he  means  to  devise  one  only,  whereas 
both  are  equally  denoted  by  the  words  he  has  used,  in  that  case 
there  is  what  Lord  Bacon  calls  '  an  equivocation,'  that  is,  the 
words  equally  apply  to  either  manor,  and  evidence  of  previous 
intention  may  be  received  to  solve  this  latent  ambiguity,  for  the 
intention  shows  what  he  meant  to  do;  and  when  you  know  that, 
you  immediately  perceive  that  he  has  done  it,  by  the  general 
words  he  has  used,  which,  in  their  ordinary  sense,  may  properly 
bear  that  construction.  It  appears  to  us  that,  in  all  other  cases, 
parol  evidence  of  what  was  the  testator's  intention  ought  to  be 
excluded,  upon  this  plain  ground,  that  his  will  ought  to  be  made 

(n)  Thus  the  hahit  of  the  testator  to  estate  called  Cleeve  Court"  it  was  held 
designate  certain  lots  of  land  by  certain  that  evidence  of  his  treatment  of  the  prop- 
names  may  be  proved,  so  as  to  show  what  erty  and  what  he  called  Cleeve  Court  was 
parcels  of  land  pass  under  the  devise,  admissible.  Castle  v.  Fox,  L.  R.  11  Eq. 
Benham  v.  Hendrickson,  32  N.  J.  Eq.  441.  542. 
So  when  one  devised  his  "mansion  and 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  393 

in  writing;  and  if  his  intention  cannot  be  made  to  appear  by  the 
writing,  explained  by  circumstances,  there  is  no  will.  "^ 

3  The  learned  Chief  Baron's  subsequent  commentary  on  the  opjiosing  decisions 
seems,  in  a  gr.eat  measure,  to  have  exiiausted  this  toiiic.  "  It  must  V)e  owned,  how- 
ever," said  he,  "tliat  there  are  decided  casfs  which  are  not  to  be  reconciled  with  this 
distinction,  in  a  manner  altogether  satisfactoiy.  Some  of  them,  indeed,  exhibit  but 
an  apparent  inconsistency.  Thus  for  exami)le,  in  the  case  of  Doc  v.  Huthwaite,  and 
Bradshaw  v.  Bradshaw,  tlie  only  thing  decided  was,  that,  in  a  case  like  the  ])resent, 
some  parol  evidence  was  admissible.  There,  however,  it  was  not  decided  that  evidence 
of  the  testator's  intention  ought  to  be  received.  The  decisions,  wlien  duly  conr,idered, 
amount  to  no  more  than  tliis,  that  where  the  words  of  the  devise,  in  their  primary  sense, 
when  applied  to  tlie  circumstances  of  the  family  and  the  property,  make  the  devise  in- 
sensible, coUateral  facts  may  be  resorted  to  in  order  to  show  that,  in  some  secondary 
sense  of  the  words,  — and  one  in  which  the  testator  meant  to  use  them,  — the  devise 
may  have  a  full  ettect.  Tiius  again,  in  Cheyney's  Case,  and  in  Counden  v.  Clarke,  '  tlie 
averment  is  taken,'  in  order  to  sliow  which  of  two  persons,  both  eijually  described  witliin 
the  words  of  the  will,  was  intended  by  the  testator  to  take  the  estate  ;  and  the  late 
cases  of  Doe  d.  Morgan  v.  Morgan,  and  Doe  d.  Gord  v.  Needs,  both  in  this  court,  are 
to  the  same  effect.  So,  in  the  case  of  Jones  v.  Newman,  according  to  tlie  view  the  court 
took  of  the  facts,  the  case  may  be  referred  to  the  same  principles  as  the  former.  The 
court  seems  to  have  thought  the  proof  eciuivalent  only  to  proof  of  there  being  two  J. 
C.'s,  strangers  to  each  other,  and  then  the  decision  was  right,  it  being  a  mere  case  of 
what  Lord  Bacon  calls  equivocation.  The  cases  of  Price  ■?;.  Page,  Still  v.  Hoste,  and 
Careless  v.  Careless,  do  not  materially  vary  in  princii)le  from  those  last  cited.  They 
differ,  indeed,  in  this,  that  the  equivalent  description  is  not  entirely  accurate,  but  they 
agree  in  its  being  (althougli  inaccurate)  e([ually  applicable  to  each  claimant ;  and  they 
all  concur  in  this,  that  the  inaccurate  part  of  the  description  is  either,  as  in  Price  v. 
Page,  a  mere  blank,  or,  as  in  the  other  two  cases,  applicable  to  no  person  at  all.  These, 
therefore,  may  fairly  be  classed  also  as  cases  of  equivocation  ;  and  in  that  case,  evidence 
of  the  intention  of  the  testator  seems  to  be  receivable.  But  there  are  other  cases  not 
so  easily  explained  and  which  seem  at  variance  with  the  true  principles  of  evidence. 
In  Selwood  v.  Mildraay,  evidence  of  instructions  for  the  will  was  received.  That  case 
was  doubted  in  Miller  v.  Travers  ;  but,  perhaps,  having  been  put  by  the  Master  of  the 
Rolls  as  one  analogous  to  that  of  the  devise  of  all  a  testator's  freehold  houses  in  a  given 
place,  where  the  testator  had  only  leasehold  houses,  it  may,  as  suggested  by  Lord  Chief 
Justice  Tindal,  in  Miller  v.  Travers,  be  considered  as  being  only  a  wi-ong  application  to 
the  facts  of  a  correct  principle  of  law.  Again,  in  Hampshire  v.  Pierce,  Sir  John  Strange 
admitted  declarations  of  the  intentions  of  the  testatrix  to  be  given  in  evidence,  to  show 
that  by  the  words,  'the  four  children  of  my  niece  Banifield,'  she  meant  the  four  chil- 
dren by  the  second  marriage.  It  may  well  be  doubted  whether  this  was  right,  but  the 
decision  on  the  whole  case  was  undoubtedly  correct ;  for  the  circumstances  of  the  fam- 
ily, and  their  ages,  which  no  doubt  were  admissible,  were  quite  sufficient  to  have  sus- 
tained the  judgment,  without  the  questionable  evidence.  And  it  may  be  further  ob- 
served, that  the  principle  with  which  Sir  J.  Strange  is  said  to  have  commenced  his 
judgment  is  stated  in  terms  much  too  large,  and  is  so  far  inconsistent  with  later  author- 
ities. Beaumont  v.  Fell,  though  somewhat  doubtful,  can  be  reconciled  with  true  jirin- 
ciples  upon  this  ground,  that  there  was  no  such  person  as  Catherine  Earnley,  and  that 
the  testator  was  accustomed  to  address  Gertrude  Yardley  by  the  name  of  Gatty.  This, 
and  other  circumstances  of  the  like  nature,  which  were  clearly  admissilile,  may  perhaps 
be  considered  to  warrant  that  decision  ;  but  there  the  evidence  of  the  testatof's  declara- 
tions, as  to  his  intention  of  providing  for  Gertrude  Yardley,  was  also  received  ;  and  the 
same  evidence  was  received  at  N'isi  Prina,  in  Thomas  v.  Thomas,  and  approved  on 
a  motion  for  a  new  trial,  by  the  dicta  of  Lord  Kenyon  and  Mr.  Justice  Lawrence.  But 
these  cases  seem  to  us  at  variance  with  the  decision  in  Miller  v.  Travel's,  which  is 
a  decision  entitled  to  great  weight.  If  evidence  of  intention  could  be  allowed  for 
the  purpose  of  showing,  that  by  Catherine  Earnley  and  Mai-y  Thomas,  the  respective 
testators  meant  Gertrude  Yardley  and  Elinor  Evans,  it  might  surely  equally  be  ad- 
duced to  prove,  that  by  the  county  of  Limerick  a  testator  meant  the  county  of  Clare. 
Yet  this  was  rejected,  and  we  think  rightlj'.  "We  are  prepared  on  this  point  (the  point 
in  judgment  in  the  case  of  Millvr  v.  Travers)  to  adhere  to  the  authority  of  that  ease. 
Upon  the  whole,  then,  we  are  of  opinion  that,  in  this  case,  there  must  be  a  new  trial. 
Where  the  description  is  partly  true  as  to  both  claimants,  and  no  case  of  equivocation 


394  LAW   OF   EVIDENCE.  [PART  II. 

§  290.  Same  subject.  From  the  above  case,  and  two  other  lead- 
ing modern  decisions,^  it  has  been  collected, ^  (1)  that  where  the 
description  in  the  will,  of  the  person  or  thiruj  intended,  is  appli- 
cable with  legal  certainty  to  each  of  several  subjects,  extrinsic  evi- 
dence is  admissible  to  prove  which  of  such  subjects  was  intended 
by  the  testator.  But  (2)  if  the  description  of  the  person  or  thing 
be  tvholly  inapplicable  to  the  subject  intended,  or  said  to  be  in- 
tended by  it,  evidence  is  not  admissible  to  prove  whom  or  what 
the  testator  really  intended  to  describe,  (a)     His  declarations  of 

arises,  what  is  to  be  done  is  to  determine  whether  the  description  means  the  lessor  of 
the  plaintiff  or  the  defendant.  The  description,  in  fact,  applies  yjartially  to  each,  and 
it  is  not  easy  to  see  how  the  difficulty  can  be  solved.  If  it  were  res  integra,  we  should 
be  much  disposed  to  hold  the  devise  void  for  uncertainty  ;  but  the  cases  of  Doe  v. 
Huthwaite,  Bradshaw  v.  Bradshaw,  and  others,  are  authorities  against  this  conclusion. 
If,  therefore,  by  looking  at  the  surrounding  facts  to  be  found  by  the  jur}',  the  court  can 
clearly  see,  with  the  knowledge  which  arises  from  those  facts  alone,  that  the  testator 
meant  either  the  lessor  of  the  jdaintitf  or  the  defendant,  it  may  so  decide,  and  direct  the 
jury  accordingly  ;  but  we  think  that,  for  this  purpose,  they  cannot  receive  declarations 
of  the  testator  of  what  he  intended  to  do  in  making  his  will.  If  the  evidence  does  not 
enable  the  couit  to  give  such  a  diiection  to  the  jury,  the  defendant  will  indeed  for  the 
present  succeed  ;  but  the  claim  of  the  heir-at-law  will  probably  prevail  ultimately,  on 
the  ground  that  the  devise  is  void  for  uncertainty." 

1  Miller  v.  Travers,  8  Bing.  244,  and  Doe  d.  Gord  v.  Needs,  2  M.  &  W.  129.  The 
rule  on  this  subject  was  thus  stated  by  Tindal,  C.  J.:  "  In  all  cases,  where  a  difficulty 
arises  in  applying  the  words  of  a  will  or  deed  to  the  subject-matter  of  a  devise  or  grant, 
the  difficulty  or  ambiguity,  which  is  introduced  by  the  admission  of  extrinsic  evidence, 
may  be  rebutted  or  removed  by  the  production  of  further  evidence  upon  the  same  sub- 
ject, calculated  to  explain  what  was  the  estate  or  subject-matter  really  intended  to  be 
granted  or  devised."  Miller  v.  Travers,  supra,  expressly  recognized  and  a])proved  in 
Atkinson  v.  Cummins,  9  How.  S.  C.  479.  The  same  rule  is  applied  to  the  monuments 
in  a  deed,  in  Clough  v.  Bowman,  15  N.  H.  504. 

2  By  Vice-Chancellor  Wigram,  in  his  Treatise  on  the  Interpretation  of  Wills,  pi. 
184,  188.     See  also  Gresley  on  Evid.  203. 

(a)  It  need  hardly  be  added  that  if  the  tioned  in  the  document  is  plain  and  unam- 

description  applies  with  substantial  accu-  biguous,  but  there  exist  two  or  more  things 

racy  to  only  one  person  or  thing,  evidence  or  persons  to  whom  such  description  applies 

to  show  that  the  description  was  intended  with  substantial  accuracy,  then  evidence 

to  apply  to  some  other,  will  not    be  ad-  of  declarations  of  intent  by  the  testator  or 

mitted.     Thus  if  one  devise  property  to  his  grantor  will  be  received  to  show  which  he 

"nephews  and  nieces,"  and  it  is  proved  intended,  as  well  as  evidence  of  facts  from 

that  he  has  no  nephf^ws  or  nieces  of  his  which  such  intent  may  be  inferred.     Re 

own,  but  there  are  nieces  and  nephews  of  Wolverton  Mortgaged  Estates,  L.  R.  7  Ch. 

his  wife,  evidence  will  not  be  admitted  Div.  197  ;  Moseley  v.  Martin,  37  Ala.  216  ; 

to  show  that  he  was  on  bad  terms  with  Morse  v.  Stearns,  131  Mass.  389  ;  Lovejoy 

his  wife's  nephews  and  nieces,  and  there-  v.  Lovett,  124  Id.  270  ;  Hoary.  Goulding, 

fore  probably  did  not  intend  the  gift  to  116  Id.  132  ;  Chester  Emery  Co.  v.  Luca.s, 

them.      Sherratt  v.   Mountford,    L.  R.  8  112  Id.  424  ;  Putnam  v.  Bond,  100  Id.  58  ; 

Ch.  App.   928.     So  evidence   is  inadmis-  Hall  r.  Davis,  36  N.  H.  569  ;  Morgan  v. 

sible  to  prove  that  the  grantee  named  in  Burrows,  45  Wis.  211  ;   Ganson  v.  Madi- 

the  deed  is  not  the  oTie  intended  by  the  gan,  15  Id.  144.     The  case  of  Kingsford  v. 

grantor.     Whitmore  v.  Learned,   70   Me.  Hood,  105  Mass.  495,  decides  that  when  it 

276.     Cf.  Clark  v.  Clark,  2  Lea  (Tenn.),  is  proved  that  two  ]ieople,  father  and  son, 

723  ;  Vreeland  v.  W^illiams,  32  N.  J.  Eq.  bear  the  same  name,  which  isthe  name  of  the 

734  ;  Horner  v.  Stillwell,  35  N.  J.  L.  307.  grantee  in  a  deed,  declarations  of  the  gran- 

The  following  cases  support  the  rule  as  tor  made  at  the  time  the  deed  is  drawn 

stated  in  the  text,  supra :    That  when  the  up,  as  to  which   of  the  two  he  intended 

description  of  any  person  or  thing  men-  should  be  the  gi-antee,  are  inadmissible. 


CHAP.    XV,]  ADMISSIBILITY   OP   PAROL   EVIDENCE.  395 

intention,  whether  made  before  or  after  the  making  of  the  will, 
are  alike  inadmissil)le.3  Those  made  at  the  time  of  making  the 
will,  when  admitted  at  all,  are  admitted  under  the  general  rules 
of  evidence  applicable  alike  to  all  written  instruments. 

§  291.  Declarations  in  aid  of  interpretation.  But  declarations  of 
the  testator,  proving  or  tending  to  prove  a  material  fact  collateral 
to  the  question  of  intention,  where  such  fact  would  go  in  aid  of 
the  interpretation  of  the  testator's  words,  are,  on  the  principles 
already  stated,  admissible.  These  cases,  however,  will  be  found 
to  be  those  only  in  which  the  description  in  the  will  is  unam- 
biguous  in  its  application  to  any   one  of  several  subjects.  ^  (a) 

3  Wigram  on  Wills,  pi.  104,  187  ;  Brown  v.  Saltonstall,  3  Met.  423,  426  ;  Trustees, 
&C.  V.  Peaslee,  15  N.  H.  317,  330. 

1  Wigram  on  Wills,  pi.  104,  194,  195.  This  learned  writer's  Generrd  Conclusions, 
as  the  result  of  the  whole  matter,  which  he  has  so  ably  discussed  in  the  treatise  just 
cited,  are  "  (1.)  That  the  evidence  of  material  facts  is,  in  all  cases,  admissible  in  aid 
of  the  exposition  of  a  will.  (2.)  That  the  legitimate  purposes  to  which  —  in  successicm 
—  such  evidence  is  applicable,  are  two  ;  namely,  first,  to  determine  whether  the  words 
of  the  will,  with  reference  to  the  facts,  admit  of  being  construed  in  their  primary 
sense  ;  and,  secondly,  if  the  facts  of  the  case  exclude  the  primary  meaning  of  the  words, 
to  determine  whether  the  intention  of  the  testator  is  certain  in  any  other  sense  of 
which  the  words,  with  reference  to  the  lacts,  are  capable.  And,  (3.)  That  intention 
cannot  be  averred  in  support  of  a  will,  except  in  the  special  cases,  which  are  stated 
under  the  Seventh  Proposition"  (see  supra,  §  237,  n.)  ;  namely,  cases  "where  the 
object  of  a  testator's  bounty,  or  the  subject  of  disposition  (i.  e.  the  person  or  thing  in- 
tended), is  described  in  terms  which  are  ajiplicable  indifferently  to  more  than  one 
person  or  thing."  Id.  pi.  211-214.  And  he  insists,  "  (1.)  That  the  judgment  of  a 
court,  in  expounding  a  will,  should  be  simply  declaratory  of  what  is  in  the  instrument  ; 
and,  (2. )  That  every  claimant  under  a  will  has  a  right  to  require  that  a  court  of  con- 

This  case  proceeded  upon  the  principle  that  property.    Charter  ik  Charter,  L.  Pi.  7  H.  L. 

the  father  having  contracted  for  the  land  364  ;  Re  Kilverts'  Trusts,  L.  R.  12  Eq.  183; 

and  paid  the  price,  the  m/eii^  of  the  grantor  Leonard  v.  Davenport,   58  How.   (N.  Y.) 

was  immaterial,  as  the  deed  would  pass  the  Pr.  384  ;    Dunham  v.   Averill,   45   Conn, 

land  to  the  father,  and  if  it  enured  to  the  61  ;  Colette's  Estate,  Myrick's  Prob. (Cal.) 

benefit  of  the  son,  it  must  be  by  the  intent  116.     Evidence  of  the  intention  of  the  tes- 

of  the  father,  not  the  grantor.     It  is  sub-  tator  is  also  admissible  where,  by  statute, 

mitted,  however,  that  the  intent  of  the  the  omission  of  a  child  from  the  will  of  its 

grantor  was  the  precise  point  in  issue.     If  parent  is  presumed  to  have  been  uninten- 

he  intended  the  deed  to  be  to  the  father,  the  tional.    Converse  y.  Wales,  4  Allen  (Mass.), 

land  passed  to  the  father ;  if  he  intended  512. 

the  deed  to  be  to  the  son,  then  the  land  («)  In  Kurtz  v.  Hibner,  55  111.  514,  it 

passed  to  the  son,  subject,  it  may  be,  if  the  was  held  that  where  a  testator  in  unam- 

father  paid  the  price,  to  a  trust  in  favor  of  biguous  language  devised  a  lot  in  seetion 

the  father.     To  decide  this  point  the  gran-  32  of  the  town  of  Joliet,   parol  evidence 

tor's  declarations  would  seem  to  be  admis-  was  inadmissible  to  show  that  lie  meant 

sible.     Cf.  Simpson  y.  Dix,  131  Mass.  179.  a  lot  in  section  31.       The  correctness  of 

When,   however,   the   description    applies  the  decision  is  disputed  with  a  good  deal 

with  only  partial  accuracy  to  any  of  the  of  vigor  in  a  note  to  the  case  (19  A.  L.  R. 

persons  or   property  to  which  it  is  con-  94),  by  Judge  Redfield   (see  also  note  to 

tended  that  it  does  apply,  then,  although  same  case,  8  Am.  Rep.  669),  and  defended 

the  court  may  draw  any  inferences  as  to  with  equal  vigor  by  Judge  Caton,  in  same 

the  intent  of  the  testator,  and  may  receive  volume,  p.  353,  and  followed  in  the  case  of 

parol    evidence     of    circumstances     from  Fitzpatrick  v.  Fitzpatrick.  36  Iowa,  674, — 

which  it  may  draw  such  inferences,  yet  a  case  which  seems  to  have  been  carefully 

it  cannot  receive   direct   evidence   of  his  considered,  and  is  worthy  of  perusal, 
declarations  in  regard  to  such  persons  or 


396  LAW   OP   EVIDENCE.  [PART   II. 

Thus,  where  lands  were  devised  to  John  Cluer  of  Calcot,  and 
there  were  father  and  son  of  that  name,  parol  evidence  of  the 
testator's  declarations,  that  he  intended  to  leave  them  to  the  son, 
was  held  admissible. ^  'So,  where  a  legacy  was  given  to  "the  four 
children  of  A. "  who  had  six  children,  two  by  a  first,  and  four  by 
a  second,  marriage,  parol  evidence  ot  declarations  by  the  testa- 
trix, that  she  meant  the  latter  four,  was  held  admissible. ^  So, 
where  the  devise  was,  "  to  my  granddaughter,  Mary  Thomas  of 
Llechloyd  in  Merthyr  parish,"  and  the  testator  had  a  grand- 
daughter named  Elinor  Evans  in  that  parish,  and  a  great-grand- 
daughter Mary  Thomas,  in  the  parish  of  Llangain;  parol  evidence 
of  the  testator's  declarations  at  the  time  of  making  the  will  was 
received  to  show  which  was  intended.^  So,  where  a  legacy  was 
given  to  Catherine  Earnley,  and  there  was  no  person  of  that  name, 
but  the  legacy  was  claimed  by  Gertrude  Yardley ;  parol  proof  was 
received,  that  the  testator's  voice,  when  the  scrivener  wrote  the 
will,  was  very  low,  that  he  usually  called  the  legatee  Gatty,  and 
had  declared  that  he  would  do  well  by  her  in  his  w^ill ;  and  there- 
upon the  legacy  was  awarded  to  her.°    So,  also,  where  a  devise  was 

structioti,  in  the  execution  of  its  office,  shall,  by  means  of  extrinsic  evidence,  place 
itself  in  the  situation  of  the  testator  the  meaning  of  whose  language  it  is  called  upon 
to  declare."  Id.  pi.  5,  96,  215  ;  Doe  v.  Martin,  1  N.  &  M.  524,  per  Parke,  J.  ;  s.  c. 
4  B.  &  Ad.  771  ;  Guy  v.  Sharp,  1  M.  &  K.  602,  per  Ld.  Brougham,  C.  See  also 
Boys  V.  Williams,  2  Russ.  &  M.  689,  where  parol  evidence  of  the  testator's  projierty 
and  situation  was  held  admissible  to  determine  whether  a  bequest  of  stock  was  in- 
tended as  a  specific  or  a  pecuniary  legacy.  These  rules  apply  with  equal  force  to  the 
interpretation  of  every  other  private  instrument. 

2  Jones  V.  Newman,  1  W.  Bl.  60.  See  also  Doe  v.  Beynon,  4  P.  &  D.  193  ;  Doe  v. 
Allen,  4  P.  &  D.  220.  But  wliere  the  testator  devised  to  his  "grandson  Rufus,"  and 
there  were  two  of  that  name,  the  one  legitimate,  who  lived  in  a  foreign  land,  and  whom 
he  had  seen  only  once  and  wlien  a  child,  and  the  other  illegitimate,  living  with  him, 
and  whom  he  had  brought  up  and  educated  ;  it  was  held,  that  the  words  were  legally 
applicable  only  to  the  legitimate  grandson,  and  that  jjarol  evidence  to  the  contrary  was 
not  admissible".     Doe  v.  Taylor,  1  Allen,  144  (N.  Bruns.),  Street,  J.,  dissentiente. 

8  Hamjishire  v.  Pierce,  2  Yes.  216. 

4  Thomas  v.  Thomas,  6  T.  R.  671. 

5  Beaumont  v.  Fell,  2  P.  Wms.  141.  The  propriety  of  receiving  evidence  of  the 
testator's  declarations,  in  either  of  the  two  last-cited  cases,  was,  as  we  have  just  seen 
(supra,  §  239,  n.),  strongly  questioned  by  Lord  Abinger  (in  Hiscocks  v.  Hiscocks,  5 
M.  &  W.  371),  who  thought  them  at  variance,  in  this  particular,  with  the  decision  in 
Miller  V.  Travers,  8  Bing.  244,  which,  he  observed,  was  a  deci.sion  entitled  to  great 
weight.  But  upon  the  case  of  Beaumont  v.  Fell,  it  has  been  correctly  remarked,  that 
"the  evidence,  which  is  confessedly  admissible,  would,  in  conjunction  with  the  will 
itself,  show  that  there  was  a  devise  to  Catherine  Earnley,  and  that  no  such  person  ex- 
isted, but  that  there  was  a  claimant  named  Gertrude  Yardley,  whom  the  testator  usually 
called  Gatty.  In  this  state  of  the  case,  the  question  would  be,  whether,  upon  the 
principle  of  falsa  clemanstratio  non  nocct,  the  surname  of  Earnley  being  rejected,  the 
Christian  name,  if  correct,  would  itself  be  a  sufficient  indication  of  the  devisee  ;  and 
if  so,  whether  Gatty  satisfied  that  indication.  Both  these  questions  leave  untoui'hed 
the  general  question  of  the  admissibility  of  evidence,  to  show  the  process  by  which 
Gatty  passed  into  Katty,  and  from  Katty  to  Catherine."  See  Phil.  &  Am.  on  Evid. 
p.  729,  n.  (2).  It  is  not  easy,  however,  to  perceive  why  extrinsic  evidence  of  the  tes- 
tator's declared  intentions  of  beneficence  towards  an  individual  is  not  as  admissible. 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  397 

to  "  the  second  son  of  Charles  Weld,  of  Lul worth,  Esq.,"  and  there 
was  no  person  of  that  name,  but  the  testator  had  two  relatives 
there,  bearing  the  names  of  Joseph  Weld,  and  Edward-Joseph 
Weld,  it  was  held,  upon  the  context  of  the  will,  and  upon  ex- 
trinsic evidence,  that  the  second  son  of  Joseph  Wold  was  the 
person  intended.  So,  where  a  bequest  was  to  John  Newbolt, 
second  son  of  William-Strangways  Newbolt,  Vicar  of  Somerton ; 
and  it  appeared  aliunde  that  the  name  of  the  vicar  was  William- 
Robert  Newbolt,  that  his  second  son  was  Henry-Robert,  and  that 
his  third  son  was  John-Pryce;  it  was  held  that  John-Pryce  was 
entitled  to  the  legacy.^  So,  where  the  testatrix  gave  legacies  to 
Mrs.  and  Miss  B.  of  H.,  widow  and  daughter  of  the  Rev.  Mr.  B.  ; 
upon  the  legacies  being  claimed  by  Mrs.  and  Miss.  W.,  widow 
and  daughter  of  the  late  Rev.  Mr.  W.  of  H.,  it  was  held,  that  they 
were  entitled ;  it  appearing  aliunde  that  there  were  no  persons 
literally  answering  the  description  in  the  will,  at  its  date;  but 
that  the  claimants  were  a  daughter  and  granddaughter  of  the  late 
Rev.  Mr.  B.,  with  all  of  whom  the  testatrix  had  been  intimately 
acquainted,  and  that  she  was  accustomed  to  call  the  claimant  by 
the  maiden  name  of  Mrs.  W."  The  general  principle  in  all  these 
cases  is  this,  that  if  there  be  a  mistake  in  the  name  of  the  devisee, 
but  a  right  description  of  him,  the  court  may  act  upon  such  right 
description;^  and  that  if  two  persons  equally  answer  the  same 
name  or  description,  the  court  may  determine,  from  the  rest  of 
the  will  and  the  surrounding  circumstances,  to  which  of  them  the 
will  applies.^ 

§  292.  Usage.  It  is  further  to  be  observed,  that  the  rule  under 
consideration,  which  forbids  the  admission  of  parol  evidence  to 
contradict  or  vary  a  written  contract,  is  not  infringed  by  any  evi- 

as  evidence  is,  that  lie  used  to  speak  of  him  or  address  him  as  his  son,  or  godson,  or 
adopted  child  ;  when  the  object  in  both  cases  is  to  ascertain  which  of  several  demon- 
strations is  to  be  retained  as  true,  and  which  rejected  as  false.  Now  the  evidence  of 
such  declarations,  in  Beaumont?;.  Fell,  went  to  show  that  "  Earnley"  was  to  be  rejected 
a.s  falsa  demonstrntio;  and  the  other  evidence  went  to  desic^nate  the  individual  intended 
by  the  word  "  Catherine  ;"  not  by  adding  words  to  the  will,  but  by  showing  what  the 
word  used  meant.  See  infra,  §  300  ;  Wigram  on  the  Interpretation  of  Wills,  pp.  128, 
129,  pi.  166.  See  also  Baylis  v.  Attorney-General,  2  Atk.  239  ;  Abbot  v.  Massie,  3 
Ves.  148;  Doe  d.  Oxenden  v.  Chichester,  4  Dow,  65,  93:  Duke  of  Dorset  v.  Lord 
Hawarden,  3  Curt.  80  ;  Trustees,  &c.  v.  Peaslee,  15  N.  H.  317  ;  Doe  v.  Hubbard,  15 
Q.  B.  248,  per  Ld.  Campbell. 

6  Newbolt  V.  Pryce,  14  Sim.  354.  ^  Lee  v.  Pain,  4  Hare,  251  ;  9  Jur.  247. 

8  On  the  other  hand,  if  the  name  is  right,  but  the  description  is  wrong,  the  name 
will  be  regarded  as  the  best  evidence  of  the  testator's  intention.  Thus,  where  the  tes- 
tator had  married  two  wives,  Mary  and  Caroline,  successively,  both  of  whom  survived 
him,  and  he  devised  an  estate  to  his  "dear  wife  Caroline,"  the  latter  was  held  en- 
titled to  take,  though  she  was  not  the  true  wife.  Doe  v.  Roast,  12  Jur.  99.  [Andrews 
V.  Dyer,  81  Me.  105.] 

9  Blundell  v.  Gladstone,  1  Phil.  Ch.  279,  288,  per  Patteson,  J. 


398  LAW   OP   EVIDENCE,  [PART    II. 

dence  of  known  and  established  usage  respecting  the  subject  to 
which  the  contract  relates.  To  such  usage,  as  well  as  to  the 
lex  loci,  the  parties  may  be  supposed  to  refer,  just  as  they  are  pre- 
sumed to  employ  words  in  their  usual  and  ordinary  signification; 
and  accordingly  the  rule  is  in  both  cases  the  same.  Proof  of 
usage  is  admitted,  either  to  interpret  the  meaning  of  the  lan- 
guage of  the  contract,  or  to  ascertain  the  nature  and  extent  of 
the  contract,  in  the  absence  of  express  stipulations,  and  where  the 
meaning  is  equivocal  and  obscure. ^  (a)  Thus,  upon  a  contract  for 
a  year's  service,  as  it  does  not  in  terms  bind  the  party  for  every 
day  in  the  year,  parol  evidence  is  admissible  to  show  a  usage  for 
servants  to  have  certain  holidays  for  themselves.'-^  So,  where  the 
contract  was  for  performance  as  an  actor  in  a  theatre,  for  three 
years,  at  a  certain  sum  per  week,  parol  evidence  was  held  admis- 
sible to  show  that,  according  to  uniform  theatrical  usage,  the 
actor  was  to  be  paid  only  during  the  theatrical  season;  namely, 
during  the  time  while  the  theatre  was  open  for  performance,  in 

1  2  Poth.  on  Obi.  by  Evans,  App.  No.  xvi.  p.  187;  2  Sumn.  569,  per  Story,  J.  ;  11 
Sim.  626,  per  Parke,  B.  ;  4  East,  135,  per  Ld.  Ellenborough ;  Cutter  v.  Powell,  6  T.  R. 
320  ;  Vallance  v.  Dewar,  1  Campb.  503  ;  Noble  v.  Kennoway,  2  Doug.  510  ;  Bottom- 
ley  V.  Forbes,  5  Biiig.  N.  C.  121  ;  6  Scott,  8C6  ;  Ellis  v.  Thompson,  3  M.  &  W.  41.".  ; 
post,  vol.  ii.  §§  251,  ^252,  and  notes.  The  usage  must  be  general  in  the  whole  city  or 
place,  or  among  all  persons  in  the  trade,  and  not  the  usage  of  a  particular  class  only,  or 
the  course  of  practice  in  a  particular  office  or  bank,  to  whom  or  which  the  party  is  a 
stranger.     Gabay  v.  Lloyd,  3  B.  &  C.  793. 

2  Keg.  V.  Stoke  upon  Trent,  5  Q.  B.  303. 

(a)  Thus  it  has  been  held  that  when  Robinson  v.  United  States,  13  Wall.  fU. 
the  contract  is  signed  by  one  as  broker,  it  S.)  363.  The  principle  is  that  a  usage, 
is  allowable,  to  give  evidence  of  a  custom  when  it  is  reasonably  uniform  and  well 
in  that  particular  trade  bv  which  a  broker  settled,  not  in  opposition  to  fixed  rules  ot 
who  does  not  disclose  the  name  of  his  law,  and  not  in  contradiction  of  the  ex- 
principal  is  liable  as  principal.  Fleet  v.  press  terms  of  the  contract,  is  deemed  to 
Murton  L  R  7  Q  B.  126.  So  where  form  a  part  of  the  contract  and  to  enter 
the  contract  is  signed  by  a  firm  "as  agents  into  the  intention  of  the  parties,  if  it 
to  merchants,"  evidence  is  admissible  of  a  is  well  established  and  known  to  the 
custom  of  the  trade  by  which  an  agent  parties,  for  in  such  a  case  it  must  be  sup- 
who  does  not  disclose  the  name  of  his  posed  that  their  contract  was  made  in  ret- 
principal  within  a  certiiin  time  shall  be  erence  to  it.  Newhall  r.  Appleton,  114 
liable  as  principal.  Hutchinson  v.  Tatham,  N.  Y.  143;  Walls  v.  Bailey,  49  N.  \. 
L  R  8  C  P  482.  464,  469.  When  the  contract  is  made  in 
'  So,  to  explain^the  meaning  of  the  terms  a  foreign  state,  the  custom  must  be  one 
"spoiled  lumber,"  or  "horn  chains,"  evi-  which  exists  or  is  known  in  the  place 
dence  of  the  general  usage  of  these  terms  where  the  contract  is  made.  Byrne  r. 
among  the  trade  is  admissible.  Harris  r.  Massasoit  Packing  Co.,  137  Mass.  616. 
Rathbun,  2  Abb.  (N.  Y.)  App.  Dec.  326  ;  The  usage  must  be  known  to  the  persons 
Swett  V.  Shumway,  102  Mass.  365.  So,  sought  to  be  charged  by  it,  but  that  tins 
when  the  contract  is  for  the  delivery  of  a  knowledge  is  presumed  from  the  existence 
number  of  bushels  of  wheat,  not  stating  of  the  widespread  and  established  custom 
whether  the  delivery  is  to  be  in  sacks  or  in  in  the  place  where  the  parties  are  or  do 
bulk,  evidence  is  admissible  of  a  usage  of  business.  Mooney  v.  Howard  Ins.  Co., 
the  trade  to  deliver  in  sacks,  as  this  only  138  Mass.  375. 
supplies  a  doubtful  term  of  the  contract. 


CHAP.    XV.]  ADMISSIBILITY   OP   PAROL    EVIDENCE. 


J99 


each  of  those  ycars.^  So,  where  a  shij)  is  warranted  "to  depart 
with  convoy,"  parol  evidence  is  admissible  to  show  at  what  place 
convoy  for  such  a  voyage  is  usually  taken;  and  to  that  place  the 
parties  are  presumed  to  refer.*  So,  where  one  of  the  subjects  of 
a  char|;er-party  was  "  cotton  in  bales, "  parol  evidence  of  the  mer- 
cantile use  and  meaning  of  this  term  was  held  admissible. •''' (^>) 
So,  where  a  promissory  note  or  bill  is  payable  with  grace,  parol 
evidence  of  the  known  and  established  usage  of  the  bank  at  which 
it  is  payable  is  admissible  to  show  on  what  day  the  grace  expired. ^^ 
But  though  usage  may  be  admissible  to  explain  what  is  doubtful, 
it  is  not  admissible  to  contradict  what  is  plain."  (c)     Thus,  where 

8  Grant  v.  Maddox,  15  M.  &  W.  737. 

4  Lethulier's  Case,  2  Salk.  443. 

5  Taylor  v.  Brigss,  2  C.  &  P.  525. 

6  Reiinei-  v.  Bank  of  Columbia,  9  Wheat.  581,  where  the  decisions  to  this  point  are 
reviewed  by  Mr.  Justice  Thompson. 

7  2  C.  li.  &  J.  249,  250,  per  Ld.  Lyndhurst. 


{b)  Gorrissen  v.  Perrin,  27  L.  J.  C.  P. 
29.  Where  part  of  a  memorandum  of 
sale  was  as  follows,  "Bought  150  tons 
madder,  12^,  6ms.,"  it  may  be  shown  that, 
among  dealers  in  madder,  in  such  a  con- 
tract 12:i  means  12^  cents  per  pound,  and 
expressed  the  price  of  the  madder.  Dana 
V.  Fiedler,  2  Kernan,  40  ;  Brown  v. 
Brooks,  25  Pa.  St.  210;  Allan  v.  Corn- 
stock,  17  Ga.  554  ;  Brown  v.  Byrne,  26 
Eng.  Law  &  Eq.  247  ;  3  El.  &  Bl.  703. 
And  a  similar  rule  was  applied  to  deter- 
mining the  mode  of  measuring  the  amount 
of  freight  in  a  bill  of  lading.  Russian 
Steam.  Nav.  Co.  v.  Silva,  13  C.  B.  N.  s. 
610. 

(c)  Hedden  v.  Roberts,  134  Mass. 
38  ;  Brown  v.  Foster,  113  Mass.  136  ; 
Hearn  v.  N.  E.  Marine  Ins.  Co.,  3  Clitf. 
318  ;  Schcnck  v.  Griffin,  38  N.  J.  L.  462  ; 
Spears  v.  Ward,  48  Ind.  541  ;  Martin  v. 
Union  Pacific  R.  R.  Co.,  1  Wy.  Terr.  143; 
Winn  V.  Chamberlin,  32  Vt.  318  ;  Sy- 
monds  v.  Lloyd,  6  C.  B.  N.  vS.  691  ; 
Beacon  Life  &  Fire  Assurance  Co.  v.  Gibb, 

1  Moo.  P.  C.  N.  s.  73  ;  9  Jur.  N.  s.  185 ; 
Whitmore  v.  The  South  Boston  iron  Co., 

2  Allen  (Mass.),  52.  In  a  recent  case,  in 
the  United  States  Supreme  Court,  it  is  said 
that  the  principle  is  that,  while  parol  evi- 
dence of  custom  or  usage  is  sometimes  ad- 
missible to  explain  such  terms  in  the 
contract  as  are  doubtful,  it  is  not  admis- 
sible to  contradict  what  is  plain,  or  to  add 
new  terms.  DeWitt  v.  Berry,  134  U.  S. 
312.  And  to  the  same  effect  is  Bigelow  v. 
Legg,  102  N.  Y.  654,  where  the  defen- 
dant's counsel  offered  to  show  that  a  sales 
note  was  a  mere  memorandum,  which,  ac- 


cording to  the  custom  of  brokers  and 
dealers  in  wool,  amounted  to  a  proposition 
which  might  be  accepted  or  rejected  by 
either  side,  and  which,  until  rejected  or 
accepted  by  both,  was  left  open.  This 
showing  was  objected  to,  the  objection 
sustained,  and  an  exception  taken  by  the 
defendant,  but  on  appeal  not  sustained, 
the  court  saying  that  the  terms  of  the 
note,  however  comj)rehensive,  are  of  no 
importance,  unless  the  persons  signing  it 
were  in  fact  the  brokers  or  agents  of  the 
party  for  whom  they  professed  to  act,  nor 
unless  the  contract  expressed  by  those 
terms  was  one  which  they  were  authorized 
to  make,  and  if  so,  no  usage  could  control 
the  rule  of  law  applicable  to  its  construc- 
tion. So,  where  an  insurance  company 
insured  on  a  form  of  policy  which  pro- 
vided that  no  risk  was  to  be  binding  until 
accepted  by  the  company  aud  endorsed  on 
the  policy,  and  the  plaintiff  proved  an 
oral  contract  of  insurance,  which  was  to 
last  until  the  contract  of  insurance  was 
put  iu  formal  shape  by  endorsement  on  an 
open  policy,  the  defendant  was  not  al- 
lowed to  show  a  u.sage  to  make  all  appli- 
cations in  writing,  for  such  usage,  if  it 
merely  showed  what  most  people  did,  was 
immaterial,  and  if  it  was  intended  to 
prove  that  an  oral  application  was  illegal, 
was  contrary  to  the  law,  and  therefore  in- 
admissible. Emerv  v.  Boston  Marine  Ins. 
Co.,  138  Mass.  398.  Where,  in  an  ac- 
tion against  warehousemen  for  the  non- 
delivery of  property  bailed  to  them,  the 
defence  was,  that  the  property  had  been 
fraudulently  taken  from  their  custody, 
without  any  negligence  on  their  part,  and 


400  LAW   OF   EVIDENCE.  [PART   II. 

a  policy  was  made  in  the  usual  form,  upon  the  ship,  her  tackle, 
apparel,  boats,  &c.,  evidence  of  usage,  that  the  underwriters 
never  pay  for  the  loss  of  boats  slung  upon  the  quarter,  outside 
of  the  ship,  was  held  inadmissible.  ^  So,  also,  in  a  libel  in  rem 
upon  a  bill  of  lading,  containing  the  usual  clause  "the  dangers 
of  the  seas  only  excepted, "  where  it  was  articulated  in  the  answer, 
that  there  was  an  established  usage,  in  the  trade  in  question,  that 
the  ship-owners  should  see  the  merchandise  properly  secured  and 
stowed,  and  that  this  being  done,  they  should  not  be  liable  for 
any  damages  not  occasioned  by  their  own  neglect ;  it  was  held, 
that  this  article  was  incompetent,  in  point  of  law,  to  be  admitted 
to  proof.  ^ 

8  Blackett  v.  The  Royal  Exch.  Assurance  Co.,  2  Cr.  &  J.  244.  So,  where  the  writ- 
ten contract  was  for  "prime  singed  bacon,"  and  evidence  was  offered  to  j)rove  that  by 
the  usa"e  of  the  trade,  a  certain  latitude  of  deterioration,  called  average  taint,  was  al- 
lowed to  subsist,  before  the  bacon  ceases  to  answer  the  description  of  prime  bacon,  it 
was  held  inadmissible.  Yates  v.  Pym,  6  Taunt.  446.  So,  also,  parol  evidence  has  been 
held  inadmissible  to  prove,  that  by  the  words  "glass  ware  in  casks,"  in  the  memoran- 
dum of  excepted  articles  in  a  fire  policy,  according  to  the  common  understanding  and 
usa<Te  of  insurers  and  insured,  were  meant  such  ware  in  open  casks  only.  Bend  v.  The 
Georgia  Ins-  Co.,  Sup.  Ct.  New  York,  1842,  1  N.  Y,  Leg.  Obs.  12.  But  see  Gray  v. 
Harper,  1  Story,  574  (infra,  §  295,  n.).  ,      ,        .  ,  •       ,  • 

9  The  schooner  "  Reeside,"  2  Sumn.  567.  In  this  case,  the  doctrine  on  this  subject 
-was  thus  briefly  but  energetically  expounded  and  limited  by  Mr.  Justice  Story  :  "  I 
own  myself,"  said  he,  "no  friend  to  the  almost  indiscriminate  habit,  of  late  years,  of 
settin"  up  particular  usages  or  customs,  in  almost  all  kinds  of  business  and  trade,  to  con- 
trol, vary,  or  annul  the  general  liabilities  of  parties  under  the  common  law,  as  well  as 
under  the' commercial  law.  It  has  long  appeared  to  me,  that  there  is  no  small  danger 
in  admitting  such  loose  and  inconclusive  usages  and  customs,  often  unknown  to  partic- 
ular partiesfand  always  liable  to  great  misunderstandings  and  misinterpretations  and 
abuses  to  outweigh  the  well-known  and  well-settled  principles  of  law.  And  I  rejoice 
to  find  that,  of  late  years,  the  courts  of  law,  both  in  England  and  in  America,  have 
been  disposed  to  narrow  the  limits  of  the  operation  of  such  usages  and  customs,  and  to 
discountenance  any  further  extension  of  them.  The  true  and  appropriate  office  of  a 
usa-re  or  cubtom  is,  to  interpret  the  otherwise  indeterminate  intentions  of  parties,  and 
to  ascertain  the  nature  and  extent  of  their  contracts,  arising,  not  from  express  stipula- 
tions but  from  mere  implications  and  yuesumptions,  and  acts  of  a  doubtful  or  equivo- 
cal character.  It  may  also  be  admitted  to  ascertain  the  true  meaning  of  a  particular 
word  or  of  particular' words,  in  a  given  instrument,  when  the  word  or  words  have  van- 
ous  senses  some  common,  some  qualified,  and  some  technical,  according  to  the  subject- 
matter  to 'which  they  are  applied.  But  I  apprehend  that  it  never  can  be  proper  to 
resort  to  anv  usa^^e  or  custom  to  control  or  vary  the  positive  stipulations  m  a  written 
contract  aiid  a  fortiori,  not  in  order  to  contradict  them.  An  express  contract  of  the 
parties  is  alwavs  admissible  to  supersede,  or  vary,  or  control  a  usage  or  custom  ;  for  the 
latter  may  always  be  waived  at  the  will  of  the  paities.  But  a  written  and  express  con- 
tract cannot  be  controlled,  or  varied,  or  contradicted  by  a  usage  or  custom  ;  for  that 
would  not  only  be  to  admit  pnrol  evidence  to  control,  vary,  or  contradict  written  con- 
tracts but  it  would  be  to  allow  mere  presumptions  and  implications,  properly  arising  m 
the  absence  of  any  positive  expressions  of  intention,  to  control,  vary,  or  contradict  the 
most  foi-mal  and  deliberate  written  declarations  of  the  parties."     See  also  Taylor  «;. 

the  plaintiff  did  not  claim  that  the  prop-  P.  R.  R.  Co.,   11  Cush.   (Mass.)  70,   72. 

ertv  had   in   fact  been  delivered   to  any  Had  there  been  an  actual  delivery  to  a 

person     evidence   of  the   usage   of  other  third  person  by  the  warehouseman,  qucere 

warehousemen  of  taking  receipts  from  per-  how  far  such  evidence   of  general   usage 

sons  to  whom  property  was  delivered  is  might  not  be  admissible  to  show  negli- 

inadmissible.      Lichtenhein  v.    Boston   &  gence.     lb. 


CHAP.    XV.j  ADMISSIBILITY    OF    PAROL    EVIDENCE.  401 

§  203.  Usage  in  cases  of  statutes,  charters,  and  deeds.  The  rea- 
sons which  warrant  the  admission  of  evidence  of  usage  in  any 
case,  apply  equally,  whether  it  be  required  to  aid  the  interpreta- 
tion of  a  statute.,  a  public  cJiarter,  or  a,  private  deed;  and  whether 
the  usage  be  still  existing  or  not,  if  it  were  contemporaneous  with 
the  instrument.^  And  where  the  language  of  a  deed  is  doubtful 
in  the  desa-iption  of  the  land  convened,  parol  evidence  of  the  prac- 
tical interpretation,  by  the  acts  of  the  parties,  is  admissible  to 
remove  the  doubt. ^  So,  evidence  of  former  transactions  between 
the  same  parties  has  been  held  admissible  to  explain  the  meaning 
of  terms  in  a  written  contract  respecting  subsequent  transactions 
of  the  same  character.  ^ 

§  294.  To  annex  incidents.  Upon  the  same  principle,  parol 
evidence  of  usage  or  custom  is  admissible  "  to  annex  incidents, "  as 
it  is  termed  ;  that  is,  to  show  what  things  are  customarily  treated 
as  incidental  and  accessorial  to  the  principal  thing,  which  is  the 
subject  of  the  contract,  or  to  which  the  instrument  relates.  Thus, 
it  may  be  shown  by  parol  that  a  heriot  is  due  by  custom,  on  the  death 
of  a  tenant  for  life,  though  it  is  not  expressed  in  the  leasc.^  So, 
a  lessee  by  a  deed  may  show  that,  by  the  custom  of  the  country, 
he  is  entitled  to  an  away-going  crop,  though  no  such  right  is 
reserved  in  the  deed.^  (a)  So,  in  an  action  for  the  price  of  tobacco 

Briggs,  2  C.  &  P.  525  ;  Smith  v.  Wilson,  3  B.  &  Ad.  728  ;  2  Stark.  Evid.  565  ;  Parle 
on  Ins.  c.  2,  pp.  30-GO; post,  vol.  ii.  [7th  ed.]  §  251 ;  Hone  v.  Mutual  Safety  Ins.  Co., 
1  Sandf.  S.  0.  137. 

1  Withnell  v.  Gartham,  6  T.  R.  388;  Stammers  v.  Dixon,  7  East,  200  ;  Wadley  v. 
Bayliss,  5  Taunt.  752  ;  2  Inst.  282  ;  Stradling  v.  Morgan,  Plowd.  205,  ad.  calc;  Hey- 
don's  Case,  3  Co.  7  ;  Wells  v.  Porter,  2  Bing.  N.  C.  729,  per  Tindal,  C.  J.  ;  Duke  of 
Devonshire  v.  Lodge,  7  B.  &  C.  36,  39,  40  ;  Chad  v.  Tilsed,  2  Brod.  &  Bing.  403  ; 
Attorney-General  v.  Boston,  9  Jur.  838  ;  s.  c.  2  Eq.  Rep.  107  ;  Farrar  v.  Stackpole,  6 
Greenl."l54;  Meriara  u.  Harsen,  2  Barb.  Ch.  232. 

2  Stone  V.  Clark,  1  Mctcalf,  378  ;  Livingston  v.  Tenbroeck,  16  Johns.  14,  22,  23  ; 
Cooke  V.  Booth,  Cowp.  819.  This  last  case  has  been  repeatedly  disapproved  o(,  and 
may  be  considered  as  overruled  ;  not,  however,  in  the  principle  it  asserts,  but  in  the 
application  of  the  principle  to  that  case.  See  Phil.  &  Am.  on  Evid.  747,  n.  (1)  ;  1 
Siigd.  Vend.  (6th  ed.)  210  [255]  ;  Cambridge  v.  Lexington,  17  Pick.  222  ;  Choate  v. 
Burnham,  7  Pick.  274  ;  Allen  v.  Kingsbury,  16  Pick.  239  ;  4  Cruise's  Dig.  tit.  32, 
c.  20,  §  23,  n.  (Greenleaf's  ed.)  [2nd  ed.  1857,  vol  ii.  p.  598,  and  n.]. 

3  Bourne  v.  Gatliff,  11  CI.  &  Fin.  45,  69,  70. 
*  White  V.  Saver,  Palm.  211. 

^  Wigglesworth  v.  Dalli.son,  1  Doug.  201  ;  1  Smith's  Lead.  Cas.  300  ;  1  Bligh,  287  ; 
Senior  v.  Armytage,  Holt's  N.  P.  Cas.  197;  Hutton  v.  Warren,  1  M.  &  W.  466. 

(a)  And  though  there  is  no  exception  the  latter,  evidence  was  admissible  of  a 
in  the  deed,  it  may  be  shown  by  parol  certain  custom  among  foundrymen  to  al- 
that  the  growing  crops  were  reserved,  low  for  delays  in  changing  ])atterns,  this 
Merrill  v.  Blodgett,  34  Vt.  480  ;  Backen-  evidence  meeting  the  delence  that  the 
stoss  V.  Stabler,  33  Pa.  St.  251  ;  Harbold  non-delivery  of  the  castings  according  to 
V.  Kuster,  44  I'a.  St.  392.  It  has  been  contract  was  caused  by  the  delay  occa- 
held  in  a  case  where  one  contracted  to  sioned  by  alterations  in  the  patterns  pro- 
furnish  iron  casting.s  at  a  certain  day  to  vided.  Florence  Machine  Co.  v.  Daggett, 
another,  the  patterns  to  be  furnished  by  135  Ma.ss.  582. 

VOL.   I. —  26 


402  LAW    OF    EVIDENCE.  [PART    II. 

sold,  evidence  was  held  admissible  to  show  that,  by  the  usage  of 
the  trade,  all  sales  were  by  sample,  though  not  so  expressed  in  the 
bought  and  sold  notes.  ^  This  evidence  is  admitted  on  the  prin- 
ciple, that  the  parties  did  not  intend  to  express  in  writing  the 
whole  of  the  contract  by  which  they  were  to  be  bound,  but  only 
to  make  their  contract  with  reference  to  the  known  and  estab- 
lished usages  and  customs  relating  to  the  subject-matter.  But, 
in  all  cases  of  this  sort,  the  rule  for  admitting  the  evidence  of 
usage  or  custom  must  be  taken  with  this  qualification,  that  the 
evidence  be  not  repugnant  to,  or  inconsistent  with,  the  contract ; 
for  otherwise  it  would  not  go  to  interpret  and  explain,  but  to  con- 
tradict, that  which  is  written."^  This  rule  does  not  add  new  terms 
to  the  contract,  which,  as  has  already  been  shown, ^  cannot  be  done ; 
but  it  shows  the  full  extent  and  meaning  of  those  which  are  con- 
tained in  the  instrument. 

§  295.  Usage  to  explain  particular  words.  But,  in  resorting  to 
usage  for  the  meaning  of  particular  words  in  a  contract,  a  distinc- 
tion is  to  be  observed  between  local  and  technical  words,  and  other 
words,  (a)  In  regard  to  words  which  are  purely  technical,  or 
local,  that  is,  words  which  are  not  of  universal  use,  but  are  fa- 
miliarly known  and  employed,  either  in  a  particular  district,  or 
in  a  particular  science  or  trade,  parol  evidence  is  always  receiva- 
ble, to  define  and  explain  their  meaning  among  those  who  use 
them.  And  the  principle  and  practice  are  the  same  in  regard  to 
words  which  have  two  meanings,  the  one  common  and  universal, 
and  the  other  technical,  peculiar,  or  local ;  parol  evidence  being 
admissible  of  facts  tending  to  show  that  the  words  were  used  in 
the  latter  sense,  and  to  ascertain  their  technical  or  local  mean- 
ing. The  same  principle  is  also  applied  in  regard  to  words  and 
phrases  used  in  a  peculiar  sense  by  members  of  a  particular  reli- 
gious sect.i     But  beyond  this  the  principle  does  not  extend.     If, 

8  Syersv.  Jonas,  2  Exch.  111. 

4  Yeats  V.  Pirn,  Holt's  N.  P.  Cas.  95  ;  Holding  v.  Pigott,  7  Bmg.  465,  474  ; 
Blackett  v.  The  Royal  Exch.  Assur.  Co.,  2  C.  &  J.  244  ;  Caine  v.  Horsefall,  2  C.  & 
K.  349. 

5  Supra,  §  281.  ^  „  .       j    •    ^v  «• 
1  The  dootrine  on  this  subjeot  has  recently  been  very  fully  reviewed,  m  the  case  ot 

Lady  Hewley's  charities.     This  lady,  who  was  a  Nonconformist,  in  the  year  1704,  con- 

(n)  So  it  has  been  held  that  evidence  evidence  was  admissible  of  the  meaning 

is  admissible  of  the  usage  by  which  the  of  technical  words  and  phrases  in  the  siib- 

iunk  trade  understands  "  old  metals "  to  scription-book    business    whereby   parties 

include  old  rubber  and  old  nails  and  rags,  subscribing  for  books,  contract  to  purchase 

and  all  articles  used  in  the  manufacture  them   under   certain    terms   and  stipuk,- 

of  paper.     Mooney  v.   Howard  Ins.   Co.,  tions.     Newhall   v.  Appleton,  114   N.  Y. 

138  Mass.  375.     So  it  has  been  held  that  143. 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  403 

therefore  a  contract  is  made  in  ordinary  and  popular  language, 
to  which  no  local  or  technical  and  peculiar  meaning  is  attached, 

veyed  certain  estates  by  deeds,  in  trust,  for  the  benefit  of  "poor  and  godly  preachers  of 
Christ's  Holy  Gospt'l,"  and  their  widows,  and  "  for  tlie  encouraging  and  promoting  of 
the  preaching  of  Christ's  Holy  Gospel,"  &c.  ;  with  the  usual  provision  for  ))ri'serving  a 
perpetual  succession  of  trustees.  Afterwards,  in  1707,  by  other  deeds  to  thn  same  trus- 
tees, she  made  provision  for  the  erection  and  support  of  a  hospital  or  almshouse,  for  cer- 
tain descriptions  of  poor  persons,  ordaining  rules  for  the  government  of  the  house,  and 
apjwinting  the  trustees  as  the  visitors,  &c.  ;  and  disposing  of  the  surjilus  funds  as  in  the 
deeds  of  1704.  The  rules  permitted  the  admission  of  none  but  such  as  were  poor  and 
piously  (iisjiosed,  and  of  the  Protestant  religion,  and  were  able  to  repeat  the  Lord's 
Prayer,  the  Creed,  and  the  Ten  Connuandinents,  and  Mr.  Edward  Bowles's  Catechism. 
It  was  alleged  that  Lady  Hevvley,  and  all  the  trustees,  whose  religious  o[)inions  could 
be  ascertained,  believed  in  the  doctrine  of  the  Trinity,  the  Atonement,  and  Original 
Sin.  In  the  course  of  time,  however,  the  estates  became  vested  in  trustees,  the  majority 
of  whom,  though  calling  themselves  Presbyterians,  professed  Unitarian  opinions,  and 
the  funds  had  for  some  years  been  applicid,  to  a  considerable  extent,  for  the  support  of  a 
seminary,  and  for  tlie  benefit  of  poor  preachers  of  that  denomination.  When  the  char- 
ity was  founded,  the  Stat.  9  &  10  W.  111.  c.  32,  against  blasphemy,  was  in  force,  by 
which  those  persons  who  by  preaching  denied  the  doctrine  of  the  Trinity  were  liable  to 
severe  penalties.  The  object  of  the  suit  was,  in  effect,  to  take  this  trust  out  of  the 
hands  of  the  Unitarians,  and  to  obtain  a  declaration,  that  it  should  Ije  managed  and 
applied  by  and  for  none  but  Orthodox  Dissenters  ;  and  the  controversy  turned  chieMy 
on  the  question,  whether  certain  evidence  was  admissible,  which  was  offered  to  show 
what  sort  of  persons  were  intended,  in  the  deed  of  1704,  by  "godly  preaciiers  of  Cluist's 
Holy  Gospel,"  &c.  This  evidence,  in  addition  to  the  deed  of  1707,  consisted  principally 
of  the  will  of  Lady  Hewley,  the  sermon  of  Dr.  Coulton,  one  of  the  trustees,  which  was 
preached  at  her  funeral,  and  the  will  of  Sir  John  Hewley,  her  husband  ;  all  containing 
passages  showing  that  she  and  the  triwtees  were  Presbyterians,  believing  in  the  Trin- 
ity, the  Atonement,  and  Original  Sin  ;  together  with  the  depositions  of  persons  conver- 
sant with  the  history  and  language  of  the  times  when  the  deeds  were  executed,  defining 
the  meaning  then  commonly  attached  to  tiie  words  in  question,  by  per.sons  of  the 
donor's  faith  ;  and  it  was  argued  that  the  persons  whom  she  intended  to  designate  as 
beneficiaries  could  have  been  only  those  of  her  own  faith.  The  Vice-Chancellor  ad- 
mitted this  evidence,  and  decreed  that  preachers  of  the  Unitarian  doctrine  and  their 
widows  were  not  entitled  to  the  benefit  of  this  charity,  and  he  ordered  that  the  existing 
trustees  should  be  removed  and  others  appointed,  and  that  the  charity  should  in  future 
be  applied  accordingly.  This  decree  Lord  Ch.  Lyndhurst,  assisted  by  Patteson,  J.,  and 
Alderson,  B.,  afterwards  affirmed.  An  appeal  being  taken  from  the  judgment  of  Lord 
Lyndhurst  to  the  House  of  Lords,  the  House,  after  taking  the  opinions  of  the  common- 
law  judges,  upon  certain  questions  proposed  to  them,  dismissed  the  appeal.  Thi;  first 
and  principal  of  these  questions  was,  whether  the  e.^trinsic  evidence  adduced,  or  what 
part  of  it,  was  admissible  for  the  purpose  of  determining  who  were  entitled  under  the 
terms  "godly  preachers  of  Christ's  Holy  Gospel,"  "godly  persons,"  and  the  other 
descriptions  contained  in  the  deeds  of  1704  and  1707,  to  the  benefit  of  Lady  Hewley's 
bounty.  The  other  questions,  which  were  five  in  number,  were  framed  to  ascertain,  if 
such  evidence  should  be  deemed  admissible,  what  descriptions  of  persons  were,  and 
what  were  not,  the  proper  objects  of  the  trusts.  Of  the  seven  learned  judges  who 
answered  those  ipiestions,  six  were  of  opinion,  but  on  various  grounds,  that  Unitarians 
were  excluded.  Maule,  J.,  was  of  opinion,  that  none  of  the  evidence  offered  was  ad- 
missible ;  and  that  the  religious  opinions  of  the  founder  of  a  charity,  even  if  certainly 
known,  could  have  no  legal  effect  in  the  interpretation  of  an  instrument  in  which  no 
reference  is  made  to  his  own  religious  opinions  or  belief.  Erskine,  J.,  was  also  of  ojiinion 
that  none  of  the  evidence  was  admissible  for  the  purpose  for  which  it  was  offered  ; 
but  that  the  sense  of  the  words  in  question  might  be  ascertained  from  contemporaneous 
writings,  and  the  history  of  that  day ;  and  that  from  these  sources,  alri>ady  o])en  to  the 
House,  it  was  easy  to  collect,  that  the  words  were  applicable  to  none  but  Trinitarian 
Dissenters.  Coleridge,  J.,  and  Gurnej%  B.,  were  of  opinion,  tliat  the  evidence  was 
admissible  to  show  the  opinions  of  those  with  wliom  the  founder  lived  in  most  con- 
fidence, and  to  what  sect  she  in  fact  belonged  ;  and  tiiat  the  jiliraseoiogy  of  that  party 
might  be  ascertained  from  other  sources.  Williams,  J.,  tho.ight  that  the  words  em- 
ployed were  so  indefinite  and  ambiguous,  that  she  must  be  presumed  to  have  used  them 


404  LAW    OF    EVIDENCE.  [PART    II. 

parol  evidence,  it  seems,  is  not  admissible  to  show  that,  in  that 

in  a  limited  sense  ;  and  that  tliis  sense  might  be  ascertained  from  her  opinions  ;  for 
which  iiurpose  the  evidence  was  admissible.  Parke,  B.,  and  Tindal,  C.  J.,  were  of  opinion, 
that,  though  it  might  well  be  shown,  by  competent  evidence,  tiiat  the  words  employed 
had  a  peculiar  meaning  at  the  time  they  were  used,  and  what  was  that  meaning  ;  and 
that  the  deeds  were  to  be  read  by  substituting  the  equivalent  exi)ressions,  thus  ascer- 
tained, instead  of  those  written  in  the  deeds  ;  yet,  that  evidence  of  her  own  i-eligious 
opinions  was  not  admissible  to  limit  or  control  the  meaning  of  the  words.  Upon  this 
occasion,  the  general  doctrine  of  the  law  was  stated  by  Mr.  Baron  Paike,  in  the  follow- 
ing terms  :  "I  apprehend  that  there  are  two  descrijitious  of  evidence,  which  are  clearly 
admissible,  in  every  case,  for  the  purpose  of  enabling  a  coiiit  to  construe  any  written 
instrument,  and  to  apply  it  practically.  In  the  first  place,  there  is  no  doubt,  that  not 
only  where  the  language  of  the  instrument  is  such  as  the  court  does  not  understand, 
it  is  competent  to  receive  evidence  of  the  proper  meaning  of  that  language,  as  when  it 
is  written  in  a  foreign  tongue  ;  but  it  is  also  competent  where  technical  words  or  pecu- 
liar terms,  or,  indeed,  any  expressions,  are  used,  which,  at  the  time  the  instrument  was 
written,  had  ac([uired  any  appropriate  meaning,  either  generally  or  by  local  usage,  or 
amongst  particular  classes.  This  description  of  evidence  is  admissible  in  order  to  ena- 
ble the  court  to  understand  the  meaning  of  the  words  contained  in  the  instrument  itself, 
by  themselves,  and  without  reference  to  the  extriu.sic  facts  on  which  the  instrument  is 
intended  to  operate.  For  the  purpose  of  applying  the  instrument  to  the  facts,  and  de- 
termining what  passes  by  it,  and  who  take  an  interest  under  it,  a  second  description  of 
evidence  is  admissible,  namely,  every  material  fact  that  will  enable  the  court  to  iden- 
tify the  person  or  thing  mentioned  in  the  instrument,  and  to  place  the  court,  whose 
province  it  is  to  declare  the  meaidng  of  the  words  of  the  instrument,  as  near  as  may  be, 
in  the  situation  of  the  parties  to  it.  From  the  context  of  the  instrument,  and  from 
these  two  descriptions  of  evidence,  with  such  circumstances  as  by  law  the  court,  without 
evidence,  may  of  itself  notice,  it  is  its  duty  to  construe  and  apply  the  words  of  that 
instrument ;  and  no  extrinsic  evidence  of  the  intention  of  the  party  to  the  deed,  from 
his  declarations,  whether  at  the  time  of  his  executing  the  instrument,  or  before  or  after 
that  time,  is  admissible  ;  the  duty  of  the  court  being  to  declaie  the  meaning  of  what  is 
written  in  the  instrument,  not  of  what  was  intended  to  have  been  written."  Lord  Ch. 
J.  Tindal  expounded  the  same  doctrine  as  follows:  "  The  general  rule  I  take  to  be,  that 
where  the  words  of  any  written  instrument  are  free  from  ambiguity  in  themselves,  and 
where  external  circumstances  do  not  create  anj^  doubt  or  ditficulty  as  to  the  proper 
application  of  those  words  to  claimants  under  the  instrument,  or  the  subject-matter  to 
which  the  instrument  relates,  such  instrument  is  always  to  be  construed  according  to 
the  strict,  plain,  common  meaning  of  the  words  themselves  ;  and  that,  in  such  case,  evi- 
dence dehors  the  instrument,  for  the  purpose  of  explaining  it  according  to  the  surmised 
or  alleged  intention  of  the  parties  to  the  instrument,  is  utterly  inadmissible.  If  it  were 
otherwise,  no  lawyer  would  be  safe  in  advising  upon  the  construction  of  a  written  in- 
strument, nor  any  partj'  in  taking  under  it ;  for  the  ablest  advice  might  be  controlled, 
and  the  clearest  title  undermined,  if,  at  some  future  period,  parol  evidence  of  the  par- 
ticular meaning  which  the  party  affixed  to  his  M'ords,  or  of  his  secret  intention  in  mak- 
ing the  instrument,  or  of  the  objects  he  meant  to  take  benefit  under  it,  might  be  set 
up  to  contradict  or  vary  the  plain  language  of  the  instrument  itself.  The  true  inter- 
pretation, however,  of  every  instiument  Vicing  manifestly  that  which  will  make  the  in- 
strument speak  the  intention  of  the  party  at  the  time  it  was  made,  it  has  always  been 
considered  as  an  exception,  or,  perhaps,  to  speak  more  precisely,  not  so  much  an  excep- 
tion from,  as  a  corollary  to,  the  general  rule  above  stated,  that,  where  any  doubt  arises 
upon  the  true  sense  and  meaning  of  the  words  themselves,  or  any  difticulty  as  to  their 
application  under  the  surrounding  circumstances,  the  sense  and  meaning  of  the  language 
may  be  investigated  and  a.scertaiued  by  evidence  dehors  the  instrument  itself  ;  for  both 
reason  and  common  sense  agi-ee,  that  by  no  other  means  can  the  language  of  the  instru- 
ment be  made  to  speak  the  real  mind  of  the  party.  Such  investigation  does,  of  neces- 
sity, take  place  in  the  interpretation  of  instruments  written  in  a  foreign  language  ;  in 
the  case  of  ancient  instruments  where,  by  the  lapse  of  time  and  change  of  manners,  the 
words  have  acquired,  in  the  present  age,  a  different  meaning  from  that  which  they  bore 
when  originally  employed  ;  in  cases  where  terms  of  art  or  science  occur  ;  in  mercantile 
contracts,  which,  in  many  instances,  use  a  peculiar  language,  emjiloycd  by  those  only 
who  are  conversant  in  trade  and  commerce  ;  and  in  other  instances  in  which  the  words, 
besides  their  general  common  meaning,  have  acquired,  by  custom  or  otherwise,  a  well- 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  405 

particular  case,  the  words  were  used  in  any  other  than  their 
ordinary  and  popular  sense. ^ 

known  peculiar,  idiomatic  meaning,  in  the  particular  country  in  wliich  the  party  using 
them  was  dwelling,  or  iu  the  iiarticular  .society  of  wiiich  he  formed  a  member,  and  in 
which  he  passed  his  life.  In  all  these  cases,  evidence  is  admitted  to  e.\i>ound  the  real 
meaniu"  of  the  language  used  in  the  in.strumeiit,  in  order  to  enable  the  court,  or  judge, 
to  const'rue  the  instrument,  and  to  carry  such  real  meaning  into  ellect.  Hut,  whilst 
evidence  is  admissible,  in  these  instances,  lor  the  ])urpose  of  making  the  written  instru- 
ment speak  for  itself,  which,  without  such  evidence,  would  be  either  a  dead  letter,  or 
would  use  a  doubtful  tongue,  or  convey  a  false  impression  of  the  meaning  of  the  party, 
I  conceive  the  exception  to  be  strictly  limited  to  cases  of  the  description  above  given, 
and  to  evidence  of  the  nature  above  detailed  ;  and  that  in  no  case  whatever  is  it  per- 
mitted to  e.xplain  the  language  of  a  deed  by  evidence  of  the  private  views,  the  secret 
intentions,  or  the  known  pi'inciples  of  the  i)arty  to  the  instrument,  whether  religious, 
political,  or  otherwise,  anv  more  than  by  express  parol  declarations  made  by  the  party 
himself,  which  are  universally  excluded  ;  for  the  admitting  of  such  evidence  would  let 
in  all  the  uncertainty  before  adverted  to  ;  it  would  be  evidence  which,  in  most  in- 
stances, could  not  be  met  or  countervailed  by  any  of  an  opposite  bearing  or  tendency, 
and  would,  in  effect,  cause  the  secret  undeclared  intention  of  the  party  to  control  and 
predominate  over  the  oiien  intention  expressed  in  the  deed."  See  Attorney-General  v. 
Shore,  11  Sim.  592,  61t)-G27,  631,  632.  Though,  in  this  celebrated  case,  the  general 
learning  on  this  subj(!ct  has  been  thus  ably  opened  and  illustrated,  yet  the  precise  ques- 
tion, whether  the  religious  opinions  of  the"  founder  of  a  charity  can  be  received  as  legal 
exponents  of  his  intention,  in  an  instrument  otherwise  intelligible  in  its  terms,  and  in 
which  no  reference  is  made  to  his  own  opinions  or  belief,  can  hardly  be  considered  as 
definitely  settled  ;  especially  as  a  majority  of  the  learned  judges,  in  coming  to  the  conclu- 
sion in  which  they  concurred,  proceeded  on  grounds  which  rendered  the  consideration 
of  that  point  wholly  unnecessary.  The  previous  judgment  of  Lord  Ch.  Lyndhurst  in 
the  same  case,  is  reported  in  7  Sim.  309,  n.,  312-317.  See  Attorney-General  v.  Pear- 
son et  al.,  3  Meriv.  353,  409-411,  415  ;  and  afterwards  in  7  Sim.  290,  307,  308,  where 
such  evidence  was  held  admissible.  But  how  far  this  decision  is  to  be  considered  as 
shaken  by  what  fell  from  the  learned  judges,  in  the  subsequent  case  of  the  Attorney- 
General  V.  Shore,  above  stated,  remains  to  be  seen.  The  acts  of  the  founder  of  such  a 
charity  may  be  shown,  in  aid  of  the  construction  of  the  deed,  where  the  language  is 
doubtful ;  and  contemporaneous  treatises,  documents,  and  .statutes  may  be  reail,  to 
show  the  sense  in  which  any  words  or  phrases  were  commonly  used  in  that  day,  and 
thereby  to  show  the  sense  in  which  the  founder  used  them,  in  the  deed  of  donation  ; 
but  his  opinions  are  inadmissible.  Attorney-General  v.  Drummond,  1  Drury  &  War- 
ren, 353,  per  Sugden,  C.  ;  affirmed  in  Dora.  Proc.  on  Appeal,  2  Eng.  Law  &  Etp  15  ; 
14Jur.  137.  SeeAttorney-General  2?.  Glasgow  College,  10. lurist,  676.  [Ed.  In  a  case 
in  Massachusetts,  a  testator  provided  that  the  residue  of  his  property  be  given  equally 
to  the  authorized  agents  of  the  Home  and  Foreign  Missionary  Societies,  to  aid  in  propa- 
gating the  Holy  Religion  of  Jesus  Christ.  It  was  a  ([uestion  whether  the  legatees  could 
be  identified,  and  with  the  view  to  this,  evidence  was  offered  of  the  testator's  religious 
oi)inions  for  the  purpose  either  of  identifying  the  societies  which  were  meant  to  be  lega- 
tees, or  to  show  what  was  meant  by  the  Holy  Religion  of  Jesus  (Christ.  No  society  ex- 
isted which  exactly  corresponded  to  the  description  ;  but  there  were  two  which 
claimed  the  be(piests,  —  the  American  Board  of  Missionaries  for  Foreign  Missions,  and 
the  Massachusetts  Home  Missionary  Society.  The  court  held  that  while  the  private 
religious  opinions  of  the  testator  were  not  admissible  in  evidence,  evidence  of  his  public 
religious  acts  and  association  with  a  particular  church,  were  admissible  as  well  as  the 
names  he  used  to  call  the  missionary  societies,  or  by  which  they  were  usually  called  and 
known  iu  the  religious  society  with  which  he  worshipped.  And,  furthermore,  it  was 
competent  to  show  the  interest  taken  by  him  in  any  particular  missionary  contributions 
that  he  made  for  missionary  purposes.  In  this  case,  the  case  of  Lady  Hewley's  Chari- 
ties was  considered  by  the  court,  and  it  was  stated  to  have  decided  that  the  religious 
opinions  of  Lady  Hewley  were  admissible  to  show  her  connection  with  the  religious 
denomination,  the  members  of  which  used  the  words  in  question  in  the  will  in  a  re- 
stricted sense.      Hinckley  v.  Thatcher,  139  Mass.  477.] 

2  2  Stark.  Evid.  566  ;  supra,  §§  277,  280.     Rut  see  CJrny  v.  Harper,  1  Story,  .^74, 
where  two  booksellers  having  contracted  for  the  sale  and  purchase  of  a  certain  work  at 


406  LAW   OP   EVIDENCE.  [PART   II. 

§  295  a.  Principle  of  admission.  It  is  thus  apparent,  as  was 
remarked  at  tlie  outset,  that  in  all  the  cases  in  which  parol  evi- 
dence has  been  admitted  in  exposition  of  that  which  is  written, 
the  principle  of  admission  is,  that  the  court  may  be  placed,  in 
regard  to  the  surrounding  circumstances,  as  nearly  as  possible  in 
the  situation  of  the  party  whose  written  language  is  to  be  inter- 
preted;  the  question  being,  What  did  the  person,  thus  circum- 
stanced, mean  by  the  language  he  has  employed  ?  (a) 

§  296.  Parol  evidence  to  rebut  an  equity.  There  is  another 
class  of  cases,  in  which  parol  evidence  is  allowed  by  courts  of 
equity  to  affect  the  operation  of  a  writing,  though  the  writing  on 
its  face  is  free  from  ambiguity,  which  is  yet  considered  as  no 
infringement  of  the  general  rule ;  namely,  where  the  evidence  is 
offered  to  rehut  an  equity.  The  meaning  of  this  is,  that  where 
a  certain  presumption  would,  in  general,  be  deduced  from  the 
nature  of  an  act,  such  presumption  may  be  repelled  by  extrinsic 
evidence,  showing  the  intention  to  be  otherwise.  ^( J)  The  sim- 
plest instance  of  this  occurs,  when  two  legacies,  of  which  the 
sums  and  the  expressed  motives  exactly  coincide,  are  presumed 
not  to  have  been  intended  as  cumulative.  In  such  case,  to  rebut 
the  presumption  which  makes  one  of  these  legacies  inoperative, 

"  cost,"  parol  evidence  of  conversations  between  them  at  the  time  of  making  the  con- 
tract was  held  admissible  to  show  what  sense  they  attached  to  that  term.  See  also 
Selden  v.  Williams,  9  Watts,  9  ;  Kemble  v.  Lull,  3  McLean,  272. 

1  2  Poth.  on  Obi.  by  Evans,  App.  No.  xvi.  p.  184  ;  Coote  v.  Boyd,  2  Bro.  Ch.  622; 
Bull.  N.  P.  297,  298  ;  Mann  v.  Mann,  1  Johns.  Ch.  231. 

(a)  Mr.  Taylor  (Ev.  §  1109)  states  the  intended,  while  the  incorrect  part  is  inap- 
rules  gived  by  Mr.  Greenleaf  in  §  290,  in  plicable  to  any  subject,  parol  evidence  will 
the  following  modified  form  :  First,  where,  be  admissible  to  the  same  extent  as  in 
in  a  written  instrument,  the  description  of  the  last  case,  and  the  instrument  will  be 
the  person  or  thing  intended  is  applicable  rendered  operative  by  rejecting  the  er- 
with  legal  certainty  to  each  of  several  sv.b-  roneous  statement.  Wigrara  on  Wills, 
jects,  extrinsic  evidence,  including  proof  of  67-70.  Fourthly,  if  the  description  be 
declarations  of  intention,  is  admissible  to  wholly  inapplicable  to  the  subject  in- 
establish  which  of  such  subjects  was  in-  tended,  or  said  to  be  intended  b}'  it,  evi- 
tended  by  the  author.  Wigram  on  Wills,  dence  cannot  be  received  to  prove  whom 
160.  Secondly,  if  the  description  of  the  or  what  the  author  really  intended  to  de- 
person  or  thing  be  pari.ly  applicable  and  sciibe.  Id.  1 63.  Fifthly,  if  the  language 
partly  inapplicable  to  each  of  several  sub-  of  a  written  instrument,  when  interpreted 
jects,  though  extrinsic  evidence  of  the  according  to  its  primary  meaning,  be  in- 
surrounding  circumstances  may  be  received  sensible  with  reference  to  extrinsic  cir- 
for  the  purpose  of  ascertaining  to  which  of  cumstances,  collateral  facts  may  be  resorted 
such  subjects  the  language  applies,  yet  to,  in  order  to  show  that  in  some  secou- 
e\iden(;e  of  the  author's  declarations  of  dary  sense  of  the  words,  and  in  one  in 
intention  will  be  inadmissible.  Doe  v.  which  the  author  meant  to  use  them,  the 
■  Hiscocks,  5  M.  &  W.  363.  [See  ante,  instrument  may  have  a  full  effect.  Doe  v. 
§  290,  notes.]  Thirdly,  if  the  description  Hiscocks,  .<)  M.  &  W.  363. 
be  partly  correct  and  partly  incorrect,  and  {b)  King  i;.  Ruckman,  21  N.  J.  Eq. 
the  correct  part  be  sufficient  of  itself  to  599. 
enable  the  court  to  identify  the  subject 


CHAP.    XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  407 

parol  evidence  will  be  received;  its  effect  being  not  to  show  that 
the  testator  did  not  mean  what  he  said,  but,  on  the  contrary, 
to  prove  that  he  did  mean  what  he  had  expressed.^  In  like 
manner,  parol  evidence  is  received  to  repel  the  presumption 
against  an  executor's  title  to  the  residue,  from  the  fact  that  a 
legacy  has  been  given  to  him.  So,  also,  to  repel  the  presump- 
tion, that  a  portion  is  satisfied  by  a  legacy;^  and  in  some  cases, 
that  the  portionment  of  a  legatee  was  intended  as  an  ademption 
of  the  legacy.^ 

§  296  a.  To  correct  mistake.  Courts  of  equity  also  admit  parol 
evidence  to  contradict  or  vary  a  writing,  where  it  is  founded  in 
a  mistake  of  material  facts,  and  it  would  be  unconscientious  or 
mijust  to  enforce  it  against  either  party,  according  to  its  ex- 
pressed terms.  Thus,  if  the  plaintiff  seeks  a  specific  perform- 
ance of  the  agreement,  the  defendant  may  show  that  such  a 
decree  would  be  against  equity  and  justice,  by  parol  evidence  of 
the  circumstances,  even  though  they  contradict  the  writing.  So, 
if  the  agreement  speaks,  by  mistake,  a  different  language  from 
what  the  parties  intended,  this  may  be  shown  in  a  bill  to  reform 
the  writing  and  correct  the  mistake.  In  short,  wherever  the  active 
agency  of  a  court  of  equity  is  invoked,  specifically  to  enforce  an 
agreement,  it  admits  parol  evidence  to  show  that  the  claim  is 
unjust,  although  such  evidence  contradicts  that  which  is  writ- 
ten, (a)  Whether  courts  of  equity  will  sustain  a  claim  to  reform 
a  writing,  or  to  establish  a  mistake  in  it,  by  parol  evidence,  and 
for  specific  performance  of  it  when  corrected,  in  one  and  the  same 
bill,  is  still  an  open  question.  The  English  authorities  are 
against  it;  but  in  America  their  soundness  is  strongly  ques- 
tioned.^ So,  also,  if  a  grantee  fraudulently  attempts  to  convert 
into  an  absolute  sale  that  which  was  originally  meant  to  be  a 

3  Gresley  on  Evid.  210  ;  Hurst  v.  Beach,  5  Madd.  360,  per  Sir  J.  Leach,  V.  C. 

8  5  Mad(i.  360  ;  2  Poth.  on  Obi.  by  Evans,  App.  No.  xvi.  p.  184  ;  Ellison  v.  Cook- 
son,  1  Ves.  Jr.  100  ;  Clinton  v.  Hooper,  Id.  173.  So,  to  rebut  an  implied  trust. 
Livennore  v.  Aldrich,  5  Cush.  431. 

♦  Kirk  V.  Eddowes,  8  Jur.  530.  As  the  further  pursuit  of  this  point,  as  well  as  the 
consideration  of  the  presumed  revocation  of  a  Will  by  a  subsequent  marriage  and  the 
birth  of  issue,  does  not  consist  with  the  plan  of  this  treatise,  the  reader  is  referred  to 
1  Roper  on  Legacies,  by  White,  pp.  317-353;  Gresley  on  Evid.  pp.  209-218;  6 
Ci-uise's  Dig.  tit.  38,  c.  6,  §§  45-  57,  and  notes  by  Greenleaf  [2d  ed.  (1857)  vol.  iii.  p. 
104,  and  notes]  ;  1  Jarm.  on  Wills,  c.  7,  and  notes  by  Perkins.  See  also  post,  voL  ii. 
§§  684,  685. 

1  1  Story,  Eq.  Jurisp.  §§  152-161  ;  Gresley  on  Evid.  205-209. 

(a)   Parol  evidence  of  accident,  fraud,  the  absence  of  fraud  or  mistake  of  fact, 

or  mistake,   is  admissible  in  such  cases,  parol  evidence   will   not   be   admitted   to 

Fisher  v.  Diebert,  54   Pa.  St.    460  ;    Cun-  correct  a  mistake  of  Law.     Potter  v.  Sew- 

ningham  v.  Wrenn,  23  111.  64.     But,  in  all,  54  Me.  142. 


408 


LAW   OF    EVIDENCE. 


[part  II. 


security  for  a  loan,  the  original  design  of  the  conveyance,  though 
contrary  to  the  terms  of  the  writing,  may  be  shown  by  parol.  ^  (5) 
§  297.  Ambiguities,  latent  and  patent.  Having  thus  explained 
the  nature  of  the  rule  under  consideration,  and  shown  that  it  only 
excludes  evidence  of  the  language  of  the  party,  and  not  of  the 
circumstances  in  which  he  was  placed,  or  of  collateral  facts,  it 
may  be  proper  to  consider  the  case  of  amhigultles^  both  latent 
and  patent.  The  leading  rule  on  this  subject  is  thus  given  by 
Lord  Bacon:  "Ambiguitas  verborum  latens  verificatione  supple- 
tur;  nam  quod  ex  facto  oritur  ambiguum,  verificatione  facti 
tollitur."  ^(rt)  Upon  which  he  remarks,  that,  "there  be  two 
sorts  of  ambiguities  of  words;  the  one  is  amhiguitas  patens  and 
the  other  latens.  Patens  is  that  which  appears  to  be  ambiguous 
upon  the  deed  or  instrument ;  latens  is  that  which  seemeth  cer- 
tain and  without  ambiguity,  for  anything  that  appeareth  upon  the 

2  Morris  v.  Nixon,  17  Pet.  109.     See  Jenkins  v.  Eldredge,  3  Story,  181,  284-287. 
1  Bacon's  Maxims,  Reg.  23  [25]. 


(b)  See  also  McClane  v.  White,  5 
Minn.  178  ;  Tillson  v.  Moulton,  23  111. 
648,  People  v.  Irwin,  14  (al.  428.  And 
see  ante,  §  284,  notes.  This  rule,  that 
oral  evidence  is  admissible  to  show  that 
an  instrument  assigning  or  conveying  real 
or  personal  property  in  absolute  terms 
may  be  shown  to  have  been  intended  as 
security  only,  is  now  well  established.  It 
originated  in  the  equity  courts  from  the 
efforts  of  the  equity  judges  to  prevent 
forfeitures,  to  relieve  against  frauds,  and 
to  enforce  the  equitable  maxim  "once  a 
mortgage  always  a  mortgage."  This  rule 
is  an  evident  exception  to  the  general  rule 
of  evidence  forbidding  the  contradiction 
or  explanation  of  written  instruments  by 
parol  evidence  ;  but  having  been  estab- 
lished in  chancery,  it  was  finally  applied 
in  courts  of  law  as  well.  Marsh  v.  Mc- 
Nair,  99  N.  Y.  178  ;  Newton  v.  Fay,  10 
Allen,  505  ;  Brick  v.  Brick,  98  U.  S.  514; 
Butman  v.  Howell,  144  Mass.  66;  Ree%'e 
V.  Dennett,  137  Mass.  315.  But  while 
this  exception  applies  to  conveyances  it 
does  not  apply  so  far  as  the  document  in 
question  is  in  the  nature  of  an  executory 
contract  between  the  parties.  Marsh  v, 
McNair,  99  N.  Y.  178.  It  is  moreover, 
held  in  some  States  that  tliis  equitable 
exception  cannot  be  enforced  in  courts  of 
law,  and  that  where  an  action  is  brought 
in  a  court  which  has  no  equitj'  jurisdic- 
tion, the  written  contract  of  sale  or  assign- 
ment, if  absolute  in  terms,  is  conclusive, 
and  evidence  is  not  admissible  to  show  that 
it  was  intended  as  security  only.    Grant  v. 


Frost,  80  Me.  204  ;  Philbrook  v.  Eaton, 
134  Mass.  400 ;  Pennock  v.  McCormick, 
120  Mass.  275.  But  if  the  document  in 
question  is  not  a  bill  of  sale  or  conveyance 
of  propert}',  but  merely  a  bill  of  parcels, 
[i.  c.  a  document  specifying  the  price,  the 
articles,  the  names  of  buyer  and  seller,  and 
receipt  of  payment]  this  is  in  the  nature 
of  a  receipt  and  is  open  to  exjilanation  by 
parol  evidence  like  all  other  receipts,  as 
will  be  hereafter  shown.  See  post,  §  305, 
notes  ;  Grant  v.  Frost,  80  Me.  204.  In 
cases  where  courts  have  both  law  and 
e(iuity  jurisdiction,  and  oral  evidence  is 
offered  which  is  so  distinct,  precise,  and 
strong,  that  it  would  justify  a  court  of 
equity  in  reforming  the  written  instru- 
ment, the  court  has  held  that  it  will  not 
enforce  a  separate  proceeding  for  the  re- 
formation of  the  instrument,  but  having 
itself  jurisdiction  in  the  matter  will  con- 
sider the  refoi-mation  to  have  been  had 
and  the  WTitten  instrument  varied,  altered, 
or  added  to  by  the  oral  evidence.  Mussey 
V.  Curtis,  60  Vt.  272  ;  Davis  v.  The  Lib- 
erty &  Camden  Gravel  Koad  Co.,  84  Ind. 
39.  When  the  contract  is  one  which  by  the 
statute  of  frauds  must  be  in  writing,  this 
rule  is  more  strictly  construed  and  parol 
evidence  will  not  be  admitted.  Lazear  v. 
Natl.  Union  Bank  of  Md.,  52  Md.  119. 

{a)  As,  for  instance,  where  an  agree- 
ment designates  "  G.  and  others  "  as  one 
of  the  parties,  extrinsic  evidence  is  admis- 
sible to  show  who  are  meant  by  "  G.  and 
others."  Herring  v.  Boston  Iron  Co.,  1 
Gray  (Mass.),  136. 


CHAP.    XV.]  ADMISSIBILITY   OF  PAROL   EVIDENCE.  409 

deed  or  instrument ;  Ijut  there  is  some  collateral  matter  out  of 
the  deed  that  breedeth  the  ambiguity.  Ambi/juitas  patens  is 
never  holpen  by  averment;  and  the  reason  is,  because  the  law 
will  not  couple  and  mingle  matter  of  specialty,  which  is  of  the 
higher  account,  with  matter  of  averment,  which  is  of  inferior 
account  in  law ;  for  that  were  to  make  all  deeds  hollow  and  sub- 
ject to  averments,  and  so,  in  effect,  that  to  pass  without  deed 
which  the  law  appointeth  shall  not  pass  but  by  deed.  Therefore, 
if  a  man  give  land  to  J.  D.  and  J.  S.  et  hceredibus,  and  do  not 
limit  to  whether  of  their  heirs,  it  shall  not  be  supplied  by  aver- 
ment to  whether  of  them  the  intention  was  (that)  the  inheritance 
should  bo  limited."  "But  if  it  be  amhiguitas  latens,  then  other- 
wise it  is ;  as  if  I  grant  my  manor  of  S.  to  J.  F.  and  his  heirs, 
here  appeareth  no  ambiguity  at  all.  But  if  the  truth  be,  that  I 
have  the  manors  both  of  South  S.  and  North  S.,  this  ambiguity 
is  matter  in  fact ;  and  therefore  it  shall  be  holpen  by  averment, 
whether  of  them  it  was  that  the  party  intended  should  pass. "  ^  (b) 
§  298.  Ambiguity  defined.  But  here  it  is  to  be  observed,  that 
words  cannot  be  said  to  be  ambiguous  because  they  are  unintel- 
ligible to  a  man  who  cannot  read ;  nor  is  a  written  instrument 

2  See  Bacon's  Law  Tracts,  pp.  99,  100.  And  see  Miller  v.  Travers,  8  Bing.  244  ; 
supra,  §  290  ;  Reed  v.  Prop'rs  of  Locks,  &c.,  8  How.  S.  C.  274.  Where  a  bill  was 
drawn  expressing  £200  in  the  body  in  words,  but  £245  in  figures  in  the  margin,  it  was 
held  that  the  words  in  the  body  must  be  taken  to  be  the  true  amount  to  be  paid  ;  and 
that  the  ambiguity  created  by  the  figures  in  the  margin  was  patent,  and  could  not  be 
explained  by  parol.     Saunderson  v.  Piper,  5  Bing.  N.  C.  425. 

(b)  Lathrop  v.  Blake,  3  Foster,  46.  In  previously  paid  by  him  to  the  defendant, 
Sargent  v.  Adams,  3  Gray,  72,  77,  the  in  part  performance  of  the  agreement, 
question  arose  how  far  an  agreement  in  The  defendant,  to  show  that  he  had  corn- 
writing  to  let  for  a  term  of  years  "  the  plied  with  his  obligations  under  the  agree- 
'  Adams  House,'  so  called,  situate  on  nieut,  by  tendering  a  proper  lease,  offered 
Washington  Street,  in  Boston,  and  num-  to  prove  by  parol,  that  the  original  agree- 
bered  371  on  said  Washington  Street,"  ment  was  that  the  lease  should  include 
could  be  explained  by  parol.  Tiie  de-  only  the  hotel  proper  and  not  the  stores; 
fendant  had  fitted  up  an  old  tavern  as  a  and  he  was  permitted  so  to  do.  The 
hotel,  under  the  name  of  the  "Adams  opinion  of  the  court,  by  Shaw,  C.  J., 
House,"  on  Washington  Street.  The  en-  places  the  case  among  latent  ambiguities, 
trance  to  the  hotel  was  from  said  street,  upon  the  ground,  that  the  very  general 
and  was  nunil)ored  371.  The  rest  of  the  terms  used  in  the  contract  apply  with  suf- 
ground-floor  of  the  building  was  fitted  up  ficient  legal  certainty  to  the  entire  build- 
for  stores,  which  were  numbered  from  1  ing,  including  the  stores,  and  to  the 
to  5,  Adams  House,  and  were,  at  the  time  portion  of  it  fitted  up  for  a  public  house, 
of  making  the  agreement,  severally  occu-  and  consequently  it  was  competent  to 
pied  by  different  tenants.  The  defendant  show,  by  parol,  in  which  sense  the  jiarties 
tendered,  in  pursuance  of  the  above  agree-  used  the  terms.  See  also  to  the  same 
ment,  a  lease  duly  executed,  of  the  hotel  effect,  Bainbridge  v.  Wade,  20  L.  J.  N.  s. 
known  as  the  Adams  House,  but  not  in-  Q.  B.  7  ;  Blossom  v.  Griffin,  13  N.  Y. 
eluding  the  stores,  which  the  plaintiff  re-  569  ;  Griffiths  v.  Hardcnbergh,  41  N.  Y. 
fused  to  accept,  and  subse(|uently  brought  468  ;  Bradley  v.  Wash.  &c.  Co.,  13  Pet. 
this  action   to   recover   a   sum   of  money  (U.  S.)  89. 


410  LAW   OF   EVIDENCE.  [PART   II. 

ambiguous  or  uncertain  merely  because  an  ignorant  or  uninformed 
person  may  be  unable  to  interpret  it.  It  in  amhiguous  only,  when 
found  to  he  of  uncertain  meaning  by  persons  of  competent  skill  and 
information.  Neither  is  a  judge  at  liberty  to  declare  an  instru- 
ment ambiguous,  because  he  is  ignorant  of  a  particular  fact,  art, 
or  science,  which  was  familiar  to  the  person  who  used  the  words, 
and  a  knowledge  of  which  is  therefore  necessary  to  a  right  un- 
derstanding of  the  words  he  has  used.  If  this  were  not  so,  then 
the  question,  whether  a  will  or  other  instrument  were  ambiguous 
or  uncertain,  might  depend  not  upon  the  propriety  of  the  lan- 
guage the  party  has  used,  but  upon  the  degree  of  knowledge, 
general  or  local,  which  a  particular  judge  might  happen  to  pos- 
sess ;  nay,  the  technical  accuracy  and  precision  of  a  scientific  man 
might  occasion  his  intestacy,  or  defeat  his  contract.  Hence  it 
follows  that  no  judge  is  at  liberty  to  pronounce  an  instrument 
ambiguous  or  uncertain,  until  he  has  brought  to  his  aid,  in  its 
interpretation,  all  the  lights  afforded  by  the  collateral  facts  and 
circumstances,  which,  as  we  have  shown,  may  be  proved  by 
parol.  ^ 

§  299.  Ambiguity  and  inaccuracy.  A  distinction  is  further  to 
be  observed,  between  the  ambiguity  of  language  and  its  inaccu- 
racy. "Language,"  Vice-Chancellor  Wigram  remarks,  "may  be 
inaccurate  without  being  ambiguous,  and  it  may  be  ambiguous 
although  perfectly  accurate.  If,  for  instance,  a  testator,  having 
one  leasehold  house  in  a  given  place  and  no  other  house,  were  to 
devise  his  freehold  house  there  to  A.  B.,  the  description,  though 
inaccurate,  would  occasion  no  ambiguity.  If,  however,  a  tes- 
tator were  to  devise  an  estate  to  John  Baker,  of  Dale,  the  son  of 
Thomas,  and  there  were  two  persons  to  whom  the  entire  descrip- 
tion accurately  applied,  this  description,  though  accurate,  would 
be  ambiguous.  It  is  obvious,  therefore,  that  the  whole  of  that 
class  of  cases  in  which  an  accurate  description  is  found  to  be 
sufficient  merely  by  the  rejection  of  words  of  surplusage  are  cases 
in  which  no  ambiguity  really  exists.  The  meaning  is  certain, 
notwithstanding  the  inaccuracy  of  the  testator's  language.  A 
judge,  in  such  cases,  may  hesitate  long  before  he  comes  to  a 
conclusion;  but  if  he  is  able  to  come  to  a  conclusion  at  last,  with 
no  other  assistance  than  the  light  derived  from  a  knowledge  of 
those  circumstances,  to  which  the  words  of  the  will  expressly  or 
tacitly  refer,  he  does  in  effect  declare  that  the  words  have  legal 
certainty, —  a  declaration  which,  of  course,  excludes  the  existence 

1  See  Wigram  on  tlie  Interpretation  of  Wills,  p.  174,  pi.  200,  201. 


CHAP.    XV.]  ADMISSIBILITY    OP   PAROL    EVIDENCE.  411 

of  any  anibij2;uity.  The  language  may  be  inaccurate;  but  if  the 
court  can  determine  the  meaning  of  this  inaccurate  language, 
without  any  other  guide  than  a  knowledge  of  the  simple  facts, 
upon  which  —  from  the  very  nature  of  language  in  general  —  its 
meaning  depends,  the  language,  though  inaccurate,  cannot  be 
ambiguous.  The  circumstance,  that  the  inaccuracy  is  apparent 
on  the  face  of  the  instrument,  cannot,  in  principle,  alter  the 
case. "  1  Thus,  in  the  will  of  Nollekens,  the  sculptor,  it  was 
provided,  that,  upon  his  decease,  "all  the  marble  in  the  yard, 
the  tools  in  the  shop,  bankers,  mod,  tools  for  carving,"  &c., 
should  be  the  property  of  Alex.  Goblet.  The  controversy  was 
upon  the  word  "wot?,"  which  was  a  case  of  patent  inaccuracy ; 
but  the  court,  with  no  guide  to  the  testator's  intention  but  his 
words,  and  the  knowledge  common  to  every  working  sculptor, 
decided  that  the  word  in  question  sufficiently  described  the  testa- 
tor's models;  thus  negativing  the  existence  of  any  ambiguity 
whatever.  2 

§  300.  Patent  ambiguities.  The  patent  ambiguity,  therefore, 
of  which  Lord  Bacon  speaks,  must  be  understood  to  be  that  which 
remains  uncertain  to  the  Court,  after  all  the  evidence  of  surround- 
ing circumstances  and  collateral  facts,  which  is  admissible  under 
the  rules  already  stated,  is  exhausted.  His  illustrations  of  this 
part  of  the  rule  are  not  cases  of  misdescription,  either  of  the  per- 
son or  of  the  thing  to  which  the  instrument  relates ;  but  are  cases 
in  which  the  persons  and  things  being  sufficiently  described,  the 
inte7itio7i  of  the  party  in  relation  to  them  is  ambiguously  ex- 
pressed.^ Where  this  is  the  case,  no  parol  evidence  of  expressed 
intention  can  be  admitted.  In  other  words,  and  more  generally 
speaking,  if  the  court,  placing  itself  in  the  situation  in  which  the 
testator  or  contracting  party  stood  at  the  time  of  executing  the 
instrument,  and  with  full  understanding  of  the  force  and  import 
of  the  words,  cannot  ascertain  his  meaning  and  intention  from 
the  language  of  the  instrument  thus  illustrated,  it  is  a  case  of 
incurable  and  hopeless  uncertainty,  and  the  instrument,  there- 
fore, is  so  far  inoperative  and  void.* 

1  Wigrara  on  the  Interpretation  of  Wills,  pp.  175,  176,  pi.  203,  204. 

2  Goblet  V.  Beechey,  3  Sim.  24  ;  Wigram  on  the  Interpretation  of  Wills,  pp.  179, 
185.  Parol  evidence  is  admissible  to  explain  short  and  incomplete  terms  in  a  written 
agreement,  which  per  se  are  unintelligible,  if  the  evidence  does  not  contradict  what  is 
in  writing.     Sweet  v.  Lee,  3  M.  &  G.  452  ;  Farm.  &  Mech.  Bank  r.  Day,  13  Vt.  36. 

^  Wigram  on  the  Interpretation  of  Wills,  p.  179  ;  Fish  v.  Hubbard,  21  Wend.  651. 

*  Per  Parsons,  C.  J.,  in  Worthington  v.  Hylyer,  4  Mass.  205  ;  United  States  v. 
Cantril,  4  Crancli,  167  ;  1  Jarman  on  Wills,  315  ;  1  Powell  on  Devises  (by  Jarman), 
p.  348  ;  4  Cruise's  Dig.  255,  tit.  32,  c.  20,  §  60  (Greenleafs  2d  ed.  vol.  ii.  p.  609). 
Patent  ambiguities  are  to  be  dealt  with  by  the  court  aloue.     But  where  the  meaning 


412  LAW   OF    EVIDENCE.  [PART   II. 

§  301.  False  description.  There  is  another  class  of  cases,  so 
nearly  allied  to  these  as  to  require  mention  in  this  place ;  namely, 
those  in  which,  upon  applying  the  instrument  to  its  subject-mat- 
ter, it  appears  that  in  relation  to  the  subject,  whether  person  or 
thing,  the  description  in  it  is  true  in  part,  but  not  true  in  every 
particular.  The  rule,  in  such  cases,  is  derived  from  the  maxim, 
"Falsa  demonstratio  non  nocet,  cum  de  corpore  constat."  ^  Here 
so  much  of  the  description  as  is  false  is  rejected ;  and  the  instru- 
ment will  take  effect,  if  a  sufficient  description  remains  to  ascer- 
tain its  application.  It  is  essential,  that  enough  remains  to  show 
plainly  the  intent. ^  "The  rule,"  said  Mr.  Justice  Parke, ^  "is 
clearly  settled,  that  when  there  is  a  sufficient  description  set 
forth  of  premises,  by  giving  the  particular  name  of  a  close,  or 
otherwise,  we  may  reject  a  false  demonstration ;  but  that,  if  the 
premises  be  described  in  general  terms,  and  a  particular  descrip- 
tion be  added,  the  latter  controls  the  former."  It  is  not,  how- 
ever, because  one  part  of  the  description  is  placed  first  and  the 
other  last  in  the  sentence;  but  because,  taking  the  whole  to- 
gether, that  intention  is  manifest.  For,  indeed,  "  it  is  vain  to 
imagine  one  part  before  another;  for  though  words  can  neither 
be  spoken  nor  written  at  once,  yet  the  mind  of  the  author  compre- 
hends them  at  once,  which  gives  vitam  et  modum  to  the  sen- 
tence. "  *  Therefore,  under  a  lease  of  "  all  that  part  of  Blenheim 
Park,  situate  in  the  county  of  Oxford,  now  in  the  occupation  of 
one  S.,  lying"  within  certain  specified  abuttals,  "with  all  the 
houses  thereto  belonging,  which  are  in  the  occupation  of  said  S.," 
it  was  held,  that  a  house  lying  within  the  abuttals,  though  not  in 
the  occupation  of  S.,  would  pass.*  So,  by  a  devise  of  "the  farm 
called  Trogue's  Farm,  now  in  the  occupation  of  C,"  it  was  held, 
that  the  whole  farm  passed,  though  it  was  not  all  in  C.  's  occupa- 
tion.^ Thus,  also,  where  one  devised  all  his  freehold  and  real 
estate  "  in  the  county  of  Limerick  and  in  the  city  of  Limerick  ;  " 
and  the  testator  had  no  real  estates  in  the  county  of  Limerick, 

of  an  instrument  becomes  ambiguous,  by  reason  of  extrinsic  evidence,  it  is  for  the  jury 
to  determine  it.  Smith  v.  Thompson,  18  Law  J.  C.  P.  314  ;  Doe  v.  Beviss,  Id.  128. 
See  supra,  §  2S0. 

1  6  T.  R.  676  ;  Broom's  Maxims,  p.  269  ;  Bac.  Max.  Reg.  25.  And  see  Just  Ins. 
lib.  2,  tit.  20,  §  29.  "Siquidem  in  nomine,  cognomine,  pr?enomine,  agnomine  legatarii, 
testator  erraverit,  cum  de  persona  constat,  nihilominus  valet  legatum  ;  idemque  in 
hajredibus  servatur  ;  et  recte  :  nomina  enim  signiHcandorum  hominum  gratia  reperta 
sunt  ;  (|ui  si  alio  quolibet  niodo  intellJL'antur,  nihil  interest." 

2  Doe  ly.  Hubbard,  15  Q.  B.  240,  241,  245. 

3  Doe  d.  Smith  r.  Galloway,  5  B.  &  Ad.  43,  51. 
*  Stukelev  i^.  Butler,  Hob.  171. 

5  Doe  d.  Smith  v.  Gallowav,  5  B.  &  Ad.  43. 

6  Goodtitle  v.  Southern,  1  M.  k  S.  299. 

» 


CHAP.    XV.]  ADMISSIBILITY   OP   PAROL   EVIDENCE.  413 

but  his  real  estates  consisted  of  estates  in  the  county  of  Clare, 
which  was  not  mentioned  in  the  will,  and  a  small  estate  in  the 
city  of  Limerick,  inadequate  to  meet  the  charges  in  the  will;  it 
was  held,  that  the  devisee  could  not  be  allowed  to  show,  by  parol 
evidence,  that  the  estates  in  the  county  of  Clare  were  inserted  in 
the  devise  to  him,  in  the  first  draft  of  the  will,  which  was  sent  to 
a  conveyancer,  to  make  certain  alterations,  not  affecting  those 
estates ;  that,  by  mistake,  he  erased  the  words  "  county  of  Clare  ;  " 
and  that  the  testator,  after  keeping  the  will  by  him  for  some  time, 
executed  it,  without  adverting  to  the  alteration  as  to  that  county.'^ 

7  Miller  V.  Travers,  8  Bing.  244  ;  Doe  v.  Chichester,  4  Dow,  65  ;  Doe  v.  Lyford,  4 
M.  &  S.  550.  The  opinion  of  the  court  in  Miller  v.  Travers,  by  Tindal,  C.  J.,  contains 
soniasterly  a  discussion  of  the  doctrine  in  question,  that  no  apology  seems  necessary 
for  its  insertion  entire.  After  stating  the  case  with  some  preliminary  remarks,  the 
learned  Chief  Justice  proceeded  as  follows  :  "  It  may  be  admitted  that,  in  all  cases  in 
which  a  ditiiculty  arises  in  applying  the  words  of  a  will  to  the  thing  which  is  the  sub- 
ject-matter of  the  devise,  or  to  the  person  of  the  devisee,  the  dilhculty  or  ambiguity, 
which  is  introduced  by.the  admission  of  extrinsic  evidence,  may  be  rebutted  and  re- 
moved by  the  production  of  further  evidence  upon  the  same  subject  calculated  to 
explain  what  was  the  estate  or  subject-matter  really  intended  to  be  devised,  or  who 
was  the  person  really  intended  to  take  under  the  will  ;  and  this  appears  to  us  to  be 
the  extent  of  the  maxim,  '  Ambiguitas  verborum  latens,  verificatione  suppletur.'  But 
the  cases  to  which  this  construction  applies  will  be  found  to  range  themselves  into  two 
separate  classes,  distinguishable  from  each  other,  and  to  neither  of  which  can  the  pres- 
ent case  be  referred.  The  first  class  is,  where  the  description  of  the  thing  devised,  or 
of  the  devisee,  is  clear  upon  the  face  of  the  will ;  but,  upon  the  death  of  the  testator, 
it  is  found  that  there  are  more  than  one  estate  or  sulyect-matter  of  devise,  or  more  than 
one  person,  whose  description  follows  out  and  fills  the  words  used  in  the  will.  As, 
where  the  testator  devises  his  manor  of  Dale,  and  at  his  death  it  is  found  that  he  has 
two  manors  of  that  name,  South  Dale  and  North  Dale  ;  or,  where  a  man  devises  to  his 
son  John,  and  he  has  two  sons  of  that  name.  In  each  of  these  cases  resjiectively,  ])arol 
evidence  is  admissible  to  show  which  manor  was  intended  to  pass,  and  which  son  was 
intended  to  take.  (Bac.  Max.  23  ;  Hob.  32  ;  Edward  Altham's  Case,  8  Co.  Rep.  155.) 
The  other  class  of  cases  is  that  in  which  the  descrii)tion  contained  in  the  will  of  the 
thing  intended  to  be  devised,  or  of  the  person  who  is  intended  to  take,  is  true  in  part, 
but  not  true  in  every  particular.  As,  where  an  estate  is  devised  called  A,  and  is  de- 
scribed as  in  the  occupation  of  B,  and  it  is  found,  that  though  there  is  an  estate  called 
A,  yet  the  whole  is  not  in  B's  occupation  ;  or,  where  an  estate  is  devised  to  a  person, 
whose  surname  or  Christian  name  is  mistaken  ;  or  whose  description  is  imperfect  or 
inaccurate  :  in  which  latter  class  of  cases  parol  evidence  is  admissible  to  show  what 
estate  was  intended  to  pass,  and  who  was  the  devisee  intended  to  take,  provided  there 
is  sufficient  indication  of  intention  appearing  on  tlie  face  of  the  will  to  justify  the 
application  of  the  evidence.  But  the  case  now  before  the  court  does  not  appear  to  fall 
within  either  of  these  distinctions.  There  are  no  words  in  the  will  which  contain  an 
imperfect,  or,  indeed,  any  description  whatever  of  the  estates  in  Clare.  The  present 
case  is  rather  one  in  which  the  plaintiff  does  not  endeavor  to  apply  the  descrii>tion 
contained  in  the  will  to  the  estates  in  Clare;  but,  in  order  to  make  out  such  intention, 
is  compelled  to  introduce  new  words  and  a  new  description  into  the  body  of  the  will 
itself.  The  testator  devises  all  his  estates  in  the  county  of  Limerick,  and  the  city  of 
Limerick.  There  is  nothing  ambiguous  in  this  devise  on  the  face  of  the  will.  It  is 
found,  upon  inquiry,  that  he  has  property  in  the  city  of  Limerick,  whi(-h  answers  to 
the  descrii)tion  in  the  will,  but  no  property  in  the  county.  This  extrinsic  evidence 
produces  no  ambiguity,  no  difficulty  in  the  application  of  the  words  of  his  will  to  the 
state  of  the  projjcrty,  as  it  really  exists.  The  natural  and  necessary  constniction  of 
the  will  is,  that  it  passes  the  estate  which  he  has  in  the  city  of  Limerick,  but  passes 
no  estate  in  the  county  of  Limerick,  where  the  testator  had  no  estate  to  answer  that 
description.  The  plaintiff,  hoivever,  contends,  that  he  has  a  right  to  yirove  that  the 
testator  intended  to  pass,  not  only  the  estate  in  the  city  of  Limerick,  but  an  estate  in 


414  LAW   OP   EVIDENCE.  [PART   II. 

And  so,  where  land  was  described  in  a  patent  as  lying  in  the 
county  of  M.,  and  further  described  by  reference  to  natural  monu- 

a  county  not  named  in  the  will,  namely,  the  county  of  Clare  ;  and  that  the  will  is  to 
be  read  and  construed  as  if  the  word  '  Clare  '  stood  in  the  place  of,  or  in  addition  to, 
that  of  Limerick.  But  this,  it  is  manifest,  is  not  merely  calling  in  the  aid  of  extrinsic 
evidence  to  ai)|)ly  the  intention  of  the  testator,  as  it  is  to  be  collected  from  the  will 
itself,  to  the  existing  state  of  his  proj)erty  :  it  is  calling  in  extrinsic  evidence  to  intro- 
duce into  the  will  an  intention  not  apparent  upon  the  face  of  the  will .  It  is  not  simply 
removing  a  difficulty  arising  from  a  defective  or  mistaken  description  :  it  is  making  the 
will  speak  upon  a  subject  on  which  it  is  altogether  silent,  and  is  the  same  in  effect  as 
the  filling  up  a  blank,  which  the  testator  might  have  left  in  his  will.  It  amounts,  in 
short,  by  the  admission  of  parol  evidence,  to  the  making  of  a  new  devise  for  the  testa- 
tor, which  he  is  supposed  to  have  omitted.  Now,  the  first  objection  to  the  introduc- 
tion of  such  evidence  is,  that  it  is  inconsistent  with  the  rule,  which  reason  and  sense 
lay  down,  and  which  has  been  universally  established  for  the  construction  of  wills  ; 
namely,  that  the  testator's  intention  is  to  be  collected  from  the  words  used  in  the  will, 
and  that  words  which  he  has  not  used  cannot  be  added.  Den  v.  Page,  3  T.  R.  87. 
But  it  is  an  objection  no  less  strong,  that  the  only  mode  of  proving  the  alleged  inten- 
tion of  the  testator  is  by  setting  up  the  draft  of  the  will  against  the  executed  will 
itself.  As,  however,  the  cojiy  of  the  will  which  omitted  the  name  of  the  county  of 
Clare  was  for  some  time  in  the  custody  of  the  testator,  and  therefore  open  for  his  in- 
spection, which  copy  was  afterwards  executed  by  him,  with  all  the  formalities  recjuired 
by  the  Statute  of  Frauds,  the  presumption  is,  that  he  must  have  seen  and  approved  of 
the  alteration,  rather  than  that  he  overlooked  it  by  mistake.  It  is  unnecessary  to 
advert  to  the  danger  of  allowing  the  draft  of  the  will  to  be  set  up,  as  of  greater  author- 
ity  to  evince  the  intention  of  the  testator  than  the  will  itself,  after  the  will  has  been 
solemnly  executed,  and  after  the  death  of  the  testator.  If  such  evidence  is  admissible 
to  introduce  a  new  subject-matter  of  devise,  why  not  also  to  introduce  the  name  of  a 
devisee,  altogether  omitted  in  the  will  ?  If  it  is  admissible  to  introduce  new  matter  of 
devise,  or  a  new  devisee,  why  not  to  strike  out  such  as  are  contained  in  the  executed 
will  ?  The  effect  of  such  evidence  in  either  case  would  be,  that  the  will,  though  made 
in  form  by  the  testator  in  his  lifetime,  would  really  be  made  by  the  attorney  after  his 
death  ;  that  all  the  guards  intended  to  be  introduced  by  the  Statute  of  Frauds  would 
be  entirely  destroyed,  and  the  statute  itself  virtually  repealed.  And  upon  examina- 
tion of  the  decided  cases,  on  which  the  plaintiff  has  relied  in  argument,  no  one  will  be 
found  to  go  the  length  of  supporting  the  proposition  which  he  contends  for.  On  the 
contrary, "they  will  all  be  found  consistent  with  the  distinction  above  adverted  to,_ — 
that  an  uncertainty  which  arises  from  applying  the  description  contained  in  the  will, 
either  to  the  thing  devised  or  to  the  person  of  the  devisee,  may  be  helped  by  parol 
evidence  ;  but  that  a  new  subject-matter  of  devise,  or  a  new  devisee,  where  the  will  is 
entirely  silent  upon  either,  cannot  be  imported  by  parol  evidence  into  the  will  itself. 
Thus,  in  the  case  of  Lowe  v.  Lord  Huntingtower,  4  Russ.  581,  n.,  in  which  it  was  held, 
that  evidence  of  collateral  circumstances  was  admissible,  as  of  the  several  ages  of  the 
devisees  named  in  the  will,  of  the  fact  of  their  being  married  or  unmariied,  and  the 
like,  for  the  purpose  of  ascertaining  the  true  construction  of  the  will  ;  such  evidence, 
it  is  to  be  observed,  is  not  admitted  to  introduce  new  words  into  the  will  itself,  but 
merely  to  give  a  construction  to  the  words  used  in  the  will,  consistent  with  the  real 
state  of  his  property  and  family  ;  the  evidence  is  produced  to  prove  facts,  which,  accord- 
ing to  the  language  of  Lord  Coke,  in  8  Co.  Rep.  155,  'stand  well  with  the  words  of  the 
will.'  The  case  of  Standen  v.  Standen,  2  Ves.  589,  decides  no  more  than  that  a  devise 
of  all  the  residue  of  the  testator's  real  estate,  where  he  has  no  real  estate  at  all,  but  has 
a  power  of  appointment  over  real  estate,  shall  pass  such  estate  over  which  he  has  the 
power,  though  the  power  is  not  referred  to.  But  this  proceeds  upon  the  principle,  that 
the  will  would  be  altogether  inoperative,  unless  it  is  taken  that,  by  the  words  used  in 
the  will,  the  testator  meant  to  refer  to  the  power  of  appointment.  The  case  of  ]\Iosley 
V.  Massey  and  others,  8  East,  149,  does  not  appear  to  bear  upon  the  question  now 
under  consideration.  After  the  parol  evidence  had  established  that  the  local  descrip- 
tion of  the  two  estates  mentioned  in  the  will  had  been  transposed  by  mistake,  the 
county  of  Radnor  having  been  applied  to  the  estate  in  Monmouth,  and  vice  versa,  the 
court  held,  that  it  was  sufficiently  to  be  collected  from  the  words  of  the  will  itself, 
which  estate  the  testator  meant  to  give  to  the  one  devisee,  and  which  to  the  other, 
independent  of  their  local  description  ;  all,  therefore,  that  was  done,  was  to  reject  the 


CllAP.    XV.]  ADMISSIBILITY    OP   PAROL   EVIDENCE.  415 

raents;  and  it  appeared,  that  the  land  described  by  the  monu- 
ments was  in  the  county  of  II.,  and  not  of  M.  ;  that  part  of  thf 

local  description,  as  unnecessary,  and  not  to  import  any  new  description  into  the  will. 
In  the  case  of  Sel wood  v.  Mildmay,  3  Yes.  SOU,  the  testator  devised  to  his  wife  part  of 
his  stock  in  the  four  per  cent  annuities  of  the  Bank  of  England  ;  and  it  was  shown  by 
parol  evidence,  that,  at  the  time  he  made  his  will,  he  had  no  stock  in  the  four  per  cent 
annuities,  but  that  he  had  some  which  he  had  sold  out  and  had  invested  the  produce 
in  long  annuities.  And  in  this  case  it  was  held,  tliat  the  bequest  was  in  substance  a 
beipiest  of  stock,  using  the  words  as  a  denomination,  not  as  the  identical  corpus  of  the 
stock  ;  and  as  none  could  be  found  to  answer  tlie  description  but  the  long  annuities,  it 
was  held,  that  such  stock  should  pass,  rather  than  the  will  be  altogether  inoperative. 
This  case  is  certainly  a  very  strong  one  ;  but  the  decision  appears  to  us  to  range  itself 
under  the  head,  that  '  falsa  demonstratio  non  nocet,'  where  enough  appears  upon  the 
will  itself  to  show  the  intention,  after  the  false  descrii>tion  is  rejected.  The  case  of 
Goodtitle  V.  Southern,  1  M.  &  S.  299,  falls  more  closely  within  the  principle  last  re- 
ferred to.  A  devise  '  of  all  that  my  farm  called  Trogue's  Farm,  now  in  the  occupation 
of  A.  C  Upon  looking  out  for  the  farm  devised,  it  is  found  that  part  of  the  lands 
which  constituted  Trogue's  Farm,  are  in  the  occupation  of  another  person.  It  was  held, 
that  the  thing  devised  was  sulticiently  ascertained  by  the  devise  of  '  Trogue's  Farm,' 
and  that  the  inaccurate  part  of  the  devise  might  be  rejected  as  surplusage.  The  case 
of  Day  V.  Trig,  1  P.  W.  286,  ranges  itself  precisely  in  the  same  class.  A  devise  of  all 
'  the  testator's  freehold  houses  in  Aldersgate  Street,'  when  in  fact  he  had  no  freehold, 
but  had  leasehold,  houses  there.  The  devise  was  held  in  substance  and  etfect  to  be  a 
devise  of  his  houses  tiiere  ;  and  that  as  there  were  no  freehold  houses  there  to  satisfy 
the  description,  the  word  '  freehold  '  should  rather  be  rejected,  than  the  will  be  totally 
void.  But  neither  of  these  cases  affords  any  authority  in  favor  of  the  plaintiff  ;  they 
decide  only  that,  wliere  there  is  a  sufficient  description  in  the  will  to  ascertain  the 
thing  devised,  a  part  of  the  description,  which  is  inaccurate,  may  be  rejected,  not  that 
anything  may  be  added  to  the  will  ;  thus  following  the  rule  laid  down  by  Anderson, 
C.  J.,  in  Godb.  131,  — *  An  averment  to  take  away  surplusage  is  good,  but  not  to  in- 
crease that  which  is  defective  in  the  will  of  the  testator.'  On  the  contrary,  the  cases 
against  the  plaintifTs  construction  appear  to  bear  more  closely  on  the  point.  In  the 
first  place,  it  is  well  established,  that,  where  a  complete  blank  is  left  for  the  name  of 
the  legatee  or  devisee,  no  parol  evidence,  however  strong,  will  be  allowed  to  fill  it  up, 
as  intended  by  the  testator.  Hunt  v.  Hort,  3  Bro.  C.  C.  311,  and  in  many  other  cases. 
Now  the  principle  must  be  precisely  the  same,  whether  it  is  the  person  of  the  devisee, 
or  the  estate  or  thing  devised,  which  is  left  altogether  in  blank.  And  it  requires  a 
very  nice  discrimination  to  distinguish  between  the  case  of  a  will,  where  the  descrip- 
tion of  the  estate  is  left  altogether  in  blank,  and  the  present  case,  where  there  is  a  total 
omission  of  the  estates  in  Clare.  In  the  case  of  Doe  d.  Oxenden  v.  Chichester,  4  Dow, 
P.  C.  65,  it  was  held  by  the  House  of  Lords,  in  affirmance  of  the  judgment  below,  that 
in  the  case  of  a  devise  of  *  my  estate  of  Ashton,'  no  parol  evidence  was  admissible  to 
show,  that  the  testator  intended  to  pass  not  only  his  lands  in  Ashton,  but  in  the  ad- 
joining parishes,  which  he  had  been  accustomed  to  call  by  the  general  name  of  his  Ash- 
ton estate.  The  Chief  Justice  of  the  Common  Pleas,  in  giving  the  judgment  of  all  the 
judges,  says, '  If  a  testator  should  devise  his  lands  of  or  in  Devonshire  or  Somersetshire, 
it  would  be  impossible  to  say,  that  you  ought  to  receive  evidence,  that  his  intention 
was  to  devise  lands  out  of  those  counties.'  Lord  Eldon,  then  Lord  Chancellor,  in  page 
90  of  the  Report,  had  stated  in  substance  the  same  opinion.  The  case  so  put  by  Lord 
Eldnn  and  the  Chief  Justice,  is  the  very  case  now  under  discussion.  But  the  case  of 
Newburgh  v.  Newburgh,  decided  in  the  House  of  Lords  on  the  16th  of  June,  1825,  ap- 
pears to  be  in  point  with  the  present.  In  that  case  the  appellant  contended,  that  the 
omission  of  the  word  '  Gloucester,'  in  the  will  of  the  late  Lord  Newburgh,  proceeded 
upon  a  mere  mistake,  and  was  contrary  to  the  intention  of  the  testator,  at  the  time  of 
making  his  will,  and  insisted  that  she  ought  to  be  allowed  to  prove,  as  well  from  the 
context  of  the  will  itself,  as  from  other  extrinsic  evidence,  that  the  testator  intended 
to  devise  to  her  an  estate  for  life  as  well  in  the  estates  in  Gloucester,  which  was  not  in- 
serted in  the  will,  as  in  the  county  of  Sussex,  which  was  mentioned  therein.  The 
question,  'whether  parol  evidence  was  admissible  to  prove  such  mistake,  for  the  pur- 
pose of  correcting  the  will  and  entitling  the  appellant  to  the  Gloucester  estate,  as  if 
tlie  word  "Gloucester"  had  been  inserted  in  the  will,'  was  submitted  to  the  judges, 
and  Lord  Chief  Justice  Abbott  declared  it  to  be  the  unanimous  opinion  of  those  who 


416  LAW   OP   EVIDENCE.  [PART    II. 

description  which  related  to  the  county  was  rejected.  The  entire 
description  in  the  patent,  said  the  learned  judge,  who  delivered 
the  opinion  of  the  court,  must  be  taken,  and  the  identity  of  the 
land  ascertained  by  a  reasonable  construction  of  the  language 
used.  If  there  be  a  repugnant  call,  which,  by  the  other  calls  in 
the  patent,  clearly  appears  to  have  been  made  through  mistake, 
that  does  not  make  void  the  patent.  But  if  the  land  granted  be 
so  inaccurately  described  as  to  render  its  identity  wholly  uncer- 
tain, it  is  admitted  that  the  grant  is  void.^  So,  if  lands  are  de- 
scribed by  the  number  or  name  of  the  lot  or  parcel,  and  also  by 
metes  and  bounds,  and  the  grantor  owns  lands  answering  to  the 
one  description  and  not  to  the  other,  the  description  of  the  lands 
which  he  owned  will  be  taken  to  be  the  true  one,  and  the  other 
rejected  as  falsa  demonstratio.^ 

had  heard  the  argument  that  it  could  not.  As  well,  therefore,  upon  the  authority  of 
the  cases,  and  more  particularly  of  that  which  is  last  referred  to,  as  upon  reason  and 
principle,  we  think  the  evidence  offered  by  the  plaintifi'  would  be  inadmissible  upon 
the  trial  of  the  issue." 

^  Boardman  v.  Reed  and  Ford's  Lessees,  6  Peters,  328,  345,  per  McLean,  J. 

9  Loomis  V.  Jackson,  19  Johns.  449  ;  Lush  v.  Druse,  4  Wend.  313  ;  Jackson  v. 
Marsh,  6  Cowen,  281  ;  Worthington  v.  Hylyer,  4  Mass.  196  ;  Blague  v.  Gold,  Cro. 
Car.  447;  Swyft  v.  Eyres,  Id.  548.  So,  where  one  devised  "all  thut freehold  farm 
called  the  Wick  Farm,  containing  two  hundred  acres  or  thereabouts,  occupied  by  W. 
E.  as  tenant  to  me,  with  the  appurtenances,"  to  uses  applicable  to  freehold  property 
alone  ;  and  at  the  date  of  the  will,  and  at  the  death  of  the  testator,  W.  E.  held,  under 
a  lease  from  him,  two  hundred  and  two  acres  of  land,  which  were  desciibed  in  the 
lease  as  the  Wick  Farm,  but  of  which  twelve  acres  were  not  freehold,  but  were  lease- 
hold only  ;  it  was  held  that  these  twelve  acres  did  not  pass  by  the  devise.  Hall  v. 
Fisher,  1  Collyer,  47.  The  object  in  cases  of  this  kind  is,  to  interjiret  the  iu.strument, 
that  is,  to  ascertain  the  intent  of  the  parties.  The  rule  to  find  tbe  intent  is,  to  give 
most  effect  to  those  things  about  which  men  are  least  liable  to  mistake.  Davis  v. 
Rainsford,  17  Mass.  210  ;  Mclver  v.  Walker,  9  Cranch,  178.  On  this  piinciple,  the 
things  usually  called  for  in  a  grant,  that  is,  the  things  by  which  the  land  granted  is 
described,  have  been  thus  marshalled:  First.  The  highest  regard  is  had  to  natural 
boundaries.  Secondly.  To  lines  actually  run,  and  corners  actually  marked,  at  the  time 
of  the  grant.  Thirdly.  If  the  lines  and  courses  of  an  adjoining  tract  are  called  for,  the 
lines  will  be  extended  to  them,  if  they  ai-e  sufficiently  established,  and  no  other  depart- 
ure from  the  deed  is  thereby  required  ;  marked  lines  prevailing  over  those  which  are 
not  marked.  Fourthly.  To  courses  and  distances  ;  giving  preference  to  the  one  or  the 
other,  according  to  circumstances.  See  Cberry  v.  Slade,  3  Murphy,  82  ;  Dogan  v. 
Seekright,  4  Hen.  &  Munf.  125,  130  ;  Preston  v.  Bowmar,  6  Wheat.  582  ;  Loring  v. 
Norton,  8  Greenl.  61  ;  2  Flintoff  on  Real  Property,  537,  538  ;  Nelson  v.  Hall,  1  Mc- 
Lean, 518  ;  Wells  v.  Compton,  3  Rob.  (La.)  171.  (»)  And  in  determining  the  lines 
of  old  surveys,  in  the  absence  of  any  monuments  to  be  found,  the  variation  of  the 
needle  from  the  true  meridian,  at  the  date  of  the  original  survey,  should  be  ascertained  ; 
and  this  is  to  be  found  by  the  jury,  it  being  a  question  of  fact,  and  not  of  law.  Bur- 
gin  V.  Chenault,  9  B.  Monr.  285  ;  2  Am.  Law  Journ.  N.  s.  470.  Monuments  men- 
tioned in  the  deed,  and  not  then  existing,  but  which  are  forthwith  erected  liy  the  par- 
ties, in  order  to  conform  to  the  deed,  will  be  regarded  as  the  monuments  referred  to, 
and  will  control  the  distances  given  in  the  deed.  Makepeace  v.  Bancroft,  12  Mass. 
469  ;  Davis  v.  Rainsford,  17  Mass.  207  ;  (b)  Lernerd  v.  Morrill,  2  N.  H.  197.  And  if 
no  monuments  are  mentioned,  evidence  of  long-continued  occupation,  though  beyond 

(a)  Kellogg  u.  Smith,  7  Gush.  (Mass.)  (/;)  Blaney    v.     Rice,     20    Pick.    62; 

375,    379-384;  Nevvhill  v.   Ireson,   8   Id.     Cleaveland  v.  Flagg,  4   Gusli.  (Mass.)  76, 
595  ;  Haynes  v.  Young,  36  Me.  557.  81. 


CHAP.    XV.]  ADMISSIBILITY   OF    PAROL    EVIDENCE.  417 

§  302.  Parol  evidence  admissible  to  show  that  the  asreement  is 
discharged.  Returiiiiig  now  to  the  consideration  uf  the  general 
rule,  that  extrinsic  verbal  evidence  is  not  admissible  to  contra- 
dict or  alter  a  written  instrument,  it  is  further  to  be  observed, 
that  this  rule  does  not  exclude  such  evidence,  when  it  is  adduced 
to  prove  that  the  written  agreement  is  totally  discharged.  If  the 
agreement  be  by  deed,  it  cannot,  in  general,  be  dissolved  by  any 
executory  agreement  of  an  inferior  nature ;  but  any  obligation  by 
writing  not  under  seal  may  be  totally  dissolved,  before  breach, 
by  an  oral  agreement.  ^  (a)  And  there  seems  little  room  to 
doubt,  that  this  rule  will  apply,  even  to  those  cases  where  a  writ- 
ing is  by  the  Statute  of  Frauds  made  necessary  to  the  validity  of 
the  agreement.'^  But  where  there  is  an  entire  agreement  in  writ- 
ing, consisting  of  divers  particulars,  partly  requisite  to  be  in 
writing  by  the  Statute  of  Frauds,  and  partly  not  within  the  stat- 
ute, it  is  not  competent  to  prove  an  agreed  variation  of  the  latter 


the  given  distances,  is  admissible.  Owen  v.  Bartholomew,  9  Pick.  520.  If  the  de- 
scription is  ambiguous  or  doubtful,  parol  evidence  of  the  practical  construction  given  by 
the  parties,  by  acts  of  occupancy,  recognition  of  monuments  or  boundaries,  or  other- 
wise, is  admissible  in  aid  of  the  interpretation.  Stone  v.  Clark,  1  Met.  378.  (c)  Words 
necessary  to  ascertain  the  premises  must  be  retained  ;  but  words  not  necessary  for  that 
purpose  may  be  rejected,  if  inconsistent  with  the  others.  Worthington  v.  Hylyer,  4 
Mass.  205  ;  Jackson  v.  Sprague,  1  Paine,  494  ;  Vose  v.  Handy,  2  Greenl.  322.  The 
ex])ression  of  quantity  is  descriptive,  and  may  well  aid  in  finding  the  intent,  where  the 
boundaries  are  doubtful.  Mann  t;.  Pearson,  2  Johns.  37,  41  ;  Perkins  v.  Webster,  2 
N.  H.  287  ;  Thorndike  v.  Richards,  1  Shepl.  437  ;  Allen  v.  Allen,  2  Shepl.  387  ;  Wood- 
man V.  Lane,  7  N.  H.  241  ;  Pernam  v.  Wead,  6  Mass.  131  ;  Reddick  v.  Leggat,  3 
Murphy,  539,  544  ;  supra,  §  290.  See  also  4  Cruise's  Dig.  tit.  32,  c.  21,  §  31,  n. 
(Greenleaf's  ed.)  [2  Greenleafs  ed.  (1856)  vol.  ii.  pp.  628-641,  and  notes],  where  this 
subject  is  more  fully  considered. 

1  Bull.  N.  P.  152  ;  Milward  v.  Ingram,  1  Mod.  206;  .s.  c.  2  Mod.  43  ;  Edwards  v. 
Weeks,  1  Mod.  262  ;  s.  c.  2  Mod.  259  ;  s.  c.  1  Freem.  230  ;  Lord  Milton  v.  Edgworth, 

5  Bro.  P.  C.  318  ;  4  Cruise's  Dig.  tit.  32,  c.  3,  §  51  ;  Clement  v.  Durgin,  5  Greenl. 
9  ;  Cottrill  v.  Myrick,  3  Fairf.  222 ;  Ratcliff  v.  Pemberton,  1  Esp.  35  ;  Fleming  v. 
Gilbert,  3  Johns.  531.  But  if  the  obligation  be  by  deed,  and  there  be  a  parol  agree- 
ment in  discharge  of  sueh  obligation,  if  the  i^arol  agreement  be  executed,  it  is  a  good 
discharge.  Dearborn  v.  Cross,  7  Cowen,  48.  See  also  Littler  v.  Holland,  5  T.  R.  390; 
Peytoe's  Case,  9  Co.  77  ;  Kaye  v.  Waghorn,  1  Taunt.  428  ;   Le  Fevre  v.  Le  Fevre,  4  S. 

6  R.  241 ;  Suydara  v.  Jones,  10  Wend.  180  ;  Barnani  v.  Darling,  11  Wend.  27,  30. 
In  equity,  a  parol  rescission  of  a  written  contnict,  after  breach,  may  be  set  up  in  bar 
of  a  bill  for  specific  performance.  Walker  v.  Wheatly,  2  Humphreys,  119.  By  the 
law  of  Scotlaud,  no  written  obligation  whatever  can  be  extinguished  or  renounced, 
without  either  the  creditor's  oath,  or  a  writing  signed  bv  him.     Tait  on  Evid.  p.  325. 

2  Phil.  &  Am.  on  Evid.  776  ;  2  Phil.  Evid.  363  ;  Goss  v.  Lord  Nugent,  5  B.  &  Ad. 
58,  65,  66,  per  Ld.  Denman,  C.  J.  ;  Stowell  v.  Robinson,  3  Bing.  N.  C.  928 ;  Cum- 
mings  V.  Arnold,  3  Met.  486  ;  Stearns  v.  Hall,  9  Cash.  31,  34. 

(c)  Kello-g  V.  Smith,  7  Cush.  (Mass.)  Civil  Code  of  Louisiana,  art.  1951  ;  Wells 

375,  383  ;  Waterman  v.  Johnson,  13  Pick.  v.  Compton,  3  Rob.  (La.)  171. 

(Mass.)  261;  Frost  v.  Spanlilincr,  19   Id.  (n)  Danforth   v.  Mclntyre,  11  111.  App. 

445  ;    Clark    v.    Munyan,    22    Id.     410  ;  417. 
Crafts  V.  Hibbard,  4 'Met.    (Mass.)   438; 
VOL.  I.  —  27 


418  LAW   OF   EVIDENCE.  [PART   11. 

part,  by  oral  evidence,  though  that  part  might,  of  itself,  have 
been  good  without  writing.  ^ 

§  303.  Or  a  new  additional  or  substituted  agreement.  Neither 
is  the  rule  infringed  by  the  admission  of  oral  evidence  to  prove  a 
new  and  distinct  agreement,  upon  a  new  consideration,  whether  it 
be  as  a  substitute  for  the  old,  or  in  addition  to  and  beyond  it. 
And  if  subsequent,  and  involving  the  same  subject-matter,  it  is 
immaterial  whether  the  new  agreement  be  entirely  oral,  or  whether 
it  refers  to  and  partially  or  totally  adopts  the  provisions  of  the 
former  contract  in  writing,  provided  the  old  agreement  be  re- 
scinded and  abandoned.  1(a)  Thus,  where  one  by  an  instrument 
under  seal  agreed  to  erect  a  building  for  a  fixed  price,  which  was 
not  an  adequate  compensation,  and,  having  performed  part  of  the 
work,  refused  to  proceed,  and  the  obligee  thereupon  promised 
that,  if  he  would  proceed,  he  should  be  paid  for  his  labor  and 
materials,  and  should  not  suffer,  and  he  did  so ;  it  was  held  that 
he  might  recover  in  assumpsit  upon  this  verbal  agreement. ^  So, 
where  the  abandonment  of  the  old  contract  was  expressly  mutual.  ^ 
So,  where  a  ship  was  hired  by  a  charter-party  under  seal,  for  eight 
months,  commencing  from  the  day  of  her  sailing  from  Gravesend, 
and  to  be  loaded  at  any  British  port  in  the  English  Channel ;  and 
it  was  afterwards  agreed  by  parol  that  she  should  be  laden  in 
the  Thames,  and  that  the  freight  should  commence  from  her  entry 
outwards  at  the  custom-house ;  it  was  held,  that  an  action  would 
lie  upon  the  latter  agreement* 

§  304.    Enlargement  of  time    of   performance.       It    is    also  well 

3  Harvey  v.  Grabham,  5  Ad.  &  El.  61,  74  ;  Marshall  v.  Lynn,  6  M.  &  W.  109. 

1  Burn  V.  Miller,  4  Taunt.  745  ;  Foster  v.  Allanson,  2  T.  R.  479  ;  Schack  v.  An- 
thony, 1  M.  &  S.  573,  575  ;  Sturdy  v.  Arnaud,  3  T.  R.  599  ;  Brigham  v.  Rogers,  17 
Mass.  573,  per  Putnam,  J.;  Heard  v.  Wadham,  1  East,  630,  per  Lawrence,  J.;  1  Chitty 
on  PI.  93  ;  Richardson  v.  Hooper,  13  Pick.  446  ;  Brewster  v.  Countryman,  12  Wend. 
446  ;  Delacroix  w.  Bulkley,  13  Wend.  71  ;  Vicary  v.  Moore,  2  Watts,  456,  457,  per 
Gibson,  C.  J.;  Brock  v.  Sturdivant,  3  Fairf.  81  ;  Marshall  v.  Baker,  1  Appleton,  402  ; 
Chittv  on  Contracts,  p.  SS. 

2  Munroe  v.  Perkins,  9  Pick.  298.     See  also  Rand  v.  Mather,  11  Cush.  1. 
**  Lattimore  v.  Harsen,  14  Johns.  330.' 

4  White  V.  Parkin,  12  East,  578. 

(a)  Russell  v.  Barry,  115  Mass.  300  ;  ment,  on  good  consideration  to  reduce  the 
Whitney  v.  Shippen,  89  Pa.  St.  22  ;  Wig-  rent,  was  admissible.  Hastings  v.  Love- 
gin  V.  Goodwin,  63  Me.  389;  Davidson  v.  joy,  supra.  Where  two  distinct  con- 
Bodley,  27  La.  An.  149  ;  Sharkey  v.  Mil-  tracts  for  service  on  two  distinct  voyages 
ler,  69  111.  560  ;  Hastings  v.  Lovejoy,  140  are  made  at  the  same  time,  and  one  only 
Mass.  261  :  Emerv  v.  Boston  Marine  Ins.  is  reduced  to  writing,  the  other  may  be 
Co.,  138  Mass.  398:  Cummings  v.  Arnold,  proved  by  parol.  Page  v.  Sheffield,  2 
3  Met.  486,  489.  Thus,  where  a  written  Cuitis,  C.  C.  377 ;  Cilley  v.  Tennj',  31 
lease  under  .se.al  was  given  providing  for  Vt.  401.  But  new  terms  cannot  be  incor- 
the  payment  of  a  certain  rent,  it  was  held  porated  into  a  written  contract  by  parol. 
that  evidence  of  an  oral  subsequent  agree-  Adler  v.  Friedman,  16  Cal.  138. 


CHAP.    XV.]  ADMISSIBILITY   OF    PAROL    EVIDENCE.  419 

settled  that,  in  a  case  of  a  simple  contract  in  writing,  oral  evi- 
dence is  admissible  to  show  that,  by  a  subsequent  agreement,  the 
time  of  performance  was  enlarged^  or  the  place  of  performance 
changed,  the  contract  having  been  performed  according  to  the 
enlarged  time,  or  at  the  substituted  place,  or  the  performance 
having  been  prevented  by  the  act  of  the  other  party ;  or  that  the 
damages  for  non-performance  were  waived  and  remitted ;  ^  or  that 
it  was  founded  upon  an  insufficient  or  an  unlawful  consideration^ 
or  was  without  consideration  ;2  or  that  the  agreement  itself  was 
ivaived  and  abandoned. ^  So,  it  has  been  held  competent  to  prove 
an  additional  and  suppletory  agreement,  by  parol ;  as,  for  example, 
where  a  contract  for  the  hire  of  a  horse  was  in  writing,  and  it  was 
further  agreed  by  parol  that  accidents,  occasioned  by  his  shying, 
should  be  at  the  risk  of  the  hirer.  ^  (a)     A  further  consideration 

1  Jones  V.  Barklev,  2  Doug.  684,  694  ;  Hothara  i-.  E.  In.  Co.,  1  T.  R.  638  ;  Cum- 
mings  V.  Arnold,  3  Met.  486  ;  Clement  v.  Durgin,  5  Greenl.  9  ;  Keating  v.  Price,  1 
Johns.  Cas.  22  ;  Flemings.  Gilbert,  3  Johns.  .530,  531,  per  Thompson,  J.;  Erwin  v. 
Saunders,  1  Cowen,  249;  Frost  v.  Everett,  5  Cowen,  497;  Dearborn  v.  Cross,  7  Cowen, 
50;  Neil  v.  Cheves,  1  Bailey,  537,  538,  n.  {a);  Cuff  i^.  Penn,  1  M.  &  S.  21  ;  Robinson 
V.  Bachelder,  4  N.  H.  40  ;  Medomak  Bank  v.  Curtis,  11  Shepl.  36  ;  Blood  v.  Good- 
rich, 9  Wend.  68;  Youqua  v.  Nixon,  1  Peters,  C.  C.  221.  But  see  Marshall  v.  Lynn, 
6  M.  &  W.  109. 

2  See  supra,  §  26,  cases  in  note  ;  Mills  v.  Wyman,  3  Pick.  207;  Erwin  v.  Saunders, 
1  Cowen,  249  ;  Hill  v.  Buckminster,  5  Pick.  391  ;  Rawson  v.  Walker,  1  Stark.  361  ; 
Foster  v.  Jolly,  1  C.  M.  &  R.  707,  708,  per  Parke,  B.  ;  Stackpole  v.  Arnold,  11  Mass. 
27,  32  ;  Folsom  v.  Mussey,  8  Greenl.  400. 

3  Ballard  v.  Walker,  3  Johns.  Cas.  60  ;  Poth.  on  Obi.  pt.  3,  c.  6,  art.  2,  No.  636  ; 
Marshall  v.  Baker,  1  Appleton,  402  ;  Eden  v.  Blake,  13  M.  &  W.  614. 

*  Jeffery  v.  Walton,  1  Stark.  267.  In  a  suit  for  breach  of  a  written  agreement  to 
manufacture  and  deliver  weekly  to  the  plaintiff  a  certain  (^[uantity  of  cloth,  at  a  certain 
price  per  yard,  on  eight  months'  credit,  it  was  held,  that  the  defendant  might  give  in 
evidence,  as  a  good  defence,  a  subsequent  parol  agreement  between  him  and  the  i)lain- 
titf,  made  on  sufficient  consideration,  by  which  the  mode  of  payment  was  varied,  and 
that  the  plaintiff  had  refused  to  perform  the  parol  agreement.  Cummings  v.  Arnold,  3 
Met.  486.  See  further,  Wright  v.  Crookes,  1  Scott,  N.  s.  685.  Where  the  action  is 
for  work  and  labor  extra  and  beyond  a  written  contract,  the  plaintiff  will  be  held  to 
produce  the  written  contract,  for  the  purpose  of  showing  what  was  included  in  it. 
Buxton  V.  Cornish,  12  M.  &  W.  426  ;  Vincent  v.  Cole,  1  M.  &  Malk.  257. 

(a)  It  may  be  shown  by  parol  that,  at  tinue,  oral  evidence  is  admissible  to  show 

the  time  a  promissory  note  was  given  by  thgt  the  pai'ties  did  not  intend  to  bind 

A  to  B  for  money  lent,  an  agreement  was  themselves  by  the  written  agreement  for 

made  to  pay  a  certain  sum  as  extra  inter-  any  definite  period  of  time,  but  purposely 

est.     Rohan  v.  Hanson,  11  Cush.  (Mass.)  left  that  to  be  settled  either  by  contempo- 

44,  46.     The  date  of  a  contract  in  writing,  raneous  or  subsequent   agreement.     Real 

when  referred  to  in  the  body  of  the  con-  Estate  Title,  &c.,  Co.'s  Appeal,   125  Pa. 

tract,  as  fixing  the  time  of  payment,  can-  St.  560;  Thomas  v.  Loose,  114  Pa.  St.  35. 

not  be  altered  or  varied  by  parol.     Joseph  So,  in  a  recent  case  in  New  York  (Dodge 

V.   Bigelow,   4   Id.   82,    84.     The  time  of  v.   Zimmer,    110  N.  Y.   49),    it  was  held 

performance  of  a  written  contract  within  that  an  independent  collateral  agreement, 

the  Statute  of  Frauds  may  be  shown  to  although    by  parol,  was  admissible   as   a 

have  been  enlarged  by  a  subsequent  parol  stipulation  which  assumed  the  agreement 

agreement.     Stearns  v.  Hall,  9  Id.  31,  34.  precisely  as  indicated  by  the  writing,  but 

When  the  written  agreement  is  silent  as  to  dealt  with  a  possible  contingency  in  the 

how  long  the  same  was  intended  to  con-  future,  as  to  which  a  separate  or  suppl&- 


420  LAW   OF   EVIDENCE.  [PAKT   II. 

may  also  be  proved  by  parol,  if  it  is  not  of  a  different  nature  from 
that  which  is  expressed  in  the  deed.^  (i)  And  if  the  deed  appears 
to  be  a  voluntary  conveyance,  a  valuable  consideration  may  be 
proved  by  parol. '^ 

§  305.  Receipts.  In  regard  to  receipts,  it  is  to  be  noted  that 
they  may  be  cither  mere  acknowledgments  of  payment  or  delivery, 
or  they  may  also  contain  a  contract  to  do  something  in  relation 
to  the  thing  delivered.  In  the  former  case,  and  so  far  as  the 
receipt  goes  only  to  acknowledge  payment  or  delivery,  it  is  merely 
prima  facie  evidence  of  the  fact,  and  not  conclusive ;  and  there- 
tore  the  fact  which  it  recites  may  be  contradicted  by  oral  testi- 
mony, (a)  But  in  so  far  as  it  is  evidence  of  a  contract  between 
the  parties,  it  stands  on  the  footing  of  all  other  contracts  in  writ- 
ing, and  cannot  be  contradicted  or  varied  by  parol.  ^  (6)  Thus, 
for  example,  a  bill  of  lading,  which  partakes  of  both  these  char- 
acters, may  be  contradicted  and  explained  in  its  recital,  that  the 
goods  were  in  good  order  and  well  conditioned,  by  showing  that 
their  internal  order  and  condition  was  bad ;  and,  in  like  manner 
in  any  other  fact  which  it  erroneously  recites;  but  in  other 
respects  it  is  to  be  treated  like  other  written  contracts. 2((?) 

We  here  conclude  the  Second  Part  of  this  Treatise. 

5  Clifford  V.  Turrill,  9  Jnr.  633. 

6  Pott  V.  Todhuiiter,  2  Collyer,  Ch.  Cas.  76,  84. 

1  Straton  v.  Rastall,  2  T.  R.  366;  Alner  v.  George,  1  Canipb.  392;  supra,  §  26,  n.  ; 
Stackpole  v.  Arnold,  11  Mass.  27,  32  :  Tucker  ■;;.  Maxwell,  Id.  143  ;  Johnson  v.  John- 
son, Id.  359,  363,  per  Parker,  C.  J.;  Wilkinson  v.  Scott,  17  Mass.  257;  Rex  v.  Scani- 
monden,  3  T.  R.  474  ;  Rollins  v.  Dyer,  4  Shepl.  475  ;  Brooks  v.  White,  2  Met.  283  ; 
Niles  V.  Culver,  4  Law  Rep.  N.  s.  72.  "  The  true  view  of  the  subject  seems  to  he,  that 
such  circumstances,  as  would  lead  a  court  of  equity  to  set  aside  a  contract,  such  as 
fraud,  mistake,  or  surprise,  may  he  shown  at  law  to  destroy  the  efTect  of  a  receipt." 
Per  Williams,  J.,  in  Fuller  v.  Crittenden,  9  Conn.  406  ;  supra,  §  285. 

2  Barrett  v.  Rogers,  7  Mass.  297;  Gardners.  Chace,  2  R.  I.  112;  The  Tuskar,  1 
Sprague    (U.  S.   Dist.  Ct.),   71  ;   I'.enjamin  v.   Sinclair,   1  Bailey,  174.     In  the  latter 

tory  agreement  was  made;  that  is,  that  (Mass.),   104;   Stacy  v.  Kemp,  97  Mass. 

assuming  the  contract  of  purchase  and  sale  166.     So  where  a  billhead  says,  "  All  bills 

to  stand  and  remain  unchanged  in  all  its  to  be  paid  to  treasurer  and  bills  receipted 

terms,  it  looked  forward  to  a  possible  con-  by  him,"  other  modes^f  payment  may  be 

tingency  in  the  action  of  a  third  person  shown.     Kinsman  t;.  Kershaw,  119  Mass. 

v.hich   might   put  in  peril  the  terms  as  140. 

they  stood,  and,  by  such  suppletory  parol  {b)  Squires    v.    Amherst,     145    Mass. 

agreement,  sought  to  avert  the  danger  and  192;  Hill  v.    Syracuse,   &c.,   R.    R.   Co., 

gu  ird  against  it.  73  N.    Y.    351 ;   Leonard  v.   Dunton,    51 

(b)  Miller  V.  Goodwin,  8  Gray  (Ma.ss.),  111.  482. 
542;  Pierce  v.   Weymouth,  45  Me.    481;  (c)  Clarke  v.   Barnwell,   12  How.   (U. 

Lewis  V.  Brewster,  57  Pa.  St.  410;  Cowan  S.)   272  ;    O'Brien   v.    Gilchrist,    34   Me. 

V.  Cooper,  41  Ala.  187.    But  not  another  or  554;  Ellis  v.  Willard,  5  Selden,  529;  Fitz- 

different  consideration.    Hendrick  v.  Crow-  hugh  v.  Wiman,  Id.  559,  566  ;  McTyer  f. 

ley,  31  Cal.  471 ;  Sewell  v.  Baxter,  2  Md.  Steele,   26  Ala.   487  ;    Burke  v.  Ray,    40 

Ch.    447.     But   see   Rhine   v.    Ellen,    36  Minn.  35  ;  Adams  v.  Davis,  109  Ind.  21  ; 

Cal.  362.  Haverly  v.    Railroad    C^impany,    125   Pa. 

(a)  Hildreth    v.     O'Brien,     10    Allen  St.  122  ;  Thompson  v.  Maxwell,  74  Iowa, 


CHAP.    XV.]  ADMISSIBILITY    OF   PAROL   EVIDENCE. 


421 


case,  it  was  held,  that  the  recital  in  the  bill  of  lading,  as  to  the  good  order  and  condi- 
tion'of  the  goods,  was  ai)plic;able  only  to  their  external  and  ai)parent  order  and  condi- 
tion ;  hut  that  it  did  not  extend  to  the  (quality  of  the  material  in  which  they  were 
enveloped,  nor  to  secret  defects  in  the  goods  themselves  ;  and  that,  as  to  defects  of  the 
two  latter  descriptions,  parol  evidence  was  admissible.  See  also  Smith  v.  Brown,  3 
Hawks,  580  ;  May  v.  Babcock,  4  Ohio,  334,  346. 


415.  And  the  fact  of  the  execution  of 
the  written  instrument  when  no  attempt 
is  made  to  i)rove  its  contents,  but  the  fact 
of  execution  comes  in  collaterally  or  inci- 
dentally to  the  case,  may  be  shown  by 
oral  evidence.  Roberts  v.  Burgess,  85 
Ala.  192.  And  so  when  the  purpose  is  to 
prove  the  existence  of  a  written  contract 
collaterally,  oral  agreements  tending  to 
show  such  existence  may  be  proved. 
Brewster  v.  Reel,  74  Iowa,  506.  Where 
the  payee  of  a  promissory  note,  not  nego- 
tiable, for  $120,  delivered  it  to  a  third 
person,  and  took  back  the  following  writ- 
ing :  "  Received  of  A  a  note  (describing 
itK  for  which  I  am  to  collect  and  account 
to  the  said  A  the  sum  of  $110,  when  the 
above  note  is  collected,  or  return  said  note 
back  to  said  A  if  I  choose  ; "  it  was  de- 
cided that  parol  evidence,  which  was  of- 
fered to  show  that  the  note  was  held  on 
other  and  ditl'erent  terms,  was  rightly  ex- 
cluded. Langdon  v.  Langdon,  4  Gray 
(Mass.),  186,  188;  Furbush  v.  Goodwin, 
25  N.  H.  425  ;  Wood  v.  Whiting,  21 
Barb.  (N.  Y.)  190,  197.  See  also  Alex- 
ander V.  Moore,  19  Mo.  143  ;  Sutton  v. 
Kettell,  1  Sprague's  Decisions,  309.  The 
rule  that  parol  evidence  is  not  admissible 
to  vary  or  control  a  written  contract  is 
not  applicable  to  mere  bills  of  parcels 
made  in  the  usual  form,  in  which  noth- 
ing appears  but  the  names  of  the  ven- 
dor and  vendee,  the  articles  purchased, 
with  the  prices  affixed,  and  a  receipt  of 


payment  by  the  vendor.  These  form  an 
exception  to  the  general  rule  of  evidence, 
being  informal  documents,  intended  only 
to  specify  prices,  quantities,  and  a  receipt 
of  payment,  and  not  used  or  designed  to  em- 
body and  set  out  the  terms  and  conditions 
of  a  contract  of  bargain  and  sale.  They 
are  in  the  nature  of  receipts,  and  are  al- 
ways open  to  evidence,  which  proves  the 
real  terms  upon  which  the  agreement  of 
sale  was  made  between  the  parties.  1 
Cowen  &  Hill's  note  to  Phil,  on  Evid. 
385,  n.  229  ;  2  Id.  603,  n.  295  ;  Harris  v. 
Johnston,  3  Cranch,  311  ;  Wallace  v, 
Rogers,  2  N.  H.  506  ;  Bradford  v.  Man- 
leyT  13  Mass.  139;  Fletcher  v.  Willard, 
14  Pick.  464.  By  Bigelow,  J.,  in  Hazard 
V.  Loring,  10  Gush.  267,  268.  The  words 
on  a  bill  of  parcels,  "consigned  6  mo.," 
and  "  Terms  Cash,"  may  be  explained  by 
parol.  George  i'.  Joy,  19  N.  H.  544.  See 
Linsley  v.  Lovely,  26  Vt.  123.  In  some 
States  a  due-bili  is  held  to  be  a  promis- 
sory note,  in  others  it  is  held  to  be  if  it 
contains  words  denoting  a  promise  to  pay 
or  an  intent  that  it  shall  be  negotiable. 
But  the  better  authority,  as  well  as  the 
most  consistent  with  principle,  is  that  a 
mere  acknowledgment  of  indebtedness  is 
not  of  itself  a  contract.  It  is  rather  an 
admission  of  fact,  and  like  all  mere  ad- 
missions written  or  oral,  it  might  be  con- 
tradicted or  explained  by  parol.  Alexander 
V.  Thompson,  42  Minn.  499. 


PART    III. 

OF  THE  INSTRUMENTS   OF  EVIDENCE. 


PART  III. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 


CHAPTER   I. 

OF  WITNESSES,    AND   THE   MEANS   OF   PROCURING    THEIR   ATTENDANCE. 

§  306.  Instruments  of  evidence.  Having  thus  considered  the 
general  nature  and  principles  of  evidence,  and  the  rules  which 
govern  in  the  production  of  evidence,  we  come  now,  in  the  third 
place,  to  speak  of  the  instruments  of  evidence,  or  the  means  by 
which  the  truth  in  fact  is  established.  ^  In  treating  this  subject, 
we  shall  consider  how  such  instruments  are  obtained  and  used, 
and  their  admissibility  and  effect. 

§  307.  "Written  and  unwritten.  The  instruments  of  evidence 
are  divided  into  two  general  classes;  namely,  umvritten  and 
written.  The  former  is  more  naturally  to  be  first  considered, 
because  oral  testimony  is  often  the  first  step  in  proceeding  by 
documentary  evidence,  it  being  frequently  necessary  first  to  es- 
tablish, in  that  mode,  the  genuineness  of  the  documents  to  be 
adduced. 

§  308.  Unwritten.  By  unwritten  or  07'al  evidence  is  meant  the 
testimony  given  by  witnesses,  viva  voce,  either  in  open  court  or 
before  a  magistrate  acting  under  its  commission  or  the  authority 
of  law.  Under  this  head  it  is  proposed  briefly  to  consider 
(1)  The  method,  in  general,  of  procuring  the  attendance  and 
testimony  of  witnesses ;  (2)  The  competency  of  witnesses ;  (3)  The 
course  and  practice  in  the  examination  of  witnesses ;  and  herein 
of  the  impeachment  and  the  corroboration  of  their  testimony. 

§  309.  Attendance  of  witnesses.  And,  first,  in  regard  to  the 
method  of  procuring  the  attendance  of  witnesses,  it  is  to  be  ob- 

1  Parties  are,  ordinarily,  permitted  to  exercise  their  own  judgment,  as  to  the  order 
of  introducing  their  proofs.  Lynch  v.  Benton,  3  Rob.  (La.),  105.  And  testimony, 
apparently  irrelevant,  may,  in  the  discretion  of  the  judge,  be  admitted  if  it  is  expected 
to  become  relevant  by  its  connection  with  other  testimony  to  be  afterwards  offered. 
State  V.  M'Allister,  11  Shepl.  139. 


426  LAW   OP   EVIDENCE.  [PART    III. 

served  that  every  court,  having  power  definitely  to  hear  and 
determine  any  suit,  has,  by  the  common  law,  inherent  power  to 
call  for  all  adequate  proofs  of  the  facts  in  controversy,  and,  to 
that  end,  to  summon  and  compel  the  attendance  of  witnesses  be- 
fore it.  (a)  The  ordinary  summons  is  a  writ  of  subpoena,  which 
is  a  judicial  writ,  directed  to  the  witness,  commanding  him  to 
appear  at  the  court  to  testify  what  he  knows  in  the  cause  therein 
described,  pending  in  such  court,  under  a  certain  penalty  men- 
tioned in  the  writ.  If  the  witness  is  expected  to  produce  any 
books  or  papers  in  his  possession,  a  clause  to  that  effect  is  in- 
serted in  the  writ,  which  is  then  termed  a  subpoena  duces  tecum.  ^  (6) 
The  writ  of  subpoena  suffices  for  only  one  sitting  or  term  of  the 
court.  If  the  cause  is  made  a  remanet,  or  is  postponed  by  ad- 
journment to  another  term  or  session,  the  witness  must  be  sum- 
moned anew.  The  manner  of  serving  the  subpoena  being  in 
general  regulated  by  statutes,  or  rules  of  court,  which  in  the 

1  This  additional  clause  is  to  the  following  effect  :  "And  also,  that  you  do  diligently 
and  carefully  search  for,  examine,  and  inquire  after,  and  bring  with  you  and  produce, 
at  the  time  and  place  aforesaid,  a  bill  of  exchange,  dated,"  &c.  (here  describing 
with  precision  the  papers  and  documents  to  be  produced),  "  together  with  all  copies, 
drafts,  and  vouchers,  relating  to  the  said  documents,  and  all  other  documents,  letters, 
And  paper  writings  whatsoever,  that  can  or  may  afford  any  information  or  evidence  in 
said  cause  ;  then  and  there  to  testify  and  show  all  and  singular  those  things  which  you 
(or  either  of  you)  know,  or  the  said  documents,  letters,  or  instruments  in  writing  do 
import,  of  and  concerning  the  said  cause  now  depending.  And  this  you  (or  any  of  you) 
shall  in  no  wise  omit,"  &c.  3  Chitty's  Gen.  Practice,  830,  n.  ;  Amey  v.  Long,  9  East, 
473. 

(a)  The  power  of  legislative  bodies  to  imprisoned.     Bumham  v.   Morrissey,    14 

punisli  a  witness  for  contempt  in  not  ap-  Gray,  226. 

pearing  before  them  has  been  the  subject  of  (b)  If  a  writ  of  subpoena  duces  does  not 
several  decisions.  In  Kilbourn  v.  Tliomp-  contain  the  words  "  to  testify  "  as  well  as 
son,  103  U.  S.  168,  tlie  plaintiff  sued  the  to  appear  and  bring  the  document,  it  is  an 
defendant,  the  sergeant-at-arms  of  the  invalid  summons,  as  the  power  of  the  Court 
House  of  Representatives,  for  false  im-  to  compel  the  witness  to  attend  is  based 
prisonment.  The  defendant  set  up  in  his  on  the  fact  that  the  testimony  of  the  wit- 
plea  that  he  acted  by  direction  of  a  com-  ness  is  material  to  a  case  in  court.  Murray 
mittee  of  the  House  of  Representatives,  v.  Elston,  23  N.  J.  Eq.  212.  The  degree 
The  decision  in  this  case  was  that  the  of  particularity  in  the  description  of  the 
committee  was  appointed  to  investigate  papers  is  thus  stated  by  Dillon,  J.,  in 
a  subject  not  within  the  power  of  the  United  States  v.  Babcock,  3  Dill.  (U.  S.) 
House  to  investigate,  and  the  action  of  568  :  "The  papers  are  required  to  be 
the  committee  was  therefore  2dtra  vires  and  stated  or  specified  only  with  that  degree  of 
no  defence.  The  language  of  the  Court  certainty  which  is  practicable  considering 
seems  to  admit  that  in  some  cases,  the  all  the  circumstances  of  the  case,  so  that 
House  might  commit  a  witness  for  con-  the  witness  may  be  able  to  know  what  is 
tempt,  and  the  case  of  Anderson  v.  Dunn,  wanted  of  him  and  to  have  the  papers  at 
6  Wlieat.  204,  supports  this  view.  A  the  trial  so  that  they  can  be  used  if  the 
State  legislature  has  the  power  to  compel  Court  shall  then  determine  them  to  be 
witnesses  to  attend  and  testify  before  the  competent  and  relevant  evidence."  To 
House  or  one  of  its  committees ;  and  the  require  a  solicitor  to  produce  all  Ms  books, 
refusal  of  a  witness  to  appear  is  a  contempt  papers,  &c.,  relating  to  all  dealings  be- 
for  which  the  House  may  cause  him  to  tween  him  and  a  party  to  the  suit  during 
he  arrested  and  brought  before  the  House  ;  a  term  of  thirty-three  years  is  too  vague, 
and  for  a  refusal  to  testify  he   may  be  Lee  v.  Angas,  L.  R.  2  Eq.  59. 


CHAP.    I.]  ATTENDANCE   OF   WITNESSES.  427 

different  States  of  the  Union  are  not  perfectly  similar,  any  fur- 
ther pursuit  of  this  part  of  the  subject  would  not  comport  with 
the  design  of  this  work.*  And  the  same  observation  may  be  ap- 
plied, once  for  all,  to  all  points  of  practice  in  matters  of  evidence 
which  arc  regulated  by  local  law. 

§  310.  In  civil  cases.  In  order  to  secure  the  attendance  of  a 
witness  in  civil  cases,  it  is  requisite,  by  Stat.  5,  Eliz.  c.  9,  that  he 
"have  tendered  to  him,  according  to  his  countenance  or  calling, 
his  reasonable  charges. "  Under  this  statute  it  is  held  necessary, 
•  in  England,  that  his  reasonable  expenses,  for  going  to  and  re- 
turning from  the  trial,  and  for  his  reasonable  stay  at  the  place, 
be  tendered  to  him  at  the  time  of  serving  the  subpoena  ;  and,  if 
he  appears,  he  is  not  bound  to  give  evidence  until  such  charges 
are  actually  paid  or  tendered, ^  (a)  unless  he  resides,  and  is  sum- 
moned to  testify,  within  the  weekly  bills  of  mortality;  in  which 
case  it  is  usual  to  leave  a  shilling  with  him  upon  the  deliveiy  of 
the  subpoena  ticket.  These  expenses  of  a  witness  are  allowed 
pursuant  to  a  scale,  graduated  according  to  his  situation  in 
life. 2  (6)  But  in  this  country  these  reasonable  expenses  are  set- 
tled by  statutes,  at  a  fixed  sum  for  each  day's  actual  attendance, 
and  for  each  mile's  travel,  from  the  residence  of  the  witness  *((?) 

*  The  English  practice  is  stated  in  2  Tidd's  Prac.  (9th  ed.),  805-809  ;  1  Stark.  Evid. 
77  et  seq.  ;   3  Chitty's  Gen.  Prac.  828-834  ;    2  Phil.   Evid.   370-392.     The  American 


part 
293  ;  Howe's  Practice,  228-230. 

1  Newton  v.  Harland,  9  Dowl.  16. 

2  2  Phil.  Evid.  pp.  375,  376;  2  Tidd's  Pr.  (9th  ed.)p.  806.  An  additional  compen- 
sation, for  loss  of  time,  was  formerly  allowed  to  medical  men  and  attorneys  ;  but  that 
rule  is  now  exploded.  But  a  reasonable  compensation  paid  to  a  foreign  witness,  who 
refused  to  come  without  it,  and  whose  attendance  was  essential  in  the  cause,  will  in 
general  be  allowed  and  taxed  against  the  losing  party.  See  Lonergan  v.  Royal  Ex- 
change Assurance,  7  Ring.  725  ;  s.  c.  Id.  729  ;  Collins  v.  Godefroy,  1  B.  &  Ad.  950. 
There  is  also  a  distinction  between  a  witness  to  facts,  and  a  witness  selected  by  a  party 
to  give  his  opinion  on  a  subject  with  which  he  is  peculiarly  conversant  from  his  employ- 
ment in  life.  The  former  is  bound,  as  a  matter  of  public  duty,  to  testify  to  facts  within 
his  knowledge.  The  latter  is  under  no  such  obligation  ;  and  the  party  who  selects 
him  must  pay  him  for  his  time,  before  he  will  be  compelled  to  testify.  Webb  v.  Page, 
1  C.  &  K.  23. 

8  It  has  been  held  that  for  witnesses  brought  from  another  State,  no  fees  can  be 

(a)  Atwood  V.  Scott,  99  Mass.  177.  When,  by  statute,  a  party  may  be  sum- 
When  it  is  the  practice  for  the  pirty  who  moned  as  a  witness  by  another  party  to 
summons  a  witness  to  produce  him  for  the  suit,  he  is  entitled  to  witness  fees, 
cross-examination  if  he  is  notified  that  Penny  v.  Brink,  75  N.  C.  68. 
the  other  side  wishes  to  cross-examine  (h)  The  amount  of  the  witness  fees  are 
(otherwise  the  witness  not  appearing  generally  regulated  by  statute.  On  this 
again),  the  fees  for  this  second  appearance  subject  see  Re  Corwin,  6  Abb.  N.  Cas.  437. 
of  the  witness  must  be  paid  by  the  party  Lagrosse  v.  Curran,  10  Phila.  (Pa.)  140. 
who  originally  summoned  him,  not  the  (c)  See  also  Gunnison  v.  Gunnison,  41 
party  cross-examining  him.  Richards  w.  N.  H.  121.  No  travel  fee  for  a  w^itness  in 
Goddard   L.  R.  17  Eq.  238.  a  Federal  court  can  be  taxed  for  more  than 


428  LAW   OF   EVIDENCE.  [PART   III. 

to  the  place  of  trial  and  back,  without  regard  to  the  employment 
of  the  witness,  or  his  rank  in  life.  The  sums  paid  are  not  alike 
in  all  the  States,  but  the  principle  is  believed  to  be  everywhere 
the  same,  (d)  In  some  States,  it  is  sufficient  to  tender  to  the 
witness  his  fees  for  travel,  from  his  home  to  the  place  of  trial, 
and  one  day's  attendance,  in  order  to  compel  him  to  appear  upon 
the  summons;  but  in  others,  the  tender  must  include  his  fees  for 
travel  in  returning.*  Neither  is  the  practice  uniform  in  this 
country,  as  to  the  question  whether  the  witness,  having  appeared, 
is  bound  to  attend  from  day  to  day,  until  the  trial  is  closed,  with- 
out the  payment  of  his  daily  fees;  but  the  better  opinion  seems 
to  be,  that  without  payment  of  his  fees,  he  is  not  bound  to  submit 
to  an  examination,  ^(e) 

taxed  for  travel,  beyond  the  line  of  the  State  in  which  the  cause  is  tried.  Howland 
0.  Lenox,  4  Johns.  311  ;  Newman  v.  Atlas  Ins.  Co.,  Phillip's  Digest,  113  ;  Melvin  v. 
Whiting,  13  Pick.  190  ;  White  v.  Judd,  1  Met.  293.  But  the  reasons  for  these  decisions 
are  notltated,  nor  are  they  very  easily  perceived.  In  England,  the  early  practice  was 
to  allow  all  the  expenses  of  bringing  over  foreign  witnesses,  incurred  in  good  faith  ;  but 
a  larcfe  sum  being  claimed  in  one  case,  an  order  was  made  in  the  Common  Pleas  that 
no  costs  should  be  allowed,  except  while  the  witness  was  within  the  reach  of  process. 
Ha^edorn  v.  Allnut,  3  Taunt.  379.  This  order  was  soon  afterwards  rescinded,  and  the 
old°practice  restored.  Cotton  v.  Witt,  4  Taunt.  55.  Since  which  the  uniform  course, 
both  in  that  court  and  in  B.  R.,  has  been  to  allow  all  the  actual  expenses  of  procuring 
the  attendance  of  the  witness,  and  of  his  return.  Tremain  v.  Barrett,  6  Taunt.  88  :  2 
Tidd's  Pr.  814  ;  2  Phil.  Evid.  37(3  (9th  ed.>.  And  see  Hutchins  v.  State,  8  Mo. 
288 

*  The  latter  is  the  rule  in  the  courts  of  the  United  States.  See  Conkling's  Practice, 
pp.  265,  266  ;  T.L.  U.  S.  1799,  c.  125  [19]  §  6,  vol.  i.  p.  571  (Story's  ed.)  [1  U.  S. 
Stat,  at  Large  (L.  &  B.'s  ed.),  p.  626]. 

5  1  Paine  &  Duer's  Practice,  497  ;  Hallet  v.  Mears,  13  East,  15,  16,  n.  (a);  Mattocks 
V.  Wheatou,  10  Vt.  493. 

one  hundred  miles  from  the  place  of  trial,  Mut.  Soc,  L.  R.  21  Ch.  D.  831,  decides 
unless  the  whole  distance  is  within  the  that  an  auctioneer  as  a  professional  wit- 
district  where  the  case  is  brought,  since  ness  is  entitled  to  refuse  to  testify  until 
the  limit  of  the  court's  power  to  summon  his  fees  are  paid,  including  expenses  and 
witnesses  ends  at  that  distance.  Anony-  compensation  for  time,  even  after  he  is 
mous.  5  Blatchf.  C.  C.  134  ;  The  Leo,  5  sworn.  To  the  same  effect,  Clark  v.  Gill, 
Bened.  486.     So  when  suit  is  brought  in  1  K.  &  J.  19. 

a  State  court,  no  mileage  fees  can  be  {e)  In  New  Hampshire  (Bliss  ».  Bmin- 
chart'ed  beyond  the  line  of  the  State,  for  a  ard,  42  N.  H.  255),  it  is  said  the  witnes.s,  at 
simikr  reason.  Kingtield  v.  Pullen,  54  the  end  of  each  day,  has  the  right  to  return 
Me.  398  ;  Crawford  v.  Abraham,  2  Oreg.  home,  if  his  fees  for  the  next  day  are  not 
163.  Contra,  Dutcher  v.  Justices,  38  Ga,  paid  upon  application  to  the  party  sum- 
2i4_  moning  him  or  to  his  attorney.  When 
(d)  The  fees  of  experts  are  considerably  witnesses  attend  in  several  cases,  which 
larger  than  those  of  ordinary  witnesses,  are  tried  together,  the  taxation  of  their 
It  has  been  held  that  the  expert  may  re-  fees  in  each  of  the  cases  depends  upon  the 
fuse  to  testify  as  to  his  opinion  on  matters  good  faith  of  the  party  procuring  their  at- 
of  science  or  skill  till  these  fees  have  been  tendance,  and  the  reasonableness  of  his 
paid  (Buchman  v.  State,  59  Ind.  1  ;  Dills  conduct.  It  is  not  impossible  that  the 
V.  State,  Id.  15),  and  may  refuse  to  testify  witness  may  have  both  travel  and  attend- 
as  to  his  opinion  at  all.  Ex  parte  Roelker,  ance  allowed  in  each  case,  but  in  Barker  v. 
1  Sprag.  276.  In  Ex  parte  Dement,  53  Parsons,  145  Mass.  203,  it  was  held  that, 
Ala.  389,  however,  such  conduct  was  held  as  all  the  cases  were  tried  at  the  same 
a  contempt  of  court,     ifc,  Working  Men's  time,    the   witnesses   should    be    allowed 


CHAP.    I.]  ATTENDANCE   OP   WITNESSES.  429 

§  311.  In  criminal  cases.  Ill  criminal  cascs,  no  tcndor  of  fees 
is  in  general  necessary,  on  the  part  of  the  government,  in  order 
to  compel  its  witnesses  to  attend ;  it  being  the  duty  of  every  citi- 
zen to  obey  a  call  of  that  description,  and  it  being  also  a  case,  in 
which  he  is  himself,  in  some  sense,  a  party. ^  But  his  fees  will 
in  general  be  finally  paid  from  the  public  treasury.  In  all  such 
cascs,  the  accused  is  entitled  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor. ^  The  payment  or  tender  of  fees, 
however,  is  not  necessary  in  any  case,  in  order  to  secure  the 
attendance  of  the  witness,  if  he  has  waived  it;  the  provision 
being  solely  for  his  benefit. ^  But  it  is  necessary  in  all  civil 
cases,  that  the  witness  be  summoned,  in  order  to  compel  him  to 
testify ;  for,  otherwise,  he  is  not  obliged  to  answer  the  call,  though 
he  be  present  in  court;  but  in  criminal  cases,  a  person  present  in 
court,  though  he  have  not  been  summoned,  is  bound  to  answer.*  (a) 
And  where,  in  criminal  cascs,  the  witnesses  for  the  prosecution 
are  bound  to  attend  ui)on  the  summons,  without  the  payment  or 
tender  of  fees,  if,  from  poverty,  the  witness  cannot  obey  the  sum- 
mons, he  will  not,  as  it  seems,  be  guilty  of  a  contempt.^  (5) 

§  312.  When  witness  is  in  custody.'  If  a  witness  is  in  Custody, 
or  is  in  the  military  or  naval  service,  and  therefore  is  not  at 
liberty  to  attend  without  leave  of  his  superior  officer,  which  he 
cannot  obtain,  he  may  be  brought  into  court  to  testify  by  a  writ 
of  habeas  corpus  ad  testificandum.  This  writ  is  grantable  at  dis- 
cretion, on  motion  in  open  court,  or  by  any  judge,  at  chambers, 
who  has  general  authority  to  issue  a  writ  of  habeas  corpus.     The 


1  In  New  York,  witnesses  are  bound  to  attend  for  the  State,  in  all  criminal  prose- 
cutions, and  for  the  defendant,  in  any  indictment,  without  any  tender  or  payment  of 
fees.  2  Rev.  Stat.  p.  729,  §  65  ;  Chamberlain's  Case,  4  Cowen,  49.  In  Pennsylvania, 
the  person  accused  may  have  process  for  his  witnesses  before  indictment.  United 
States  V.  Moore,  Wallace,  C.  C.  23.  In  Massachusetts,  in  capital  cases,  the  prisoner 
may  have  process  to  bring  in  his  witnesses  at  the  expense  of  the  Commonwealth. 
William's  Case,  13  Mass.  501.  In  England,  the  court  has  jiower  to  order  the  payment 
of  fees  to  witnesses  for  the  crown,  in  all  cases  of  felony  ;  and.  in  some  cases  to  allow 
further  compensation.  Stat.  18  Geo.  III.  c.  19  ;  Phil.  &  Am.  on  Evid.  788,  789  ;  2 
Phil.  Evid.  380  ;  1  Stark.  Evid.  82,  83. 

^  Const.  U.  S.  Amendments,  art.  6. 

3  Goodwin  V.  West,  Cro.  Car.  522,  540. 

*  Rex  V.  Sadler,  4  C.  &  P.  218  ;  lilackburn  v.  Hargreave,  2  Lewin,  Cr.  Gas.  259. 

6  2  Phil.  Evid.  379,  383. 

travel  in  one  and  attendance  in  all.     Even  brought  by  two  plaintiffs  against  the  same 

in  States  where  there  are  statutes  against  defendant.     Vernon,   Greensburg,  &c.  R. 

the    taxing   of  constructive  fees  for  wit-  R.  Co.  v.  Johnson,  108  Ind.  128. 

nesses,  there  may  be  cascs  where  the  wit-  (a)  Robinson  v.  Trull,  4  Cash.  (Mass.) 

ness  may  get  attendance  fees  for  two  cases  249. 

at  the  same  time,  as,  for  instance,  ^dien  (h)  United  States  v.  Darling,  4  Biss. 

two  suits  on  the  same  subject-matter  are  C.  0.  509. 


430  LAW   OF   EVIDENCE.  [PART   III. 

application,  in  civil  cases,  is  made  upon  affidavit,  stating  the 
nature  of  the  suit,  and  the  materiality  of  the  testimony,  as 
the  party  is  advised  by  his  counsel  and  verily  believes,  together 
with  the  fact  and  general  circumstances  of  restraint,  which  call 
for  the  issuing  of  the  writ;  and  if  he  is  not  actually  a  prisoner, 
it  should  state  his  willingness  to  attend.^  (a)  In  criminal  cases, 
no  affidavit  is  deemed  necessary  on  the  part  of  the  prosecuting 
attorney.  The  writ  is  left  with  the  sheriff,  if  the  witness  is  in 
custody ;  but  if  he  is  in  the  military  or  naval  service,  it  is  left 
with  the  officer  in  immediate  command ;  to  be  served,  obeyed,  and 
returned,  like  any  other  writ  of  habeas  corpus.^  If  the  witness 
is  a  prisoner  of  war,  he  cannot  be  brought  up  but  by  an  order 
from  the  Secretary  of  State ;  but  a  rule  may  be  granted  on  the 
adverse  party,  to  show  cause  why  he  should  not  consent  either  to 
admit  the  fact,  or  that  the  prisoner  should  be  examined  upon 
interrogatories.^ 

§  313.  Recognizance.  There  is  another  method  by  which  the 
attendance  of  witnesses  for  the  government,  in  criminal  cases,  is 
enforced,  namely,  by  recognizance.  This  is  the  usual  course  upon 
all  examinations,  where  the  party  accused  is  committed,  or  is 
bound  over  for  trial.  And  any  witness,  whom  the  magistrate 
may  order  to  recognize  for  his  own  appearance  at  the  trial,  if  he 
refuses  so  to  do,  may  be  committed,  (b)  Sureties  are  not  usually 
demanded,  though  they  may  be  required,  at  the  magistrate's  dis- 
cretion; but  if  they  cannot  be  obtained  by  the  witness,  when 
required,  his  own  recognizance  must  be  taken.* 

§  314.  Time  of  service  of  subpoena.  The  service  of  a  subpoena 
upon  a  witness  ought  always  to  be  made  in  a  reasonable  time  be- 
fore trial,  to  enable  him  to  put  his  affairs  in  such  order,  that  his 
attendance  upon  the  court  may  be  as  little  detrimental  as  possible 

1  Rex  V.  Roddani,  Cowp.  672. 

2  2  Phil.  Evid.  374,  375  ;  Conkling's  Pr.  264  ;  1  Paine  &  Duer's  Pr.  503,  504 ;  2 
Tidd's  Pr.  809. 

3  Furly  V.  Newnham,  2  Doug.  419. 

*  2  Hale,  P.  C.  282  ;  Bennet  v.  Watson,  3  M.  &  S.  1  ;  1  Stark.  Evid.  82  ;  Roscoe's 
Crim.  Evid.  p.  87  ;  Evans  v.  Rees,  12  Ad.  &  El.  55. 

{n)  Thongli  the  process  by  which  a  be  unjust  and  oppressive  and  against  corn- 
prisoner  is  brought  before  the  court  as  a  mon  right  to  commit  a  witness  to  jail  in 
witness  may  be  defective,  yet  when  the  delimit  of  bail,  without  some  proof  of  his 
witness  is  in  court,  by  virtue  of  such  pro-  intent  not  to  appear  at  the  trial, 
cess,  he  may  be  compelled  to  answer.  Max-  In  California,  by  statute,  the  witness 
wellw.  Rives,  11  Nev.  213.  for  the  State  in  a  criminal  case,  if  unable 

{b)  Laws  of  U.  S.  1846,  c.  98,  §  7  (9  to   procure    sureties,    may   be   discharged 

Stat,    at   Large,   L.    &  B.'s  ed.    73).     In  from  committal  and  his  deposition  taken. 

SUte  V.  Grace,  18  Minn.  398,  it  is  said  to  People  v.  Lee,  49  Cal.  37. 


CHAP.    I.]  ATTENDANCE    OP    WITNESSES.  431 

to  his  interest.^  On  this  principle,  a  summons  in  the  morning  to 
attend  in  the  afternoon  of  the  same  day  has  been  held  insufficient, 
though  the  witness  lived  in  the  same  town,  and  very  near  to  the 
place  of  trial.  In  the  United  States,  the  reasonableness  of  the  time 
is  generally  fixed  by  statute,  requiring  an  allowance  of  one  day 
for  every  certain  number  of  miles  distance  from  the  witness's 
residence  to  the  place  of  trial;  and  this  is  usually  twenty  miles. 
But  at  least  one  day's  notice  is  deemed  necessary,  however  incon- 
siderable the  distance  may  be.^(a) 

§  315.  Manner  of  service.  As  to  the  manner  of  service,  in  order 
to  compel  the  attendance  of  the  witness,  it  should  be  personal, 
since,  otherwise,  he  cannot  be  chargeable  with  a  contempt  in  not 
appearing  upon  the  summons.^  The  subpoena  is  plainly  of  no 
force  beyond  the  jurisdictional  limits  of  the  court  in  which  the 
action  is  pending,  and  from  which  it  issued ;  but  the  courts  of  the 
United  States,  sitting  in  any  district,  are  empowered  by  stat- 
ute,^ (6)  to  send  subpoerias  for  witnesses  into  any  other  district, 
provided  that,  in  civil  causes,  the  witness  do  not  live  at  a  greater 
distance  than  one  hundred  miles  from  the  place  of  trial.^ 

§  316.  Protection  from  arrest.  Witnesses  as  well  as  parties 
are  protected  from  arrest  while  going  to  the  place  of  trial,  while 
attending  there  for  the  purpose  of  testifying  in  the  cause,  and 
while  returning  home,  eundo,  morando,  et  redeundo.^    A  subpoena 

5  Hammond  v.  Stewart,  1  Stra.  510. 

6  Sims  V.  Kitchen,  .5  Esp.  46  ;  2  Tidd's  Pr.  806  ;  3  Cliitty's  Gen.  Pr.  801  ;  1  Paine 
&  Duer's  Pr.  497. 

1  In  some  of  the  United  States,  as  well  as  in  England,  a  subpoena  ticket,  which  is  a 
copy  of  the  writ,  or  more  properly  a  statement  of  its  substance,  duly  certified,  is  de- 
livered to  the  witness,  at  the  same  time  that  the  writ  is  shown  to  liim.  1  Paine  & 
Duer's  Pr.  496  ;  1  Tidd's  Pr.  806  ;  1  Stark.  Ev.  77  ;  Phil.  &  Am.  on  Evid.  781,  78'2  ; 
2  Phil.  Evid.  373.  But  the  general  practice  is  believed  to  be,  either  to  show  the  sub- 
poena to  the  witness,  or  to  serve  him  with  an  attested  copy.  The  writ,  being  directed 
to  the  witness  himself,  may  be  shown  or  delivered  to  him  by  a  private  person,  and  the 
service  proved  by  affidavit ;  or  it  may  be  served  by  the  sheriffs  officer,  and  jiroved  by 
his  official  return. 

2  Stat.  1793,  c.  66  [22],  1  LL.  U.  S.  p.  312  (Story's  ed.)  [1  U.  S.  Stats,  at  Large 
(L.  &B.'sed.),  335]. 

8  In  most  of  the  States,  there  are  provisions  by  statute  for  taking  the  depositions 
of  witnesses  who  live  more  than  a  specified  number  of  miles  from  the  ])lace  of  trial. 
But  these  regulations  are  made  for  the  convenience  of  the  parties,  and  do  not  absolve 
the  witness  from  the  obligation  of  personal  attendance  at  the  court,  at  whatever  dis- 
tance it  be  holden,  if  he  resides  within  its  jurisdiction,  and  is  duly  summoned.  In 
Georgia,  the  depositions  of  females  may  be  taken  in  all  civil  cases.  Rev.  St.  1815  (by 
Hotchkiss),  p.  586. 

*  This  rule  of  protection  was  laid  down,  upon  deliberation,  in  the  case  of  Meekins  v. 
Smith,  1  H.  Bl.  636,  as  extending  to  "all  persons  who  had  xelation  to  a  suit,  which 

{a)  Scammon  v.  Scammon,  33  N.  H.  ruptcy  also.  Ec  Woodward,  12  15ankr. 
52.  Reg.  297. 

{b)  This  applies  to  proceedings  in  bank- 


432  LAW   OF   EVIDENCE.  [PART   III. 

is  not  necessary  to  protection,  if  the  witness  have  consented  to  go 
without  one ;  nor  is  a  writ  of  protection  essential  for  this  pur- 
pose ;  its  principal  use  being  to  prevent  the  trouble  of  an  arrest 
and  an  application  for  discharge,  by  showing  it  to  the  arresting 
officer;  and  sometimes,  especially  where  a  writ  of  protection  is 
shown,  to  subject  the  officer  to  punishment,  for  contempt.  ^  (a) 
Preventing,  or  using  means  to  prevent,  a  witness  from  attending 
court,  who  has  been  duly  summoned,  is  also  punishable  as  a  con- 
tempt of  court.  3  On  the  same  principle,  it  is  deemed  as  a  con- 
tempt to  serve  process  upon  a  witness,  even  by  summons,  if  it  be 
done  in  the  immediate  or  constructive  presence  of  the  court  upon 
which  he  is  attending;*  though  any  service  elsewhere  without 
personal  restraint,  it  seems,  is  good.  But  this  freedom  from 
arrest  is  a  personal  privilege,  which  the  party  may  waive ;  and 
if  he  willingly  submits  himself  to  the  custody  of  the  officer,  he 
cannot  afterwards  object  to  the  imprisonment,  as  unlawful.^ 
The  privilege  of  exemption  from  arrest  does  not  extend  through 
the  whole  sitting  or  term  of  the  court  at  which  the  witness  is 
summoned  to  attend ;  but  it  continues  during  the  space  of  time 
necessarily  and  reasonably  employed  in  going  to  the  place  of 
trial,  staying  there  until  the  trial  is  ended,  and  returning  home 
again.  In  making  this  allowance  of  time,  the  courts  are  disposed 
to  be  liberal ;  but  unreasonable  loitering  and  deviation  from  the 
way  will  not  be  permitted. '^(6)     But  a  witness  is  not  privileged 

called  for  their  attendance,  whether  they  were  compelled  to  attend  by  process  or  not 
(in  which  number  bail  were  included),  provided  they  came  bona  fide."  Randall  v. 
(Uirney,  3  B.  &  Aid.  252  ;  Hurst's  Case,  4  Dall.  387.  It  extends  to  a  witness  coming 
from  abroad,  without  a  subpobna.  1  Tidd's  Pr.  195,  196  ;  Norris  v.  Beach,  2  Johns. 
294. 

2  Meekins  v.  Smith,  1  H.  Bl.  636  ;  Arding  v.  Flower,  8  T.  K.  536  ;  Norris  v.  Beach, 
2  Johns.  294  ;  United  States  v.  Edme,  9  S.  &  R.  147 ;  Sanford  v.  Chase,  3  Cowen,  381  ; 
Bours  V.  Tuckerman,  7  Johns.  538. 

3  Commonwealth  v.  Feely,  2  Virg.  Cns.  1. 

*  f 'ole  V.  Hawkins,  Andrews,  275 ;  Blight  v.  Fisher,  1  Peters,  C.  C.  41  ;  Miles  v. 
McCullough,  1  Binn.  77. 

5  Brown  v.  Getchell,  11  Mass.  11,  14  ;  Geyer  v.  Irwin,  4  Dall.  107. 

6  Meekins  v.  Smith,  1  H.  Bl.  636  ;  Randall  v.  Gnrnev,  3  B.  &  Aid.  252  ;  Willing- 
ham  V.  Matthews,  2  Marsh.  57  ;  Lightfoot  v.  Cameron,  2  W.  Bl.  1113  ;  Selby  v.  Hills, 

(re)  But  see  Ex  -parte  McNeil,  3  Mass.  merous  authorities  on  this  subject)  ;  Per- 
288,  and  6  Mass.  264,  contra.  The  i)rin-  son  v.  Grier,  66  N.  Y.  124  ;  Grafton  v. 
ciple  of  this  rule  has  been  recognized  fully  "Weeks,  7  Daly  (N.  Y.),  523;  May  v. 
by  the  courts.  Com.  v.  Huggeford,  9  Pick.  Shuraway,  16  Gray  (Mass. ),  86. 
(Mass.)  257.  So,  when  a  witness  volun-  The  same  privilege  is  extended  to  a  wit- 
tarily  comes  into  a  State  from  the  State  ness  testifying  before  a  legislative  commit- 
where  he  resides,  in  order  to  testify  in  a  tee  (Thompson's  Case,  122  Mass.  428),  or 
case,  he  is  under  the  protection  of  this  before  Congress  or  one  of  its  committees, 
rule,  though  he  could  not  have  been  com-  Wilder  v.  Welsh,  1  MacArthur,  566. 
pelled  to  come.  Jones  i;.  Knauss,  31  N.  J.  (b)  Chaffee  v.  Jones,  19  Pick.  (Mas3.) 
Eq^.  211  (where  a  very  full  note  gives  nu-  260. 


CHAP.    1.]  ATTENDANCE    OF   WITNESSES.  433 

from  arrest  by  his  bail,  on  his  return  from  giving  evidence;  and 
if  he  has  absconded  from  his  bail,  he  may  be  retaken,  even  dur- 
ing his  attendance  at  court.  ^ 

§  317.  Same  subject.  This  privilege  is  granted  in  all  cases 
where  the  attendance  of  the  party  or  witness  is  given  in  any 
matter  pending  before  a  laivful  tribunal  having  jurisdiction  of  the 
cause.  Thus  it  has  been  extended  to  a  party  attending  on  an 
arbitration,  under  a  rule  of  court ;  ^  or  on  the  execution  of  a  writ 
of  inquiry; 2  to  a  bankrupt  and  witnesses,  attending  before  the 
commissioners,  on  notice;'^  and  to  a  witness  attending  before  a 
magistrate,  to  give  his  deposition  under  an  order  of  court.*  (a) 

§  318.  Same  subject.  If  a  person  thus  clearly  entitled  to  privi- 
lege is  unlawfully  arrested^  the  court,  in  which  the  cause  is  to  be, 
or  has  been,  tried,  if  it  have  power,  will  discharge  him  upon 
motion :  and  not  put  him  to  the  necessity  of  suing  out  process 
for  that  purpose,  or  of  filing  common  bail.  But  otherwise,  and 
where  the  question  of  privilege  is  doubtful,  the  court  will  not 
discharge  him  out  of  custody  upon  motion,  but  will  leave  him  to 
his  remedy  by  writ ;  and  in  either  case  the  trial  will  be  put  off 
until  he  is  released.^  (6) 

8  Bing.  166  ;  Hurst's  Case,  4  Dall.  387  ;  Smythe  v.  Banks,  4  Ball.  329  ;  1  Tidd's  Pr. 
195-197  ;  Pliil.  &  Am.  on  EviJ.  782,  783;  2  Phil.  Evid.  374. 
7  1  Tidd's  Pr.  197  ;  Ex  parte  Lyne,  3  Stark.  470. 

1  Spence  v.  Stuart,  3  East,  89  ;  Sanford  v.  Chase,  3  Cowen,  381. 

2  Walters  v.  Rees,  4  J.  B.  Moore,  34. 

3  Arding  v.  Flower,  8  T.  R.  534  ;  1  Tidd's  Pr.  197. 
*  Ex  part'  Ednie,  9  S.  «&  R.  147. 

5  1  Tidd's  Pr.  197,  216;  2  Paine  &  Duer's  Pr.  6,  10  ;  Hurst's  Case,  4  Dall.  387  ; 
Ex  parte  Edme,  9  S.  &  R.  147  ;  Sanford  v.  Chase,  3  Cowen,  381. 

(a)  Or  commissioners  on  the  estate  of  come  into  this  State  as  a  witness  to  give 

an  insolvent  person,  deceased.     Wood  v.  evidence  in  a  cause  here,  is  exempt  from 

Neale,  5  Gray  (Mass.),  538.  service  with  process  for  the  commencement 

(6)  Seavert;.  Robinson,  3  Duer  (N.  Y.),  of  a  civil  action  against  him.     This  privi- 

622.     The  reason  for  this  rule  regarding  lege  protects  him  in  coming,  staying,  and 

witnesses,  as  generally  given,  is  that,  as  in  returning,  provided  he  acts  Ixma  fide, 

they  cannot  be  compelled  to  leave  their  and  without  unreasonable  dela}'.     Sherman 

own  State,  thoy  should,  as  far  as  possible,  v.  (Jundlach,    37   Minn.   118  ;    Person   v. 

be  encouraged  to  voluntarily  come  into  the  Grier,  66  N.  Y.  124  ;    Matthews  v.  Tufts, 

State  where  tlie  action    is  pending,   and  87  N.   Y.   568  ;    In   re    Healey,    53    Vt. 

give  their  testimony  in  open  court.     And  694 ;    Mitchell  v.  Judge,   53   Mich.   541  ; 

this  protection  extends  as  well  to  parties  s.   c.  sub.  nom.,   Mitchell  v.   Wixon,    19 

as  to  witnesses,  and  therefore  a  party  to  a  N.    W.    Rep.    176  ;     Palmer    v.    Rowan, 

suit,  who  lives  in  another  State  and  comes  21    Neb.   452;    Comj)ton   v.   Wilder,    40 

to  defend  his  case  and  to  testify  therein  as  Ohio  St.  130  (summons  and  arrest)  ;  Mas- 

a  witness  in  his  own  behalf,  is  protected  sey  v.  Colville,  45  N.  J.  L.  119  ;   Uungaa 

from  arrest,  and  from  the  service  of  civil  v.  Miller,  37  N.  J.  L.   182.     The  reasons 

process.     AVilson  v.  Donaldson,  117   Ind.  for  exempting  a  non-resident  witness  from 

356  ;  Dungau  v.  Miller,  37  N.  J.   L.  182.  arrest  also  apply  in  favor  of  exempting 

And  further,   the  weiglit  of  authority  in  him  from  the  service  of  a  summons  in  a 

this  country  is  that  a  resident  of  another  civil   action.       Walpole   v.    Alexander,    3 

State  or  country,  who  has  in  good  faith  Doug.  45.     In  some  States  this  rule  has 

VOL.  I. —  28 


434  LAW   OF   EVIDENCE.  [PART   III. 

§  319.  Neglect  of  witness  to  attend  contempt.  Where  a  witness 
has  been  duly  summoned,  and  his  fees  paid  or  tendered,  or  the 
payment  or  the  tender  waived,  if  he  wilfully  neglects  to  appear, 
he  is  guilty  of  a  contempt  of  the  process  of  court,  and  may  be 
proceeded  ag^m^i  hy  an  attachment.'^ {a)  It  has  sometimes  been 
held  necessary  that  the  cause  should  be  called  on  for  trial,  the 
jury  sworn,  and  the  witness  called  to  testify  ;2  Init  the  better 
opinion  is,  that  the  witness  is  to  be  deemed  guilty  of  contempt, 
whenever  it  is  distinctly  shown  that  he  is  absent  from  court  with 
intent  to  disobey  the  writ  of  subpoena;  and  that  the  calling  of 
him  in  court  is  of  no  other  use  than  to  obtain  clear  evidence  of 
his  having  neglected  to  appear ;  but  that  is  not  necessary,  if  it 
can  be  clearly  shown  by  other  means  that  he  has  disobeyed  the 
order  of  court. '^(Z*)  An  attachment  for  contempt  i)roceeds  not 
upon  the  ground  of  any  damage  sustained  by  an  individual,  but 
is  instituted  to  vindicate  the  dignity  of  the  court  ;^  and  it  is  said, 
that  it  must  be  a  perfectly  clear  case  to  call  for  the  exercise  of 
this  extraordinary  jurisdiction.^  The  motion  for  an  attachment 
should  therefore  be  brought  forward  as  soon  as  possible,  and  the 
party  applying  must  show,  by  affidavits  or  otherwise,  that  the 
subpoena  was  seasonably  and  personally  served  on  the  witness,  that 
his  fees  were  paid  or  tendered,  or  the  tender  expressly  waived, 

1  Where  two  subpoenas  were  sensed  the  same  day,  on  a  witness,  requiring  his  atten- 
dance at  different  places,  distant  from  each  other,  it  was  held,  that  he  might  make  his 
election  which  he  will  obey.     Icehour  v.  Martin,  Busbee  (N.  C. ),  Law,  478. 

2  Bland  v.  Swafford,  Peake's  Cas.  60. 

3  Barrow  v.  Humphreys,  3  B.  &  Aid.  598  ;  2  Tidd's  Pr.  808. 

*  3  B.  &  Aid.  600,  per  Best,  J.  Where  a  justice  of  the  peace  has  power  to  bind  a 
witness  b}'  recognizance  to  apjiear  at  a  higher  court,  he  may  compel  his  attendance 
before  himself  for  that  purpose  by  attachment.  Bennet  v.  Watson,  3  M.  «&  S.  1  ;  2 
Hale,  P.  C.  282  ;  Evans  v.  Rees,  12  Ad.  &  El.  55  ;  siqyra,  §  313. 

5  Home  V.  Smith,  6  Taunt.  10,  11  ;  Garden  v.  Creswell,  2  M.  k  W.  319  ;  Rex  v. 
Lord  J.  Eussell,  7  Dowl.  693. 

been  extended  to  include  a  witness  who  witness  in  a  jurisdiction  other  than  that 

has  merely  come  from  another  county  in  in  which  they  are  ordinarily  suable.     Mit- 

the  same  State.     Christian   v.  Williams,  chell  v.  Judge,  53  Mich.  541  ;  Andrews  v. 

35  Mo.  App.  30.3.     Thus  in  New  York,  the  Lembeck,    4^6    Ohio   St.    38;    Palmer    v. 

practice  has  been,  where  the  party  claim-  Kowen,  21  Neb.  452.     In  Massey  v.  Col- 

ing   the   privilege  was  a  resident  of  the  ville,  45  N.  J.  L.  119,  the  privilege  was 

State,   to   discharge  him    from   arrest   on  secured  to  the  defendant  by  changing  the 

filing  common  bail,  and  where  he  was  a  venue  to  the  county  of  his  residence, 
non-resident  of  the  State,  to  set  aside  the  {a)  Gi-een  v.  State,  17  Fla.  669. 

service  of  the  process  absolutely.     Norris  (b)  The  sheriff's   return    on   a  writ  of 

V.  Beach,  2  Johns.  (N.  Y.),  294.     But  in  subprenn,  that  the  witness  wilfully  refused 

Person  v.  Grier,   QQ  N.  Y.  124,  this  dis-  to  permit  the  writ  to  be  served  on  him, 

tinction  was  not  approved,  and  in  other  and  refused,  with  knowledge  of  its  nature. 

States  the  protection  of  the  rule  extended  to  obey  it,  is  sufficient  proof  to  justify  the 

to  persons  resident  in  the  State  who  are  attachment  for  contempt.    Wilson  u.  State, 

served  with  civil  process  while  attending  57  Ind.  71. 
a  judicial  proceeding  as  a  party  or  as  a 


CHAP.    I.]  ATTENDANCE   OP   WITNESSES.  485 

and  that  everything  has  been  done  which  was  nocossary  to  call  for 
his  attendance.^  But  if  it  appears  that  the  testimony  of  the  wit- 
ness could  not  have  been  material,  the  rule  for  an  attachment 
will  not  be  granted."  (e)  If  a  case  of  palpable  contempt  is  shown, 
such  as  an  express  and  positive  refusal  to  attend,  the  court  will 
grant  an  attachment  in  the  first  instance;  otherwise,  the  usual 
course  is  to  grant  a  rule  to  show  cause.  ^  It  is  hardly  necessary 
to  add,  that  if  a  witness,  being  present  in  court,  refuses  to  be 
sworn  or  to  testify,  he  is  guilty  of  contempt.  In  all  cases  of 
contempt  the  punishment  is  by  fine  and  imprisonment,  at  the 
discretion  of  the  court.^(tZ) 

§  320.  Depositions.  If  the  witness  resides  abroad,  out  of  the 
jurisdiction,  and  refuses  to  attend,  or  is  sick  and  unable  to  attend, 
his  testimony  can  be  obtained  only  by  taking  his  deposition  before 
a  magistrate,  or  before  a  commissioner  duly  authorized  by  an 
order  of  the  court  where  the  cause  is  pending;  and  if  the  com- 
missioner is  not  a  judge  or  magistrate,  it  is  usual  to  require  that 
he  be  first  sworn.  ^  This  method  of  obtaining  testimony  from 
witnesses,  in  a  foreign  country,  has  always  been  familiar  in  the 
courts  of  admiralty ;  but  it  is  also  deemed  to  be  within  the  in- 
herent powers  of  all  courts  of  justice.  For,  by  the  law  of  na- 
tions, courts  of  justice,  of  different  countries,  are  bound  mutually 
to  aid  and  assist  each  other,  for  the  furtherance  of  justice ;  and 

6  2  Tidd's  Pr.  807,  808  ;  Garden  v.  Creswell,  2  M.  &  W.  319 ;  1  Paine  &  Doer's 
Pr.  499,  500  ;  Conkling's  Pr.  265. 

7  Dieas  v.  Lawson,  1  Cr.  M.  &  R.  934. 

8  Anon.,  Salk.  84  ;  4  Bl.  Comin.  286,  287  ;  Rex  v.  Jones,  1  Stra.  185  ;  Jackson  v. 
Mann,  2  Caines,  92  ;  Andrews  v.  Andrews,  2  Johns.  Gas.  109  ;  Thomas  v.  Cnniniins, 
1  Yeates,  1  ;  Conkling's  Pr.  265  ;  1  Paine  &  Duer's  Pr.  500  ;  2  Tidd's  Pr.  807,  808. 
The  party  injnred  by  the  non-attendance  of  a  witness  has  also  his  remedy,  b)''  action 
on  the  case  for  damages,  at  common  law  ;  and  a  further  remedy,  by  action  of  debt,  is 
given  by  Stat.  5  Eliz.  c.  9  ;  but  these  are  deemed  foreign  to  the  object  of  this  work. 

9  4  Bl.  Comm.  286,  287  ;  Kpx  v.  Beardmore,  2  Burr.  792. 

1  Ponsford  v.  O'Connor,  5  M.  &  W.  673  ;  Clay  v.  Stephenson,  3  Ad.  &  El.  807. 

(c)  So,  when  one  is  served  with  a  sub-  able  to  attend  to  some  other  matter  before 
pcena  duces  requiring  him  to  bring  certain  he  goes  to  court.  Jackson  v.  Seager,  2  D. 
public  documents  which  might  be  proved  &  L.  13.  If,  however,  it  appears  that  the 
hy  copies,  his  neglect  to  attend  will  not  jus-  witness  intentionally  defied  the  process  of 
tify  an  attachment  for  contempt.  Gorbett  the  court,  the  fact  that  his  evidence  would 
V.  Gibson,  16  Blatchf.  C.  C.  334.  If  the  have  been  immaterial  will  not  release  him 
■witness  has  reasonable  ground  to  believe  from  the  liability  to  attachment.  Chap- 
that  he  will  not  be  wanteil  at  the  trial  man  v.  Davis,  3  M.  &  G.  609  ;  Scholes  r. 
(Reg.  V.  Sloman,  1  Dowl.  618)  ;  or  has  Hilton,  10  M.  &  W.  16  ;  apparently  over- 
been  excused  by  the  attorney  of  the  party  ruling  Tinley  v.  Porter,  5  Dowl.  744,  and 
who  summoned  him  (Farrah  v.  Keat,  6  Taylor  v.  Willans,  4  M.  &  P.  59. 
Dowl.  470)  ;  or  is  too  poor  (2  Ph.  Ev.  (d)  If  several  witnesses  are  aiTested  for 
383),  —  no  attachment  will  lie.  But  a  contempt,  they  should  be  sentenced  sepa- 
wit*ness  who  is  duly  summoned  takes  the  rately  and  each  held  responsible  for  his 
risk  if  he  does  not  attend  so  early  as  he  own  costs  only.  Humphrey  v.  Knapp, 
might  under  the  summons,  thinking  to  be  41  Conn.  313. 


436  LAW    OP    EVIDENCE.  [PART   III. 

hence,  when  the  testimony  of  a  foreign  witness  is  necessary,  the 
court  before  which  the  action  is  pending  may  send  to  the  court 
within  whose  jurisdiction  the  witness  resides,  a  writ,  either 
patent  or  close,  usually  termed  a  letter  rogatory,  or  a  commis- 
sion sub  mutuce  vicisdtudinis  obtentu  ac  in  juris  subsidium,  from 
those  words  contained  in  it.  By  this  instrument,  the  court 
abroad  is  informed  of  the  pendency  of  the  cause,  and  the  names 
of  the  foreign  witnesses,  and  is  requested  to  cause  their  deposi- 
tions to  be  taken  in  due  course  of  law,  for  the  furtherance  of  jus- 
tice ;  with  an  offer,  on  the  part  of  the  tribunal  making  the  request, 
to  do  the  like  for  the  other,  in  a  similar  case,  (a)  The  writ  or 
commission  is  usually  accompanied  by  interrogatories,  filed  by 
the  parties  on  each  side,  to  which  the  answers  of  the  witnesses 
are  desired.  The  commission  is  executed  by  the  judge,  who 
receives  it,  either  by  calling  the  witness  before  himself,  or  by  the 
intervention  of  a  commissioner  for  that  purpose  ;  and  the  original 
answers,  duly  signed  and  sworn  to  by  the  deponent,  and  properly 
authenticated,  are  returned  with  the  commission  to  the  court 
from  which  it  issued. ^  The  court  of  chancery  has  always  freely 
exercised  this  power,  by  a  commission,  either  directed  to  foreign 

2  See  Clerk's  Praxis,  tit.  27  ;  Cunningham  v.  Otis,  1  Gall.  166  ;  Hall's  Adm.  Pr. 
part  2,  tit.  19,  cum.  add.,  and  tit.  27,  cum.  add.  pp.  37,  38,  55-60  ;  Oughton's  Onlo 
Judiciorum,  vol.  i.  pp.  150-152,  tit.  95,  96.  See  also  Id.  pp.  139-149,  tit.  88-94.  The 
general  practice,  in  the  foreign  continental  courts,  is,  to  retain  the  original  deposition, 
which  is  entered  of  record,  returning  a  copy  duly  authenticated.  But  in  the  common - 
law  courts,  the  production  of  the  original  is  generally  required.  Clay  v.  Stephenson, 
7  Ad.  &  El.  185.  The  practice,  however,  is  not  uniform.  See  an  early  instance  of 
letters  rogatory,  in  1  Roll.  Abr.  530,  pi.  15,  temp.  Ed.  I.  The  following  form  may  be 
found  in  1  Peters,  C.  C.  236,  n.  (a)  :  — 

United  States  of  America. 

District  of -,  ss. 

The  President  of  the  United  States,  to  any  judge  or  tribunal  having  jurisdiction  of 

civil  causes,  in  the  city  (or  province)  of ,  in  the  kingdom  of ,  Greeting  :  — 

Whereas  a  certain  suit  is  pemling  in  oiy Court  for  the  district  of 


SEAL.    1  ,  in  which  A.  B.  is  plaintiff  [or  claimant,  against  the  ship ],  and 

'  C.  D.  is  defendant,  and  it  has  been  suggested  to  us  that  there  are  witnesses 

residing  within  your  jurisdiction,  without  whose  testimony  justice  cannot  completely 
be  done  between  the  said  parties  ;  we  theri'fore  request  you  that,  in  furtherance  of 
justice,  you  will,  by  the  i)rop/er  and  usual  process  of  your  court,  cause  such  witness  or 
witnesses  as  shall  "be  named  or  pointed  out  to  you  by  the  said  parties,  or  either  of 
them,  to  appear  before  you,  or  some  competent  person  by  you  for  that  purpose  to  be 
appointed  and  authorized,  at  a  precise  time  and  place,  by  you  to  be  fixed,  and  there  to 
answer,  on  their  oaths  and  affirmations,  to  the  several  interrogatories  hereunto  annexed  ; 
and  that  you  will  cause  their  depositions  to  be  committed  to  writing,  and  returned  to 
us  under' cover,  duly  closed  and  sealed  up,  together  with  these  presents.  And  we 
shall  be  ready  and  willing  to  do  the  same  for  you  in  a  similar  case,  when  required. 
Witness,  &c. 

(a)  When  the  statutory  commission  to    it  to  letters  rogatory  to  the  foreign  court, 
examine  a  witness  in  a  "foreign  country     Fronde  v.  Froude,  3  Thomp.  &  C.  79. 
appsars  to  be  sufficient,  the  courts  jirefer 


CHAP.    I.]  ATTENDANCE   OF   WITNESSES.  437 

magistrates,  by  their  official  designation,  or  more  usually,  to  in- 
dividuals by  name;  which  latter  course,  the  peculiar  nature  of 
its  jurisdiction  and  proceedings  enables  it  to  induce  the  parties 
to  adopt,  by  consent,  where  any  doubt  exists  as  to  its  inherent 
authority.  The  courts  of  common  law  in  England  seem  not  to 
have  asserted  this  power  in  a  direct  manner,  and  of  their  own 
authority;  but  have  been  in  the  habit  of  using  indirect  means,  to 
coerce  the  adverse  party  into  a  consent  to  the  examination  of 
witnesses,  who  were  absent  in  foreign  countries,  under  a  commis- 
sion for  that  purpose.  These  means  of  coercion  were  various ; 
such  as  putting  off  the  trial,  or  refusing  to  enter  judgment,  as  in 
case  of  nonsuit,  if  the  defendant  was  the  recusant  party;  or  by  a 
stay  of  proceedings,  till  the  party  applying  for  the  commission 
could  have  recourse  to  a  court  of  e([uity,  by  instituting  a  new  suit 
there,  auxiliary  to  the  suit  at  law."^  But,  subsequently,  the 
learned  judges  appear  not  to  have  been  satisfied  that  it  was  jiroper 
for  them  to  compel  a  party,  by  indirect  means,  to  do  that  which 
they  had  no  authority  to  compel  him  to  do  directly;  and  they 
accordingly  refused  to  put  off  a  trial  for  that  purpose.*  This  in- 
convenience was  therefore  remedied  by  statutes  ^  which  provide 
that,  in  all  cases  of  the  absence  of  witnesses,  whether  by  sick- 
ness, or  travelling  out  of  the  jurisdiction,  or  residence  abroad, 
the  courts,  in  their  discretion,  for  the  due  administration  of  jus- 
tice, may  cause  the  witnesses  to  be  examined  under  a  commis- 
sion issued  for  that  purpose,  {b)     In  general,  the  examination  is 

^  Furly  V.  Newnhatn,  Doug.  419  ;  Anon.,  cited  in  Mostyn  v.  Fabrigas,  Cowp.  174  ; 
2  Tidd's  Pr.  770,  810. 

*  Calliaiid  v.  Vanghan,  1  B.  &  P.  210.  See  also  Grant  v.  Ridley,  5  Man.  &  Grang. 
203   per  Tindal,  C.  J.  ;  Macaulay  v.  Shackell,  1  Bligh,  N.  s.  119,  130,  131. 

^13  Geo.  III.  c.  63,  and  1  W.  IV.  c.  22  ;  Report  of  Commissioners  on  Chan- 
cery Practice,  p.  109  ;  Second  Report  of  Commissioners  on  Courts  of  Common  Law, 
pp.  23,  24. 

(b)  Such  a  commission  may  be  issued  27  W.  R.  225.     In  Castelli  v.  Groom,  12 

on  the  application  of  a  party  to  the  suit,  Eng.  Law  &  Eq.  426  (16  Jur.  888),  it  was 

either  nominal  or  real,   if  the  testimony  held   that  the  court  would   not   exercise 

sought  is  material  to  the  cause.     So,  when  its  discretion  to  grant  the  commission  to 

a  land  company  is  in  the  course  of  liqui-  examine   parties    to   the    action  under   1 

Nation,  an  application  of  persons  who  are  W.  I V.  c.  22,  unless  it  is  shown,   by  the 

substantially    mortgage    creditors    of  the  party  applying  therefor,  that  it  is  neces- 

cornpany,   to    have   issued    a   commission  sary  to  the  due  administration  of  justice  ; 

to  examine  witnesses  abroad,  to  test  the  and  that  it  is  not  enough  to  show  that  the 

accuracy  of  the  accounts  of  the  liquida-  plaintiff  or  defendant  lives  out  of  the  juris- 

tor,    was  granted,  as  an  incident  in  the  diction  of  the  court ;  Lord  Campbell,  C.  J., 

prosecution  of  the  accounts.     /;i  re  Impe-  saying,    "it  would  lead  to  most  vexatious 

rial    Land    Co.  of    Marseilles,  37    L.    T.  consequences,  if  constant  recourse   could 

Rep.    N.    s.    588.     The   commission    may  be  had  to  this  power  ;  and  it  would  be  so, 

issue  ex  parte,   on  affidavit  of  applicant  in  all  cases  where  the  j)artips  wished  to 

that  g'?'c«<  mco?iW9i?'c«ce  would  result  other-  avoid  the  process  of  examination    here." 

wise.     Spiller  v.  Paris  Skating  Rink  Co.,  Corapton,  J.,  said,  "The  only  question  in 


438  LAW   OF   EVIDENCE.  [PART   III. 

made  by  interrogatories,  previously  prepared;  but,  in  proper 
cases,  the  witnesses  may  be  examined  viva  voce,  by  the  com- 
missioner, who  in  that  case  writes  down  the  testimony  given; 
or  he  may  be  examined  partly  in  that  manner  and  i)artly  upon 
interrogatories.*^  (c) 

§  321.  Same  subject.  In  the  United  States,  provisions  have 
existed  in  the  statutes  of  the  several  States,  from  a  very  early 
period,  for  the  taking  of  depositions  to  be  used  in  civil  actions 
in  the  courts  of  law,  in  all  cases  where  the  personal  attendance 
of  the  witness  could  not  be  had,  by  reason  of  sickness  or  other 
inability  to  attend;  and  also  in  cases  where  the  witness  is  about 
to  sail  on  a  foreign  voyage,  or  to  take  a  journey  out  of  the  juris- 
diction, and  not  to  return  before  the  time  of  trial.  ^  (a)  Similar 
provisions  have  also  been  made  in  many  of  the  United  States  for 
taking  the  depositions  of  witnesses  in  perpetiia)7i  rei  memonam, 
without  the  aid  of  a  court  of  equity,  in  cases  where  no  action  is 
pending.  In  these  latter  cases  there  is  some  diversity  in  the 
statutory  provisions,  in  regard  to  the  magistrates  before  whom  the 
depositions  may  be  taken,  and  in  regard  to  some  of  the  modes  of 
proceeding,  the  details  of  which  are  not  within  the  scope  of  this 
treatise.  It  may  suffice  to  state  that,  generally,  notice  must  be 
previously  given  to  all  persons  known  to  be  interested  in  the  sub- 

6  2  Tidd's  Pr.  810,  811  ;  1  Stark.  Evid.  274-278  ;  Phil.  &  Am.  on  Evid.  jjp.  796- 
800  ;  2  Phil.  Evid.  386-388  ;  Pole  v.  Rocjers,  3  Bing.  N.  C.  780. 

1  See  Stat.  United  States,  1812,  c.  25,  §  3  [2  Stat,  at  Large  (L.  &  R.'sed.)  682].  In 
several  of  the  United  States,  depositions  may,  in  certain  contingencies,  be  taken  and 
used  in  criminal  cases.  See  Arkansas  Pvev.  Stat.  1837,  c.  44,  p.  238  ;  Indiana  Rev. 
Stat.  1843,  c.  r)4,  §§  39,  41 ;  Missouri  Rev.  Stat.  1845,  c.  138,  §§  11,  14  ;  Iowa  Rev. 
Code,  1851,  c.  190,  191. 

my  mind  was,  whether  it  was  discretion-  objected  to  on  the  trial  before  an  arbitra- 
arv  or  not  to  grant  the  rule,  but  that  has  tor.  Robinson  v.  Davies,  L.  R.  5  Q.  B.  D. 
been  settled  by  Duckett  v.  Williams,  1  Cr.  26  :  49  L.  J.  Q.  B.  218. 
&  J.  510,  s.  c.  2  C.  &  M.  348,  and  it  has  On  the  general  subject  of  commissions 
always  been  held  so.  Formerly  theie  was  to  take  testimony  outside  the  State,  see 
great  difficulty  in  getting  the  commis.siou  Mass.  Pub.  Stat.  c.  169,  §§  40-43.  When 
allowed,  and  a  plaintiff  could  only  get  it  upon  an  indictment  an  issue  of  fact  is 
by  resorting  to  equity.  To  remedy  this  joined,  the  court  may,  upon  application 
inconvenience  the  act  was  pas.sed."  For  of  the  defendant,  grant  a  commission  to 
cases  untler  this  statute,  see  Bolin  v.  Mel-  examine  any  material  witnesses  residing 
lidew,  5  Eng.  Law  &  Eq.  387  ;  10  C.  B.  out  of  the  State,  in  the  same  manner  as  in 
989.  civil  causes.  The  prosecuting  officer  may, 
(c)  The  court  will  suppress  such  inter-  if  he  sees  fit,  join  in  such  commission,  and 
rogatories  as  will  deter  the  witness  from  name  any  material  witnesses  to  be  exam- 
giving  evidence  before  the  commission,  ined  on  the  part  of  the  Commonwealth, 
after  the  commission  is  granted.  Stocks  Mass.  Pub.  Stat.  c.  213,  §  41. 
V.  Ellis,  L.  P.  8  Q.  B.  454,  42  L.  J.  Q.  B.  (n)  Depositions  so  taken  may  be  used 
241,  29  L.  T.  R.  N.  s.  267.  In  the.se  as  evidence  before  the  grand  juiy  as  well 
commissions  it  is  held  that  copies  of  as  the  petit  jury.  Reg.  i;.  Wilson,  12  Cox, 
written  documents,  if  allowed  without  Cr.  Ca.  622  ;  Reg.  v.  Gerrans,  13  Cox,  Cr. 
objection  in   the   commission,  cannot  be  Ca.  158. 


CHAP.    I.]  ATTENDANCE   OF   WITNESSES.  439 

ject-matter  to  which  the  testimony  is  to  relate ;  that  the  names 
of  the  persons  thus  summoned  must  be  mentioned  in  the  magis- 
trate's certihcate  or  caption,  a])pendcd  to  the  deposition;  and 
that  the  deposition  is  admissible  only  in  case  of  the  death  or 
incapacity  of  the  witness,*  and  against  those  only  who  have  had 
opportunity  to  cross-examine,  and  those  in  privity  with  them. 

§  322,  Same  subject.  In  regard,  also,  to  the  other  class  of 
depositions,  namely,  those  taken  in  civil  causes,  under  the  stat- 
utes alluded  to,  there  are  similar  diversities  in  the  forms  of  pro- 
ceeding. In  some  of  the  States,  the  judges  of  the  courts  of  law 
are  empowered  to  issue  commissions,  at  chambers,  in  their  dis- 
cretion, for  the  examination  of  witnesses  unable  or  not  compel- 
lable to  attend,  from  any  cause  whatever.  In  others,  though  with 
the  like  diversities  in  form,  the  party  himself  may,  on  ap))lica- 
tion  to  any  magistrate,  cause  the  deposition  of  any  witness  to  be 
taken,  who  is  situated  as  described  in  the  acts.  In  their  essen- 
tial features  these  statutes  are  nearly  alike ;  and  these  features 
may  be  collected  from  that  part  of  the  judiciary  Act  of  the  United 
States,  and  its  supplements,  which  regulate  this  subject.^  By 
that  act,  when  the  testimony  of  a  person  is  necessary  in  any  civil 
cause,  pending  in  a  court  of  the  United  States,  and  the  person 
lives  more  than  a  hundred  miles  ^  from  the  place  of  trial,  or  is 
boupd  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the  U  nited 
States,  or  out  of  the  district,  and  more  than  that  distance  from 
the  place  of  trial,  or  is  ancient,  or  very  infirm,  his  deposition  may 
be  taken  de  bene  esse,  before  any  judge  of  any  court  of  the  United 
States,  or  before  any  chancellor  or  judge  of  any  superior  court  of 
a  State,  or  any  judge  of  a  county  court,  or  court  of  common  pleas, 
or  any  mayor  or  chief  magistrate  of  any  city  ^  in  the  United  States, 
not  being  ot"  counsel,  nor  interested  in  the  suit;  provided  that  a 
notification  from  the  magistrate  before  whom  the  deposition  is  to 
be  taken,  to  the  adverse  party,  to  be  present  at  the  taking,  and 
put  interrogatories,  if  he  think  fit,  be  first  served  on  him  or  his 
attorney,  as  either  may  be  nearest,  if  either  is  within  a  hundred 
miles  of  the  place  of  caption ;  allowing  time,  after  the  service  of 
the  notification,  not  less  than  at  the  rate  of  one  day,  Sundays 

*  The  rule  is  the  same  in  equity,  in  regard  to  depositions  taken  de  bene  esse,  because 
of  the  sickness  of  the  witness.     Weguelin  v.  Weguelin,  2  Curt.  '263. 

1  Stat.  1789,  c.  20,  §  30  ;  Stat.  1793,  c.  22,  §  6  ;  1  U.  S.  Stats,  at  Large  (L.  &  B.'s 
ed.),  88,  335.  This  provision  is  not  peremptory  ;  it  only  enables  the  party  to  take  the 
deposition,  if  he  pleases.     Prouty  v.  Ruggles,  2  Story,  199  ;  4  Law  Rep.  161. 

2  These  distances  are  various  in  the  similar  statutes  of  the  States,  but  are  generally 
thirty  miles,  though  in  some  cases  less. 

3  In  the  several  States,  this  authority  is  generally  delegated  to  justices  of  the 
peace. 


440  LAW   OP   EVIDENCE.  [PART   III, 

exclusive,  for  every  twenty  miles'  travel.  V«)  The  witness  is  to 
be  carefully  examined  and  cautioned,  and  sworn  or  affirmed  to 
testify  the  whole  truth,  ^  and  must  subscribe  the  testimony  by  him 
given,  after  it  has  been  reduced  to  writing  by  the  magistrate,  or 
by  the  deponent  in  his  presence.  The  deposition  so  taken  must 
be  retained  by  the  magistrate,  until  he  shall  deliver  it  with  his 
own  hand  into  the  court  for  which  it  is  taken ;  or  it  must,  to- 
gether with  a  certificate  of  the  causes  or  reasons  for  taking  it,  as 
above  specified,  and  of  the  notice,  if  any,  given  to  the  adverse 
party,  be  by  the  magistrate  sealed  up,  directed  to  the  court,  and 
remain  under  his  seal  until  it  is  opened  in  court. ^     And  such 

*  Under  the  Judiciary  Act,  §  30,  there  must  be  personal  notice  served  upon  the  ad- 
verse party  ;  service  by  leaving  a  copy  at  his  place  of  abode  is  not  sufficient.  Carring- 
ton  V.  Stiioson,  1  Curtis,  Ot.  Ct.  437.  The  magistrate  in  his  return  need  not  state  the 
distance  of  the  place  of  residence  of  the  party  or  his  attorney  from  the  place  where  the 
deposition  was  taken.  Voce  v.  Lawrence,  4  McLean,  203.  To  ascertain  the  proper 
notice  in  point  of  time  to  be  given  to  the  adverse  party,  the  distance  must  be  reckoned 
fiom  the  party's  residence  to  the  place  of  caption.  Porter  v.  Pillsbury,  36  Me.  278. 
"Where  the  certificate  states  simply  that  the  adverse  party  was  not  personally  present, 
a  copy  of  the  notice,  and  of  the  return  of  service  thereof,  should  be  annexed  ;  and  if 
it  is  not  annexed,  and  it  does  not  distinctly  appear  that  the  adverse  party  was  pj-esent 
either  in  person  or  by  counsel,  the  deposition  will  be  rejected.  Carlton  v.  Patterson, 
9  Foster,  580  ;  see  also  Bowman  v.  Sanborn,  5  Id.  87. 

5  Where  the  State  statute  recjuires  that  the  deponent  shall  be  sworn  to  testify  to  the 
truth,  the  whole  truth,  &c.,  "  relating  to  the  cause  fur  tchich  the  dcpositum  is  to  be  taken," 
the  omission  of  the  magistrate  in  his  certificate  to  state  that  the  witness  was  so  sworn, 
makes  the  deposition  inadmissible  ;  and  the  defect  is  not  cured  by  the  addition  that 
"  after  aiviu^r  the  deposition  he  was  duly  sworn  thereto  according  to  law.  '(h)  Parsons 
V.  Huff°38  Maine,  137  ;  Brighton  v.  Walker,  35  Id.  132  ;  Fabyan  v.  Adams,  15  N.  H. 
371.  It  should  distinctly  appear  that  the  oath  was  administered  where  the  witness 
was  examined.     Erskine  v.  Boyd,  35  Me.  511.  . .      -4.  • 

6  The  mode  of  transmission  is  not  ])rescribed  by  the  statute  ;  and  in  practice  it  is 
usual  to  transmit  depositions  by  post,  whenever  it  is  most  convenient ;  in  which  case 
the  postages  are  included  in  the  taxed  costs.  Prouty  v.  Ruggles,  2  Story,  199  ;  5  Law 
Reporter,  161.  (c)     Care  must  be  taken,   however,  to  miorm  the  clerk,  by  a  proper 

(a)  It  is  held  that  notice  to  take  depo-  the  witness  to  swearing  (Home  v.  Haver- 

sitions   while   the   other  party  is   taking  hill,  113  Mass.   344)  ;  but  if  the  caption 

depositions  in   the  same  case  in  another  omits    the  words    "severally  make    oath 

place  is  insufficient,   as  he  cannot  be  in  and    say,"    or  "  make  oath,"    or   "  before 

both   places  at  once  (Collins  v.   Richart,  me,"  the  deposition  is  inadmissible.     Ex 

14  Bush  (Ky.),  621) ;  but  if  he  attends  at  parte  Torkington,  L.  R.  9  Ch.  298  ;  Allen 

both  places  by  counsel  it  waives  this  de-  v.  Taylor,  L.  R.  10  Eq.  52  ;  39  L.  J.  Ch. 

feet.     He  should  attend  at  one,  and  ob-  627  ;    Powers  v.  Shepherd,  21  ^.  H.   60. 

iect  to  the  depositions  taken  at  the  other  So   if    the  witness   is   sworn    to   tell   the 

(Latham  v.  Latham,  30  Gratt.  ( Va. )  307),  "truth  and  nothing  but  the  truth.       Call 

and  then  the  depositions  of  such  witnesses  v.  Perkins,  68  Me.  158.     If  a  form  of  oath 

as  he  was  unable  to  cross-examine  will  be  is   prescribed  by  statute,  it  must  be  fol- 

suppressed  by  the  court.    Cole  v.  Hall,  131  lowed,  or  the  deposition  will  be  inadmissi- 

Mass.  88.  ^^^'     Bacon  v.  Bacon,  33  Wis.  147. 

{b]  A  certificate  by  the  magistrate  that  (c)  Where,  by  statute,  the  magistrate  is 
the  witness  was  "duly  sworn"  is  suffi-  allowed  to  return  the  deposition  by  wia?/, 
cient  (Gulf  City  Insurance  Co.  I'.  Stephens,  this  does  not  do  away  the  common-law 
51  Ala.  121)  ; "so  if  the  caption  states  that  methods,  and  he  may  himself  hand  the 
the  witness  was  affirmed  by  him  accord-  deposition  to  the  clerk.  Andrews  r.  Par- 
ing to  law,  for  this  implies  an  objection  by  ker,  48  Tex.    94.     If  several  depositions 


CHAP.  I.] 


ATTENDANCE   OF   WITNESSES. 


441 


witnesses  may  be  compelled  to  appear  and  depose  as  above  men- 
tioned, in  the  same  manner  as  to  appear  and  testify  in  court.  ((/) 
Depositions,  thus  taken,  may  be  used  at  the  trial  l)y  either  party, 
whether  the  witness  was  or  was  not  cross-examined,"  (e)  if  it  shall 
appear,  to  the  satisfaction  of  the  court,  that  the  witnessj's  are 
then  dead,  or  gone  out  of  the  United  States,^  or  more  than  a  hun- 
dred miles  from  the  place  of  trial,  or  that  by  reason  of  age,  sick- 
ness, bodily  inlirmity,  or  imprisonment,  they  are  unable  to  travel 
and  appear  at  court,  (/) 

§  323.    Right  to  give  testimony  by  deposition   strictly   construed. 

supersci'iption,  of  the  nature  of  the  document  enclosed  to  his  care  ;  for,  if  opened  by  him 
out  of  court,  thougli  by  mistake,  it  will  be  rejected.  Beal  v.  Thompson,  8  Crauch,  70. 
But  see  Law  v.  Law,  4  Gieenl.  167. 

7  Dwight  V.  Linton,  3  Rub.  (La.)  57. 

^  In  proof  of  tlie  absence  of  the  witness,  it  lias  been  held  not  enough  to  give  evi- 
dence merely  of  inquiries  and  answers  at  his  residence  ;  but,  that  his  alisence  must  be 
shown  by  some  one  who  knows  the  fact.  Ilobinson  V.  Markis,  2  M.  &  Kob.  375.  And 
see  Hawkins  v.  Brown,  3  Rob.  (La.)  310. 


are  taken  and  written  on  several  different 
sheets  of  paper,  and  these  are  then  fastened 
together  by  the  magistrate  and  signed  by 
him  in  due  form,  it  seems  that  these  sev- 
eral papers  form  one  continuous  whole,  and 
the  signature  of  the  magistrate  at  the  end 
is  sufficient  for  them  all.  Reg.  v.  Parker, 
L.  R.  1  C.  C.  Res.  225  ;  39  L.  J.  M.  C. 
60. 

(d)  Under  a  commission  issued  legally 
for  taking  testimony  of  witnesses  in  a  for- 
eign country  or  in  a  different  State,  the 
magistrate  to  whom  the  commission  is  di- 
rected, and  who  executes  it,  may  compel 
the  attendance  of  the  witness,  and  enforce 
it  by  commitment  for  contempt  of  court 
if  the  witness  refuses  to  answer, — pro- 
vided the  magistrate  has  such  powers 
vested  in  him  by  the  laws  of  the  State  in 
which  he  acts.  State  v.  Ingerson,  62  N. 
H.  438  ;  Burn  ham  v.  Stevens,  33  N.  H. 
247  ;  State  v.  Towle,  42  H.  H.  540.  The 
magistrate  may  also  adjourn  the  hearing 
for  necessary  cause,  ?'.  e.  the  sickness  of 
the  witness,  to  another  time  or  place  than 
that  named  in  the  commission,  even  though 
the  other  [>arty  is  not  present  at  the  place 
notified  in  the  caption  of  the  deposition, 
and  therefore  does  not  receive  notice  of 
the  adjournment.  Lowd  v.  Bowers,  64 
N.  H.  1. 

(c)  But  where,  in  a  criminal  trial,  it 
was  proved  that  though  the  prisoner  was 
present  when  the  deposition  was  taken,  he 
did  not  have  an  opportunity  to  fully  cross- 
examine  the  deponent,  the  deposition  was 
excluded.  Reg.  v.  Peacock,  12  Cox,  Cr. 
Ca.  21.  Judge  Shaw,  in  Fuller  v.  Rice, 
4  Gray  (Mass.),   343,  says,   "No  general 


rule  can  be  laid  down  in  respect  to  unfin- 
ished testimony.  If  substantially  com- 
plete, and  the  witness  is  prevented  by  sick- 
ness or  death  from  finishing  his  testimony, 
whether  viva  voce  or  by  deposition,  it  ought 
not  to  be  rejected,  but  submitted  to  the 
jury  with  such  observations  as  the  par- 
ticular circumstances  may  require.  But 
if  not  substantially  complete  it  must  be 
rejected." 

(/)  Gardner  v.  Bennett,  38  N.  Y,  Su- 
perior Ct.  197.  The  question  in  each  in- 
stance whether  the  witness  is  so  disabled 
from  travelling,  is  a  question  for  the  Court. 
It  has  been  held  that  pregnancy  may  be 
such  an  illness,  that,  if  it  disabled  the 
woman  from  travelling,  her  deposition 
might  be  read  (Reg.  v.  Wellings,  L.  R. 
3  Q.  B.  Div,  426  ;  Reg.  v.  Heesom,  14 
Cox,  Cr.  Ca.  40)  ;  but  mere  weakness 
resulting  from  old  age  and  nervousness,  if 
it  does  not  amount  to  actual  physical  dis- 
ability to  testify,  is  not  such  illness.  Eeg. 
V.  Farrell,  L.  R.  2  Cr.  Ca.  Res.  116  ;  43 
L.  J.  M.  C.  94;  12  Cox,  Cr.  Ca.  605;  Reg. 
V.  ThomjKSon,  13  Cox,  Cr.  Ca.  181.  The 
evidence  of  seamen  taken  by  deposition  is 
admissible  when  it  is  proved  that  the  ves- 
sel they  are  on  is  at  sea.  Reg.  t*.  Stewart, 
13  Cox,  Cr.  Ca.  296.  A  subpoena,  signed 
by  a  justice  of  peace  for  the  county, 
directed  to  the  witness,  and  sunnnoning 
him  to  appear  to  testify,  with  a  return 
thereon  signed  by  a  constable  of  the  town 
where  the  witness  lived,  certifying  that 
he  had  made  diligent  inquiries  aTul  search 
for  witness  and  could  not  find  him,  is  .suf- 
ficient proof  of  his  absence.  Kinney  v. 
Berran,  6  Cush.  (Mass.)  394. 


442  LAW   OP   EVIDENCE.  [PART   III. 

The  provisions  of  this  act  being  in  derogation  of  the  common 
law,  it  has  been  held  that  they  must  be  strictly  complied  with,  ^  (a) 
But  if  it  appears  on  the  face  of  the  deposition,  or  the  certificate 
which  accompanies  it,  that  the  magistrate  before  whom  it  was 
taken  was  duly  authorized,  within  the  statute,  it  is  sufficient,  in 
the  first  instance,  without  any  other  proof  of  his  authority  ;2  (5) 
and  his  certificate  will  be  good  evidence  of  all  the  facts  therein 

1  Bell  V.  Monison,  1  Peters,  355;  The  "Thomas  &  Henry"  v.  United  States, 
1  BroekenbrouKh,  367  ;  Nelson  v.  United  States,  1  Peters,  C.  C.  235.  The  use  of 
ex  parte  depositions,  taken  without  notice,  under  this  statute,  is  not  countetiauced  by 
the  courts,  where  evidence  of  a  more  satisfactory  character  can  be  obtained.  The  views 
of  the  learned  judges  on  this  subject  have  been  tiius  e.xfiressed  by  Mr.  Justice  Grier: 
"While  we  are  on  this  subject,  it  will  not  be  improper  to  remark,  that  when  the  act 
of  Congress  of  ]7y9  was  passed,  permitting  ex  parte  depositions,  without  notice,  to  be 
taken  wheie  the  witness  resides  more  than  a  hundred  miles  from  the  place  of  trial, 
such  a  provision  may  have  been  necessary.  It  then  required  nearly  as  much  time, 
labor,  and  expense  to  travel  one  hundred  miles  as  it  does  now  to  travel  one  thousand. 
Now  testimony  may  be  taken  and  returned  from  California,  or  any  part  of  Europe, 
on  comnussion,  in  two  or  three  months,  and  in  any  of  the  States  east  of  the  Kooky 
Mountains  in  two  or  three  weeks.  There  is  now  seldom  any  necessity  for  liaving  re- 
course to  this  mode  of  taking  testimony.  Besides,  it  is  contrary  to  the  course  of  the  com- 
mon law;  and,  except  in  cases  of  mere  formal  jiroof  (such  as  the  signature  or  execution 
of  an  instrument  of  writing),  or  of  some  isolated  fact  (such  as  demand  of  a  bill,  or  notice 
to  an  indorser),  testimony  thus  taken  is  liable  to  great  abuse.  At  best,  it  is  calculated 
to  elicit  only  such  a  partial  statement  of  the  truth  as  may  have  the  efi'ect  of  entire 
falsehood.  The  person  who  prepares  the  witness,  and  examines  him,  can  generally 
have  so  much  or  so  little  of  the  truth,  or  such  a  version  of  it,  as  will  suit  his  case. 
In  closely  contested  cases  of  fact,  testimony  thus  obtained  must  always  be  unsatis- 
factory and  liable  to  suspicion,  especially  if  tlie  party  has  had  time  and  ojiportunity 
to  take  it  in  the  regular  way.  This  provision  of  the  Act  of  Congress  should  never 
be  resorted  to  unless  in  circumstances  of  absolute  necessity,  or  in  the  excepted  cases 
we  have  just  mentioned."     See  Walsh  v.  Rogers,  13  How.  S.  C.  286,  287. 

2  Rugglcs  V.  Bucknor,  1  Paine,  358  ;  Patapsco  Ins.  Co.  v.  Southgate,  5  Peters,  604; 
Fowler  v.  Merrill,  11  How.  375. 

(a)  Jones  v.  Neale,  1  Hughes,  C.  C.  position  or  the  certificate  in  what  manner, 
268;  Wilson  Sewing  Machine  Co.  v.  Jack-  or  by  what  evidence  the  magistrate  was 
son.  Id.  295.  satisfied  of  the  existence   of  the  cause  of 

(b)  Palmer  v.  Fogg,  35  Me.  368  ;  Hoyt  the  taking.  It  is  enough  it  he  certifies 
V.  Hammekin,  14  How.  (U.  S.)  346;  to  the  fact  upon  his  official  responsibility. 
L3'on  V.  Elv,  24  Conn.  507  ;  West  Bovls-  Thus,  where  the  magistrate  duly  certified 
ton  V.  Sterling,  17  Pick.  (Mass.)  126  ;  that  the  de]ionent  lived  more  than  thirty 
Littlehale  v.  Dix,  11  Cush.  365.  Where  miles  from  the  place  of  trial,  no  evidence 
depositions  are  taken  before  a  mayor,  and  being  offered  to  control  the  certificate, 
are  certified  by  him,  though  without  an  and  the  court  not  being  bound  to  take 
official  seal,  the  court  will  presume  that  judicial  notice  of  the  distance  of  one  place 
he  was  mayor,  unless  the  contrary  be  from  another,  it  was  held  that  the  depo- 
shown.  Price  v.  Morris,  5  McLean,  4.  sition  was  rightly  admitted.  Littlehale  v. 
See  also  Wilkinson  v.  Yale,  6  McLean,  16.  Dix,  %ibi  supra.  Where  the  magistrate 
Where  it  is  made  the  duty  of  the  magis-  certifies  that  the  "cause  assigned  by  the 
trate  taking  a  deposition  to  certify  the  rea-  plaintiff,"  who  was  the  party  taking  the 
son  for  taking  it,  his  certificate  of  the  cause  deposition,  for  taking  the  same,  was  the 
of  taking  is  prima  fade  proof  of  tlie  fact,  deponent's  being  aliout  to  leave  the  Com- 
and  renders  the  deposition  admissible  un-  monwealth,  and  not  to  return  in  time  for 
less  it  is  controlled  by  other  evidence,  the  trial,  it  is  proper  that  such  party 
West  Boj-lston  i-.  Sterling,  17  Pick.  126;  should  show  that  the  cause  existed  at  the 
Littlehale  v.  Dix,  11  Cush.  365.  Nor  is  it  time  of  the  trial.  Kinney  v.  Berran,  6 
necessary  that  it  should  appear  by  the  de-  Cush.  304. 


CHAP.    I.] 


ATTENDANCE   OF   WITNESSES. 


443 


stated,  so  as  to  entitle  the  deposition  to  be  read,  if  the  necessary- 
facts  are  therein  sulhciently  disclosed.^  («?)    In  cases  where,  under 

8  Bell  V.  Morrison,  1  Peters,  356. 


(c)  Where  a  deposition  is  taken  under 
the  Act  of  Congress,  without  notice,  the 
adverse  party,  if  dissatisfied,  should  have 
it  taken  again.  Goodhue  v.  Bartlett,  5 
McLean,  186.  Where  the  Federal  Circuit 
Court  adopts  the  law  and  practice  of  the 
State  in  taking  depositions,  it  will  be  ])re- 
sumed  to  liave  adopted  a  mollification 
thereof,  which  has  been  followed  for  a  long 
time.  But  whatever  be  the  State  law,  the 
Act  of  Congress  is  to  prevail,  which  re- 
quires that  tlie  deponent  should  live  one 
hundred  miles  from  the  court.  Curtis  v. 
Central  Kaihoad,  6  McLean,  401.  A  lew 
cases  are  added,  illustrating  the  rules  of 
law  and  the  practice  of  the  courts,  in  re- 
gard to  admitting  or  rejecting  depositions. 
Depositions  of  several  witnesses,  taken  un- 
der one  commission  on  one  set  of  inter- 
rogatories, a  ])art  of  which  only  are  to  be 
propounded  to  each  witness,  can  be  used 
in  evidence.  Fowler  v.  Merrill,  11  How. 
(U.  S. )  375.  If  the  words  "before  me," 
preceding  the  name  of  the  magistrate  be- 
fore whom  the  deposition  was  taken  and 
sworn,  be  omitted  in  the  caption,  the  de- 
position is  not  admissible.  Powers  v. 
Shepard,  21  N.  H.  60.  Where  one  party 
takes  a  deposition  on  interrogatories,  or 
portions  of  a  deposition,  for  the  pur- 
pose of  meeting  the  testimony  of  a  wit- 
ness who  has  deposed,  or  testimony  which 
he  may  expect  the  other  party  will  pro- 
duce, but  does  not  intend  to  use  the  an- 
swers thereto,  unless  the  other  testimony 
is  introduced,  he  must  accompany  the  in- 
terrogatories with  a  distinct  notice  in  writ- 
ing that  his  purpose  is  merely  to  meet  the 
testimony  of  his  adversary's  witness  or  wit- 
nesses ;  and  if  this  is  not  done,  the  an- 
swers must  be  read  to  the  jury  if  required 
by  the  other  party.  This  is  the  most  eli- 
gible rule  in  such  cases,  and  will  save  to 
each  party  all  his  just  rights,  and  prevent 
all  unfairness  and  surprise.  By  Metcalf, 
J.,  in  Linfield,  v.  Old  Colony  R.  R.  Corp., 
10  Cush,  570.  See  McKelvy  v.  De  Wolfe, 
20  Pa.  St.  374.  A  deposition  taken  un- 
der a  commission  duly  issued  on  "inter- 
rogatories to  be  put  to  M.  H.  B.,  of 
Janesville,  Wisconsin,  laborer,"  but  which 
purports  by  its  caption  to  be  the  deposi- 
tion of  M.  H.  B.,  of  Sandusky,  Ohio,  and 
in  which  the  deponent  states  his  occupa- 
tion to  be  that  of  pedler,  is  admissible  in 
evidence,  notwithstanding  the  variance,  if 
it  appears  that  the  deponent  is  the  same 


person  to  whom  the  interrogatories  are  ad- 
dressed. Smith  V.  Castles,  1  Gray,  108. 
The  questions  appended  to  a  commission 
sent  to  Bremen  were  in  Knglish  ;  the  con- 
missioners  returned  the  answers  in  Ger- 
man, annexed  to  a  German  translation  of 
the  questions ;  the  commission  was  ob- 
jected to  on  the  ground  that  the  return 
should  have  been  in  English,  or  accompa- 
nied by  an  English  translation  ;  but  the 
objection  was  overruled;  and  a  sworn  in- 
terpreter was  [)ermitteil  to  translate  the 
answers  viva  voce  to  the  jury.  Kuhtniau 
V.  Brown,  4  Rich.  479.  Where  a  deposition 
is  taken  by  a  magistrate  in  another  State, 
under  a  written  agreement  that  it  may  be 
so  taken  upon  the  interrogatories  and 
cross-interrogatories  annexed  to  the  agree- 
ment, such  agreement  oi)erates  only  as  a 
substitute  for  a  commission  to  the  magis- 
trate named  therein,  and  a  waiver  of  ob- 
jections to  the  interrogatories  in  point  of 
form,  and  does  not  dejirive  either  party  of 
the  right  to  object,  at  the  trial,  to  the  in- 
terrogatories and  answers,  as  proving  facts 
by  incompetent  evidence.  Atlantic  Mu- 
tual Ins.  Co.  V.  Fitzpatrick,  2  Gray,  279  ; 
Lord  V.  Moore,  37  Me.  208.  And  to  ex- 
clude the  deposition  on  the  ground  of  the 
interest  of  the  deponent,  it  is  not  neces- 
sary that  the  objection  should  be  taken 
before  the  magistrate.  Whitney  v.  Hey- 
wood,  6  Cush.  82 ;  infra,  §  421,  n. 
Where  the  witness  was  interested  at  the 
time  his  deposition  was  taken,  and  a  re- 
lease to  him  was  afterwards  executed,  the 
deposition  was  not  admitted.  Reed  v. 
Rice,  25  Vt.  171  ;  Ellis  v.  Smith,  10  Ga. 
253.  If  the  deponent  is  disqualified  by 
reason  of  interest  at  the  time  of  giving  hi.s 
deposition,  and  at  the  time  of  the  trial  the 
disqualification  has  been  removed  by  stat- 
ute, the  deposition  can  be  used  in  evi- 
dence. Haynes  v.  Rowe,  40  Me.  181. 
Where,  after  the  deposition  is  taken,  he 
becomes  interested  in  the  event  of  the  suit, 
by  no  act  of  his  own,  or  of  the  party  who 
offers  his  testimony,  the  deposition  is  ad- 
missible. Sabine  v.  Strong,  6  Met.  270. 
As  to  the  time  when  objections  to  the 
admission  of  depositions  should  be  made, 
it  is  held  that  any  objection  based  on  a 
defect  or  irregularity  in  the  manner  of 
taking  the  deposition,  and  which  might 
be  remedied  by  retaking  the  deposition, 
should  be  made  as  soon  as  the  party  ob- 
jecting finds  out  the  defect,  and  this  will 


444  LAW   OF   EVIDENCE.  [PART   III. 

the  authority  of  an  act  of  Congress,  the  deposition  of  a  witness  is 
taken  de  bene  esse,  the  })arty  producing  the  deposition  must  show- 
affirmatively  that  his  inability  to  procure  the  personal  atten- 
dance of  the  witness  still  continues;  or,  in  other  words,  that  the 
cause  of  taking  the  deposition  remains  in  force.  But  this  rule 
is  not  applied  to  cases  where  the  witness  resides  more  than  a 
hundred  miles  from  the  place  of  trial,  he  being  beyond  the  reach 
of  compulsory  process.  If  he  resided  beyond  that  distance  when 
the  deposition  was  taken,  it  is  presumed  that  he  continues  so  to 
do,  until  the  party  opposing  its  admission  shows  that  he  has 
removed  within  the  reach  of  a  subpoena.'^ 

§  324.  Depositions  in  perpetuam.  By  the  act  of  Congress 
already  cited, ^  the  power  of  the  courts  of  the  United  States,  as 
courts  of  common  law,  to  grant  a  dedimus  potestafem  to  take  de- 
positions, whenever  it  may  be  necessary,  in  order  to  prevent  a 
failure  or  delay  of  justice,  is  expressly  recognized ;  and  the  cir- 
cuit courts,  when  sitting  as  courts  of  equity,  are  empowered  to 
direct  depositions  to  be  taken  in  perpetuam  rei  memoriam,  accord- 
ing to  the  usages  in  chancery,  where  the  matters  to  which  they 
relate  are  cognizable  in  those  courts.  A  later  statute  ^  has  facili- 
tated the  taking  of  depositions  in  the  former  of  these  cases,  by  pro- 
viding that  when  a  commission  shall  be  issued  by  a  court  of  the 
United  States,  for  taking  the  testimony  of  a  witness,  at  any  place 
within  the  United  States,  or  the  territories  thereof,  the  clerk  of  any 
court  of  the  United  States,  for  the  district  or  territory  where  the 
place  may  be,  may  issue  a  subpoena  for  the  attendance  of  the  wit- 

*  Patapsco  Ins.  Co.  v.  Soutligate,  5  Peters,  604,  616-618  ;  Pettibone  v.  Derringer, 
4  Wash.  215  ;  1  Stark.  Evid.  277. 

1  Stat.  1789,  c.  20,  §  30. 

2  Stat.  1827^  c.  4.  See  the  practice  and  course  of  proceeding  in  these  cases,  in  2 
Paine  &  Duer's  Pr.  pp.  102-110  ;  2  Tidd's  Pr.  810-812. 

crenerally  be  before  trial.  Leavitt  v.  Baker,  (N.  Y.)  App.  Dec.  Ill;  Lord  v.  Moore, 
82  Me.  28  ;  Doane  v.  Glenn,  21  Wall.  37  Me.  208 ;  Whitney  v.  Heywood,  6 
(U.  S.)  33  ;  Merchants  Dispatch  Co.  v.  Cush.  (Mass.)  82.  It  is  held  that  if  the 
Leysor,  89  111.  43  ;  Stowell  v.  Moore,  89  party  taking  a  deposition  does  not  intro- 
111.  563  ;  Barnum !'.  Barnum,  42  Md.  251  ;  duce  it  in  evidence,  this  fact  is  admissible 
Vilniar  v.  Schall,  61  N.  Y.  564.  If  a  in  evidence  and  may  be  argued  upon  by 
party,  knowing  of  such  defect,  wait  till  the  the  other  counsel  as  tending  to  show  that 
trial  before  objecting  to  the  deposition,  he  the  evidence  in  the  deposition  is  not  favor- 
will  be  held  to  have  waived  the  objection,  able  to  the  party  who  took  it.  On  the 
His  proper  course  is  to  move  to  suppress  other  hand,  the  party  who  took  it  cannot 
the  deposition.  See  cases  supra.  Objec-  give  evidence  that  the  deponent  testified 
tions  to  the  substance  of  the  testimony,  differently  in  the  deposition  from  state- 
however,  as  that  the  witness  is  incompe-  ments  he  had  previously  made  to  the  party 
tent  or  the  evidence  is  inadmissible,  may  who  took  his  deposition,  since  the  truth- 
be  taken  at  any  time  before  the  trial  or  at  fulness  of  the  deponent  is  not  in  issue  in 
the  trial.  Eslava  v.  Mazange,  1  Woods,  the  case,  his  deposition  not  being  in  evi- 
C.  C.   623  ;    Fielden   v.   Lahens,   2  Abb.  dence.     Learned  v.  Hall,  133  Mass.  417. 


CHAP.    I.]  ATTENDANCE    OF   WITNESSES.  445 

ncss  before  the  commissioner,  provided  the  place  be  in  the  county 
where  the  witness  resides,  and  not  more  than  forty  miles  from 
his  dwelling.  And  if  the  witness,  being  duly  summoned,  shall 
neglect  or  refuse  to  appear,  or  shall  refuse  to  testify,  any  judge 
of  the  same  court,  upon  proof  of  such  contempt,  may  enforce 
obedience,  or  punish  the  disobedience,  in  the  same  manner  as  the 
courts  of  the  United  States  may  do,  in  case  of  disobedience  to 
their  own  process  of  subpoena  ad  testificandum.  Some  of  the 
States  have  made  provision  by  law  for  the  taking  of  depositions, 
to  be  used  in  suits  pending  in  other  States,  by  bringing  the  depo- 
nent within  the  operation  of  their  own  statutes  against  perjury ; 
and  national  comity  plainly  requires  the  enactment  of  similar 
provisions  in  all  civilized  countries.  But  as  yet  they  are  far  from 
being  universal ;  and  whether,  in  the  absence  of  such  provision, 
false  swearing  in  such  case  is  punishable  as  perjury,  has  been 
gravely  doubted. ^  Where  the  production  of  papers  is  required, 
in  the  case  of  examinations  under  commissions  issued  from  courts 
of  the  United  States,  any  judge  of  a  court  of  the  United  States 
may,  by  the  same  statute,  order  the  clerk  to  issue  a  subpoena 
duces  tecum  requiring  the  witness  to  produce  such  papers  to  the 
commissioner,  upon  the  affidavit  of  the  applicant  to  his  belief 
that  the  witness  possesses  the  papers,  and  that  they  are  material 
to  his  case;  and  may  enforce  the  obedience  and  punish  the 
disobedience  of  the  witness,  in  the  manner  above  stated. 

§  325.  Same  subject.  But  independently  of  statutory  provi- 
sions, chancery  has  power  to  sustain  bills,  filed  for  the  purpose 
of  preserving  the  evidence  of  witnesses  in  perpetuam.  rei  memo- 
riarn,  touching  any  matter  which  cannot  be  immediately  inves- 
tigated in  a  court  of  law,  or  where  the  evidence  of  a  material 
witness  is  likely  to  be  lost,  by  his  death,  or  departure  from  the 
jurisdiction,  or  by  any  other  cause,  before  the  facts  can  be  judi- 
cially investigated.  The  defendant,  in  such  cases,  is  compelled 
to  appear  and  answer,  and  the  cause  is  brought  to  issue,  and  a 
commission  for  the  examination  of  the  witnesses  is  made  out, 
executed,  and  returned  in  the  same  manner  as  in  other  cases; 
but  no  relief  being  prayed,  the  suit  is  never  brought  to  a  hearing ; 
nor  will  the  court  ordinarily  permit  the  publication  of  the  depo- 
sitions, except  in  support  of  a  suit  or  action ;  nor  then,  unless  the 
witnesses  are  dead,  or  otherwise  incapable  of  attending  to  be 
examined.^ 

8  Calliand  v.  Vaughan,  1  B.  &  P.  210.         ^  Smith's  Chancery  Prac.  284-286. 


446  LAW   OF   EVIDENCE.  [PART   III. 


CHAPTER  II. 

OP   THE   COMPETENCY    OF   WITNESSES. 

§  326.  Competency  of  evidence.  Although,  in  the  ordinary 
affairs  of  life,  temptations  to  practise  deceit  and  falsehood  may- 
be comparatively  few,  and  therefore  men  may  ordinarily  be  dis- 
posed to  believe  the  statements  of  each  other ;  yet,  in  judicial  in- 
vestigations, the  motives  to  pervert  the  truth  and  to  perpetrate 
falsehood  and  fraud  are  so  greatly  multiplied,  that  if  statements 
were  received  with  the  same  undiscriminating  freedom  as  in  pri- 
vate life,  the  ends  of  justice  could  with  far  less  certainty  be  at- 
tained. In  private  life,  too,  men  can  inquire  and  determine  for 
themselves  whom  they  will  deal  with,  and  in  whom  they  will 
confide ;  but  the  situation  of  judges  and  jurors  renders  it  diffi- 
cult, if  not  impossible,  in  the  narrow  compass  of  a  trial,  to  in- 
vestigate the  character  of  witnesses ;  and  from  the  very  nature  of 
judicial  proceedings,  and  the  necessity  of  preventing  the  mul- 
tiplication of  issues  to  be  tried,  it  often  may  happen  that  the 
testimony  of  a  witness,  unworthy  of  credit,  may  receive  as  much 
consideration  as  that  of  one  worthy  of  the  fullest  confidence.  If 
no  means  were  employed  totally  to  exclude  any  contaminating 
influences  from  the  fountains  of  justice,  this  evil  would  con- 
stantly occur.  But  the  danger  has  always  been  felt,  and  always 
guarded  against,  in  all  civilized  countries.  And  while  all  evi- 
dence is  open  to  the  objection  of  the  adverse  party,  before  it  is 
admitted,  it  has  been  found  necessary  to  the  ends  of  justice,  that 
certain  kinds  of  evidence  should  be  uniformly  excluded.  ^ 

§  327.  Same  subject.  In  determining  what  evidence  shall  be 
admitted  and  weighed  by  the  jury,  and  what  shall  not  be  received 
at  all,  or,  in  other  words  in  distinguishing  between  competent 
and  incompetent  witnesses,  a  principle  seems  to  have  been  ap- 
plied similar  to  that  which  distinguishes  between  conclusive  and 
disputable  presumptions  of  law,^  namely,  the  experienced  con- 
nection between  the  situation  of  the  witness,  and  the  truth  or 
falsity  of  his  testimony.     Thus,  the  law  excludes  as  incompetent, 

J  4  Inst.  279. 

2  Supra,  §§  14,  15. 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  447 

those  persons  whose  evidence,  in  general,  is  found  more  likely 
than  otherwise  to  mislead  juries;  receiving  and  weighing  the 
testimony  of  others,  and  giving  to  it  that  degree  of  credit  which 
it  is  found  on  examination  to  deserve.  It  is  obviously  impossible 
that  any  test  of  credibility  can  be  infallible.  All  that  can  be  done 
is  to  approximate  to  such  a  degree  of  certainty  as  will  ordinarily 
meet  the  justice  of  the  case.  The  question  is  not,  whether  any 
rule  of  exclusion  may  not  sometimes  shut  out  credible  testimony; 
but  whether  it  is  expedient  that  there  should  be  any  rule  of  ex- 
clusion at  all.  If  the  purposes  of  justice  require  that  the  deci- 
sion of  causes  should  not  be  embarrassed  by  statements  generally 
found  to  be  deceptive,  or  totally  false,  there  must  be  some  rule 
designating  the  class  of  evidence  to  be  excluded ;  and  in  this  case, 
as  in  determining  the  ages  of  discretion,  and  of  majority,  and  in 
deciding  as  to  the  liability  of  the  wife,  for  crimes  committed  in 
company  with  the  husband,  and  in  numerous  other  instances,  the 
common  law  has  merely  followed  the  common  experience  of 
mankind.  It  rejects  the  testimony  (1)  of  parties ;  (2)  of  persons 
deficient  in  undertanding ;  (3)  of  persons  insensible  to  the  obli- 
gations of  an  oath ;  and  (4)  of  persons  whose  pecuniary  interest 
is  directly  involved  in  the  matter  in  issue ;  not  because  they  may 
not  sometimes  state  the  truth,  but  because  it  would  ordinarily  be 
unsafe  to  rely  on  their  testimony.  ^  Other  causes  concur,  in  some 
of  these  cases,  to  render  the  persons  incompetent,  which  will  be 
mentioned  in  their  proper  places.  We  shall  now  proceed  to  con- 
sider, in  their  order,  each  of  these  classes  of  persons,  held  incom- 
petent to  testify ;  adding  some  observations  on  certain  descriptions 
of  persons,  held  incompetent  in  particular  cases.  [Ed.  Since 
the  author  wrote  the  text  of  this  treatise,  a  wide-spread  change 
has  taken  place  in  the  rules  as  to  the  competency  of  witnesses. 

2  "  If  it  be  ohjected,  that  interest  in  the  matter  in  dispute  might,  from  the  bias  it 
creates,  be  an  exception  to  the  ciedit,  but  that  it  ought  not  to  he  absolutely  so  to  the 
competency,  any  more  than  the  friendship  or  enmity  of  a  party,  whose  e'vidence  is 
offered,  towards  either  of  the  parties  in  the  cause,  or  many  other  considerations  here- 
after to  be  intimated  ;  the  general  answer  may  be  this,  that  in  point  of  authority  no 
distinction  is  more  absolutely  settled  ;  and  in  point  of  theory,  the  existence  of  a  direct 
interest  is  capable  of  being  precisely  proved  ;  but  its  influence  on  the  mind  is  of  a 
nature  not  to  discover  itself  to  the  jury  ;  whence  it  hath  been  held  expedient  to  adopt 
a  general  exception,  by  which  witnesses  so  circumstanced  are  free  from  temptation, 
and  the  cause  not  exposed  to  the  hazard  of  the  very  doubtful  estimate,  what  quantity 
of  interest  in  the  question,  in  proportion  to  the  character  of  the  witness,  in  any  in- 
stance, leaves  his  testimony  entitled  to  belief  Some,  indeed,  are  incapable  of  being 
biassed  even  latently  by  the  greatest  interest ;  many  would  betray  the  most  solemn 
obligation  and  public  confidence  for  an  interest  very  inconsiderable.  An  universal 
exclusion,  where  no  line  short  of  this  could  have  been  drawn,  preserves  infirmity  from 
a  snare,  and  integrity  from  suspicion  ;  and  keeps  the  current  of  evidence,  thus  far  at 
least,  clear  and  uninfected."     1  Gilb.  Evid.  by  Lofft,  pp.  223,  221. 


448  LAW   OF   EVIDENCE.  [PART   III. 

Statutes  have  been  passed  in  nearly  all  the  United  States  admit- 
ting as  competent  witnesses,  persons  disqualified  at  common  law, 
in  most  cases  the  disqualifying  characteristic  being  by  che  same 
statute  made  admissible  to  affect  the  credibility  of  the  witness. 
These  enabling  statutes  relate  generally  to  the  persons  included 
in  classes  (1)  and  (4)  of  the  author's  preceding  paragraph,  to  wit, 
parties  to  the  suit  and  persons  whose  pecuniary  interest  is  directly 
involved  in  the  matter  in  issue,  but  a  class  which  the  author  in- 
cludes in  his  class  (3),  namely,  persons  rendered  incompetent  at 
common  law  by  conviction  of  infamous  crimes  have  also  been 
rendered  competent  by  statute  in  many  States,  this  conviction 
now  going  to  the  credibility  of  the  witness  and  not  to  his  compe- 
tency. Still  further,  in  several  States,  those  who  formerly  were 
incompetent  from  lack  of  suflficient  religious  belief,  are  now  ren- 
dered competent.  Further  discussion  of  these  changes  will  be 
had  in  the  succeeding  sections  as  the  topics  occur  seriatim  in 
§§  329,  334,  372,  and  vol.  iii.  §  39  a.] 

§  328.  Evidence  must  have  the  sanction  of  an  oath.  But  here  it 
is  proper  to  observe,  that  one  of  the  main  provisions  of  the  law, 
for  securing  the  purity  and  truth  of  oral  evidence,  is,  that  it  be 
delivered  under  the  sanction  of  an  oath.  Men  in  general  are  sen- 
sible of  the  motives  and  restraints  of  religion,  and  acknowledge 
their  accountability  to  that  Being,  from  whom  no  secrets  are  hid. 
In  a  Christian  country,  it  is  presumed  that  all  the  members  of  the 
community  entertain  the  common  faith,  and  are  sensible  to  its 
influences ;  and  the  law  founds  itself  on  this  presumption,  while, 
in  seeking  for  the  best  attainable  evidence  of  every  fact,  in  con- 
troversy, it  lays  hold  on  the  conscience  of  the  witness  by  this  act 
of  religion ;  namely,  a  public  and  solemn  appeal  to  the  Supreme 
Being  for  the  truth  of  what  he  may  utter.  "  The  administration 
of  an  oath  supposes  that  a  moral  and  religious  accountability  is 
felt  to  a  Supreme  Being,  and  this  is  the  sanction  which  the  law 
requires  upon  the  conscience,  before  it  admits  him  to  testify.  "^ 
An  oath  is  ordinarily  defined  to  be  a  solemn  invocation  of  the 
vengeance  of  the  Deity  upon  the  witness,  if  he  do  not  declare  the 
whole  truth  as  far  as  he  knows  it;^  or,  a  religious  asseveration 

1  Wakefield  v.  Eoss,  5  Mason,  18,  per  Story,  J.  See  also  Menocluus,  De  Prsesurapt. 
lib.  1,  QuiEst.  2.  n.  32,  33  ;  Farinac.  Opera,  torn.  ii.  App.  j..  162,  n.  32,  p.  281,  n.  33; 
B3'nkershoek,  Ohserv.  Juris.  Rom.  lib.  6,  c.  2. 

■^  1  Stark.  Evid.  22.  The  force  and  utility  of  this  sanction  were  familiar  to  the 
Romans  from  the  earliest  times.  The  solemn  oath  was  anciently  taken  by  this  formula, 
the  witness  holding  a  flint-stone  in  his  right  hand:  "  Si  sciens  fallo,  tum  me  Diespiter, 
salva  urhe  arceque,  bonis  ejiciat,  ut  ego  hano  lapidem."  Adam's  Ant.  247  ;  Cic.  Fam. 
Ep.  vii.  1,  12;  12  Law  Mag.'  (Lond.)  272.  The  early  Christians  refused  to  utter  any  impre- 
cation whatever,  Tyler  on  Oaths,  c.  6  ;  and  accordingly,  under  the  Christian  Emperors, 


CHAP.    II.]  COMPETENCY    OF   WITNESSES.  449 

by  which  a  person  renounces  the  mercy  and  imprecates  the  ven- 
geance of  Heaven,  if  he  do  not  speak  the  truth.  ^  But  the  cor- 
rectness of  this  view  of  the  nature  of  an  oath  has  been  justly 
questioned  by  a  hite  writer/  on  the  i^round  that  the  imprecatory 
clause  is  not  essential  to  the  true  idea  of  an  oath,  nor  to  the 
attainment  of  the  object  of  the  law  in  requiring  this  solemnity. 
The  design  of  the  oath  is  not  to  call  the  attention  of  God  to  man ; 
but  the  attention  of  man  to  God ;  —  not  to  call  on  Him  to  punish 
the  wrong-doer;  but  on  man  to  remember  that  He  will.  That 
this  is  all  which  the  law  requires  is  evident  from  the  statutes  in 
regard  to  Quakers,  Moravians,  and  other  classes  of  persons,  con- 
scientiously scrupulous  of  testifying  under  any  other  sanction, 
and  of  whom,  therefore,  no  other  declaration  is  required.  Ac- 
cordingly, an  oath  has  been  well  defined,  by  the  same  writer,  to 
be  "  an  outward  pledge,  given  by  the  juror  "  (or  person  taking  it,) 
"that  his  attestation  or  promise  is  made  under  an  immediate 
sense  of  his  responsibility  to  God."^  A  security  to  this  extent, 
for  the  truth  of  testimony,  is  all  that  the  law  seems  to  have 
deemed  necessary;  and  with  less  security  than  this,  it  is  be- 
lieved that  the  purposes  of  justice  cannot  be  accomplished. 

§  329.  Parties  to  the  record.  And,  first,  in  regard  to  parties, 
the  general  rule  of  the  common  law  is,  that  a  parti/  to  the  record, 
in  a  civil  suit,  cannot  be  a  witness  either  for  himself,  or  for  a  co- 
suitor  in  the  cause.  ^  (a)     [Ed.   This  rule,  as  was  above  stated, 

oaths  were  taken  in  the  simple  form  of  religious  asseveration,  "iuvocato  Dei  Omnipo- 
tentis  nomine."  Cod.  lib.  2,  tit.  4,  1.  41  ;  "  sacrosanctis  evangeliis  tactis,"  Cod.  lib.  3, 
tit.  1,1.14.  Constantine  added  in  a  rescript,  "  Jurisjurandi  religione  testes,  prius 
Huam  perhibeant  testimonium,  jamdudum  arctari  prtecipimus."  Cod.  lib.  4,  tit.  20, 
1.  9.  See  also  Omichund  v.  Barker,  1  Atk.  21,  48,  per  Ld.  Hardwicke  ;  s.  c.  Willes, 
.538  ;  1  Phil.  Evid.  p.  8  ;  Atcheson  v.  Everitt,  Cowp.  389.  The  subject  of  oaths  is 
very' fully  and  ably  treated  by  Mr.  Tyler,  in  his  book  on  Oaths,  their  Nature,  Origin, 
and  History.     Lond.  1834. 

3  White's  Case,  2  Leach,  Cr.  Cas.  (4th  ed.)  430. 

*  Tyler  on  Oaths,  pp.  12,  13. 

5  Tyler  on  Oaths,  p.  15.  See  al.so  the  report  of  the  Lords'  Committee,  Id.  Introd. 
p.  xiv  ;  3  Inst.  165  ;  Fleta,  lib.  5,  c.  22  ;  Fortescue,  De  Laud.  Leg.  Angl.  c.  26,  p.  58. 

1  3  Bl.  Comm.  371  ;  1  Gilb.  Evid.  by  Lolft,  p.  221  ;  Freari-.  Evertson,  20  Johns.  142. 

(a)  The  general  rule  now  is  that  parties  intention,  show  wide  differences  in  the 
to  the  record  of  a  suit  are  competent  wit-  main  features  of  the  legislation, 
nesses  in  the  suit,  the  fact  of  their  being  An  outline  of  the  principal  differences 
parties  affecting  only  their  credibility,  in  these  .statutes  is  as  follows  :  In  a  few 
The  fact  that  a  person  offered  as  a  witness  States,  parties  and  persons  interested  in 
is  interested  in  the  result  of  the  suit  (see  the  suit  are  made  competent  witnesses 
infra,  §§  386-430)  is  also  now  made  by  without  any  exceptions.  In  many  States, 
statute  an  objection  to  his  credibility,  not  an  important  exception  is  made,  i.  e.  when 
to  his  competency.  Both  of  these  changes  one  of  the  parties  to  a  transaction  or  con- 
in  the  common  law  are  generally  combined  versation  has,  before  the  trial  of  the  case, 
in  one  statute,  and  therefore  will  be  con-  become  insane  or  died,  since  it  then  be- 
sidered  together  in  this  note.  The  stat-  comes  plainly  impossible  to  procure  his 
utes,  while  being  similar  in  their  general  testimony  to  the  transaction  or  conversa- 

VOL.    I.  —  29 


450 


LAW   OP   EVIDENCE. 


[part   III. 


has  been  changed  in  almost  every  State  of  the  Union,  so  as  to 


tion,  it  has  been  thouglit  advisable  to  pre- 
vent the  other  [larty  i'roni  testifying  as  to 
that  transaction  :  e.  g.  in  U.  8.  Rev.  Stat. 
§  858,  it  is  provided  that  in  actions  by  or 
against  executors,  aduiinistrators,  or  guar- 
dians in  which  judgment  may  be  given  for 
or  against  them,  neither  party  shall  be  al- 
lowed to  testify  against  the  other  as  to  any 
transaction  with  or  statement  by  the  testa- 
tor,  intestate,   or  ward,  unless   called   to 
testify  thereto  by  the  opposite  party,   or 
required  to  testify  thereto  by  the  court. 
This  form  of  the  rule  makes  a  party  incom- 
petent  only    for   certain    purposes.       The 
more  general  form  of  the  same  rule  makes 
the  party  or  person  interested  in  the  result 
of  the  suit  incompetent  generally.     Thus, 
in  Illinois  (Rev.  Stat.   1880,  c.  51),  it  is 
enacted  that  no  party  to  a  civil  suit,  or 
person  directly  interested   in   the    event, 
shall  be  allowed  to  testify  voluntarily  in  his 
own  behalf  when  any  adverse  party  sues  or 
defends  as  the  trustee  or  conservator   of 
any  idiot,  habitual  drunkard,   lunatic,  or 
distracted  person,  or  as  executor,  admin- 
istrator, heir,   legatee,  or  devisee    of  any 
deceased  person,  or  as  guardian  or  trustee 
of  such   heir,    legatee,   or   devisee.     This 
form  of  the  rule,  however,  is  narrowed  gen- 
erally either  by  special  exceptions  admit- 
ting a  party  to  testify  as  to  other  facts  than 
those  known  only  to  him  and  the  deceased 
or  insane  person,  or  by  decisions  of  court 
to  the  same  effect,  thus  making  this  form 
almost  the  equivalent  of  the  former.     JSee 
Besson  v.  Cox,  35   N.  J.   Eq.  87.     Thus, 
when  one  party  is  an  executor,  the  other 
is  not  prevented  from  testifying  to  trans- 
actions or  conversations  had  with  an  agent 
of  the  deceased.     Pratt  v.  Elkins,  80  N.  Y. 
198.     If,  however,  the  agent  signs  a  con- 
tract in  his  own  name,  and  discloses  no 
principal,  the  statute  prevents  the  other 
partv  from  testifying.     Standford  v.  Hor- 
witz^  49  Ind.  525. 

So,  conversations  of  the  deceased  with 
third  parties,  at  which  the  other  party  to  the 
suit  was  present  and  which  he  heard,  do  not 
come  within  the  reason  of  the  rule,  as,  the 
third  parties  being  alive  may  be  called  to 
contradict  the  testimony  of  the  surviving 
party.  Hughey  v.  Eichelberger,  11  S.  C.  36. 
Another  marked  difference  in  these 
statutes  lies  in  the  fact  that  some  exclude 
one  party  only  when  the  other  is  dead  ; 
others  exclude  the  party  or  persons  inter- 
ested in  the  suit.  In  the  former  case,  per- 
sons interested  in  the  result  of  the  suit, 
may  testify,  although  one  of  the  parties  is 
dead.  Potter  v.  National  Bank,  102  U.  S. 
163  ;  Rawson  v.  Knight,  73  Me.  340. 


In  most  States,  also,  it  is  the  law, 
either  by  special  statutory  provision  or  by 
the  decisions  of  the  courts,  that  if,  in  cases 
where  one  party  is  incompetent  to  testify 
to  certain  transactions,  the  other  party, 
being  an  executor  or  suing  in  some  other 
representative  capacity,  voluntarily  testi- 
fies to  such  transactions,  the  other  party  is 
competent  to  testify  also,  and  the  incom- 
petency is  held  to  be  waived  by  tlie  act  of 
the  other  party.  Potts  v.  Jlayer,  86  N.  Y. 
302  ;  Clawson  v.  Riley,  34  N.  J.  Eq.  348  ; 
Williamson  v.  State,  59  Miss.  235.  And 
see  the  statutes  below,  generally.  As  a 
consequence  of  admitting  i)arties  to  an  ac- 
tion to  testify  in  the  case,  the  fact  of  the 
existence  of  a  mental  state,  intent,  knowl- 
edge, motive,  or  belief  in  the  party  at  any 
given  time,  if  it  is  a  material  point  in  the 
case,  may  be  proved  by  the  direct  testi- 
mony of  the  party  himself.  Formerly 
it  could  only  be  proved  indirectly  by  his 
words  and  acts,  and  these  now  form  a 
valuable  test  of  the  truthfulness  of  his 
testimony  on  that  point.  Hale  v.  Taylor, 
45  N.  H.  405  ;  'VVhceldon  v.  "Wilson,  44 
Me.  11  ;  Snow  v.  Paine,  114  Mass.  520; 
Perry  v.  Porter,  121  Id.  522  ;  Berkey  v. 
Judd,  22  Minn.  287  ;  Kerrains  v.  People, 
60  N.  Y.  221  ;  Greer  v.  State,  53  Ind. 
420.  Contra,  Oxford  Iron  Co.  v.  Sprad- 
ley,  51  Ala.  171. 

Where  parties  are  competent,  they  are 
also  compellable.  In  re  Chiles,  22  Wall. 
(U.  S.)  157. 

On  account  of  the  importance  of  the 
subject,  and  the  variance  in  the  statutes, 
rendering  condensation  or  grouping  im- 
possible, it  has  been  thought  best  to  set 
them  out  at  length  with  some  of  the  de- 
cisions interpreting  them. 

Alabama  (Code,  1886,  sec.  2765).  Par- 
ties or  persons  interested  in  a  suit  are  com- 
petent witnesses,  but  neither  party  can  testifi/ 
against  the  other  as  to  any  transaction  with 
or  statement  by  any  deceased  person  whose 
estate  is  interested  in  the  residt  of  the  suit, 
or  when  the  deceased  person,  at  the  time  of 
such  transaction  or  statements,  acted  in  any 
representative  or  fiduciary  relation  to  the 
party  against  whom  such  testimony  is  sought 
to  be  introduced,  unless  called  to  testify 
thereto  by  the  opposite  party. 

It  is  iield  that  the  tiansferrer  of  a  chose 
in  action  is  not  a  competent  witness  for  his 
transferee,  in  a  suit  by  the  latter  against 
the  personal  representatives,  of  a  de- 
ceased party  to  the  chose  in  action,  any 
statement  or  transaction  occurring  between 
himself,  or  between  other  persons  and  sucli 
decedent.     Drew  v.  Simmons,  58  Ala.  463  ; 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  451 

allow  parties  in  civil  suits  to  testify.     The  statutes  and  leading 


Lewis  V.  Easton,  50  Ala.  470  ;  Goodlett 
V.  Kelly,  74  Ala.  213.  See  Sublett  v. 
Hodges,  88  Ala.  493,  and  Mobile  Savings 
Bank  V.  McDonnell,  87  Ala.  736,  as  to 
waiver  of  this  exclusion  by  the  opposite 
party. 

Ark-ansas  (Digest  of  the  Stats.  1884, 
sec.  2857).  In  actions  by  or  against  ex- 
ecutors, admini^rutors,  or  (/uardtuns,  in 
which  judgment  mag  be  rendered  for  or 
against  them,  neither  party  can  testify 
against  the  other  as  to  any  transactions  with 
or  statements  of  the  testator,  intestate,  or 
ward,  unless  called  to  testify  thereto  by  the 
opposite  parti/. 

California  (Civil  Code,  seo.  1880,  el.  3). 
Parties  or  assiqnors  of  parties  to  an  action, 
or  persons  in  whose  behalf  an  action  is  pro- 
secuted against  an  executor  or  administrator 
upon  a  claim  against  the  estate  of  a  deceased 
person,  cannot  U'stify  as  to  any  matter  of 
fact  occurring  before  the  death  of  such  de- 
ceased person.  This  clause  applies  not 
only  to  parties  who  have  an  adverse  inter- 
est to  the  estate,  but  to  all  nominal  par- 
ties to  the  action  (Blood  V.  Fairbanks,  50 
Cal.  420) ;  but  not  to  a  i>arty  claiming  a 
family  allowance  (Estate  of  McCaasland, 
52  Cal.  568).  The  clause  does  not  pro- 
hibit a  [person,  against  whom  an  action  is 
])rosecuted  by  an  executor  on  a  claim  in 
lavor  of  the  estate,  from  being  a  witness  in 
his  own  behalf  (Sedgwick  v.  Sedgwick,  52 
Cal.  336  ;  McGregor  v.  Donnelly,  61  Cal. 
149),  nor  is  it  to  be  construed  to  prevent 
an  executor  or  administrator  from  calling 
a  party  to  the  action  to  testify  in  behalf  of 
the  estate.  Chase  v.  Evoy,  51  Cal.  618. 
The  statute  does  not  exclude  the  account- 
books  of  the  adverse  party  when  thev  are 
otherwise  admissible  in  the  actions.  Roche 
V.  Ware,  71  Cal.  375. 

Colorado  (Gen.  Laws,  sees.  3641,  3647). 
No  party  to  any  civil  action,  or  person  di- 
rectly interested  in  the  event,  can  testify  of 
his  own  motion  or  in  his  own  behalf  when  am/ 
adverse  party  sues  or  defends  as  the  trustee 
or  conservator  of  any  idiot,  lunatic,  or  dis- 
tracted person,  or  as  the  executor,  adminis- 
trator, heir,  legatee,  or  devisee  of  any 
deceased  person,  or  the  guardian  or  trustee 
of  any  such  heir,  legatee,  or  devisee,  unless 
when  called  as  a  witness  by  such  adverse 
party  so  suing  or  defending  ;  hut  even  in 
those  cases  a  party  or  interested  person  may 
testify  to  facts  occurring  after  the  death  of 
the  deceased  person  ;  and  when  in  such  ac- 
tion an  agent  of  the  deceased  person  testifies 
m  behalf  of  any  person  or  persons  suing  or 
being  sued,  in  either  of  the  rapacities  above 
named,  to  any  conversation  or  transaction 


between  such  agent  and  the  opposite  party 
or  /lurties  in  interest,  such  party  or  parties 
in  interest  may  testify  concerning  the  same 
conversation  or  transaction  ;  and  also  when 
in  any  such  action,  any  such  party  suing  or 
defendiiuj  as  aforesaid,  or  any  person  hav- 
ing a  direct  interest  in  the  event  of  such  ac- 
tion, shall  testify  in  behalf  of  such  party  so 
suing  or  defending  to  any  conversation  or 
transaction  with  the  o/iposite  party  or  parlies 
in  interest,  then  such  opposite  party  in  inter- 
est can  also  testify  as  to  the  same  conversa- 
tion or  transaction ;  and  when  in  any  such 
action,  any  witness  not  a  party  to  the  record, 
or  not  a  party  in  interest,  nor  an  agent  for 
such  deceased  person,  shall,  in  behalf  of  any 
/larty  to  such  action,  testify  to  any  conversa- 
tion or  admission  by  any  adverse  party  or 
parties  in  interest,  occurring  be/ore  the  death 
and  in  the  absence  of  such  deceased  person, 
such  adverse  party  or  parties  in  interest  may 
also  testify  as  to  the  same  admission  or  con- 
versation ;  and  when  in  any  such  action  the 
de/iosition  of  such  deceased  person  shall  be 
read  in  evidence  at  the  trial,  any  adverse 
parti/  or  /mrties  in  interest  may  testify  as  to 
all  matters  and  things  testified  to  in  such 
deposition  by  such  deceased  person  and  not 
excluded  for  irrelevancy  or  incom/ietency 
(sec.  3643).  Jn  any  action  by  or  against 
am/  surviving  partner  or  jtartners,  joint  con- 
tractor or  contractors,  no  adverse  /tarty 
or  person  adversely  interested  in  the  event 
thereof,  is  a  comj)etent  witness  to  testify 
to  any  admission  or  conversation  by  any 
decea.'ted  person  or  joint  contractor,  unless 
some  one  or  more  of  the  surviving  partners  or 
joint  contractors  were  also  present  at  the 
time  of  such  admission  or  conversation 
(sec.  3644).  No  /lerson  who  would,  if  a 
part  If  to  the  suit,  be  incom/jetent  to  testify 
therein  hi/  reason  of  interest,  shall  become 
competent  bi/  reason  of  am;  assignment  or 
release  of  his  claim  made  for  the  pur/iose  of 
allowing  such  person  to  testify. 

Connecticut  (Gen.  Stat.  sec.  1098).  No 
person  is  disqualified  as  a  witness  in  any 
action  hi/  reason  of  his  interest  in  the  event 
of  the  same,  as  a  party  or  otherwise,  but  such 
interest  may  be  shown  for  the  purpose  of  af- 
fecting his  credit. 

Delaware  (Laws,  vol.  16,  p.  537,  sec.  1). 
Statutes  in  this  State  are  the  same  as  in 
Arkansas. 

Florida  (Laws,  ch.  101,  sec.  24).  No 
party  to  an  action  or  proceeding,  nor  any 
person  interested  in  the  event  thereof,  nor  any 
person  from,  through,  or  under  whom  any 
such  party  or  interested  jierson  derives  any 
interest  or  title  by  assignment  or  otherwise, 
can  be  a  witness  in  regard  to  any  transaction 
or  communication  between  such  witness  and 


452  LAW   OF    EVIDENCE.  [PART    III. 

decisions  are  given  in  note  (a)  of  this  section.]     The  rule  of  the 


a  person  at  the  time  of  such  examination  de- 
ceased, insane,  or  lunatic,  a<juinst  the  execu- 
tor, administrator,  heir-at-law,  next  of  kin, 
assignee,  lerjatee,  devisee,  or  survivor  of  such 
deceased  person,  or  the  assignee  or  commit- 
tee of  such  insane  person  or  lunatic  ;  but  this 
prohibition  does  not  extend  to  any  transaction 
or  communication  as  to  which  any  such  ex- 
ecutor, administrator,  heir-at-law,  next  of 
Ictn,  assignee,  devisee,  survivor,  or  committee- 
man, IS  examined  on  his  own  behalf,  or  as 
to  which  the  testimony  of  such  deceased  per- 
son or  lunatic  is  given  in  evidence. 

Georgia  (Laws,  1889,  ch.  486,  p.  85, 
sec.  1).  (a)  Where  any  suit  is  instituted 
or  defended  by  a  person  insane  at  the  tune 
of  trial,  or  by  the  personal  representative  of 
a  deceased  person,  the  opposite  party  cannot 
testifi/  in  his  own  favor  against  said  insane 
or  deceased  person,  (b)  Where  any  suit 
is  instituted  or  defended  by  partners  or  per- 
sons jointly  liable  or  interested,  the  opposite 
party  cannot  testify  in  his  own  faror  as  to 
transactions  or  communications  solely  with 
the  insane  or  deceased  partner,  or  person 
jointh/  liable  or  interested,  and  not  also  with 
a  survivor  thereof,  (c)  Where  any  suit  is 
instituted  or  defended  by  a  corporation,  the 
opposite  party  cannot  testify  in  his  own  be- 
half to  transactions  or  communications  solely 
with  the  deceased  or  insane  officer,  or  agent 
of  the  corporation,  and  not  also  with  surviv- 
ing and  sane  persons,  officers,  or  agents  of 
said  corporation,  (d)  Where  a  person  not 
a  party,  but  a  person  interested  in  the  result 
of  the  suit,  is  offered  as  a  idtness  he  cannot 
testify  if,  as  a  party  to  the  cause,  he  would 
for  any  cause  be  incompetent,  (e)  No  agent 
or  attorney-at-law  of  either  party  at  the  time 
of  the  transaction  testified  about  can  testify 
in  favor  of  a  surviving  or  sane  party  under 
circumstances  where  the  principal,  a  party 
to  the  cause,  could  not  testify  ;  nor  can  a 
surviving  party  or  agent  testify  in  his  own 
favor  or  in  favor  of  a  surviving  or  sane 
parti/  as  to  transactions  or  communications 
with  the  deceased  or  insane  agent  under  cir- 
cumstances where  such  a  witness  ivould  be 
incompetent  if  the  deceased  agent  had  been 
principal,  (f)  In  all  cases  where  the  per- 
sonal representative  of  the  deceased  or  insane 
party  has  introduced  a  witness  interested  in 
the  event  of  the  suit,  who  has  testified  as  to 
transactions  on  the  part  of  the  surviving 
party  or  his  agent,  surviving  paiiy  or  agent 
may  be  examined  in  reference  to  such  facts 
testified  to  by  said  ivitness.  (g)  No  per- 
son who  loas  the  agent  or  mutual  friend  of 
both  parties,  or  ivho  acted  as  attorney  or 
counsel  of  both  parties  in  any  transaction, 
can  be  a  loitness  for  the  living  party  touch- 
ing such  transactions. 


Illinois  (Rev.  Stac.  ch.  51,  sec.  1). 
No  person  is  disgualified  as  a  witness  in 
any  civil  action,  except  as  hereinafter  stated, 
bi/  reason  of  his  or  her  interest  in  the  event 
thereof,  as  a  party  or  otherwise,  but  such  in- 
terest may  be  shown  for  the  purpose  of  af- 
fecting the  credibility  of  such  witness.  This 
statute  does  not  lender  any  witness  incom- 
petent, if  he  would  have  been  competent 
before  its  enactment.  Bradshaw  i'.  Combs, 
102  111.  428.  It  is  further  to  be  noticed 
that  the  effect  of  tlie  interest  of  a  witness 
in  the  suit,  or  its  issue,  is  entirely  for  the 
jury,  and  they  are  to  say  whether  or  not 
it  diminishes  the  credibility  of  the  witness. 
Douglass  V.  FuUerton,  7  111.  App.  102. 
The  competency  of  the  witness  under  the 
statute,  however,  is  for  the  court,  and  the 
jury  cannot  reject  his  testimony  when  it 
is  once  admitted  by  the  court.  Wicklift'e 
V.  Lynch,  36  111.  209.  If  a  party  is  ad- 
mitted as  a  witness  under  this  statute,  his 
testimony  is  still  subject  to  the  usual  rules 
as  to  hearsay  and  other  rules  of  evidence 
applicable  to  other  witnesses  in  similar 
causes.  Chicago  v.  O'Brennan,  65  111. 
160  ;  Strong  v.  Lord,  8  111.  App.  539.  It 
is  held  that  this  statute  does  not  remove 
the  disqualification  of  husband  and  wife 
to  testify  for  or  against  each  other.  Mitch- 
ison  v.  Cross,  58  111.  366.  The  right  of  the 
party  to  testify  is  a  personal  privilege,  and 
it  is  not  suliject  of  remark  to  the  jury  if  he 
does  not  choose  to  exercise  this  privilege 
by  going  on  the  stand  and  testifying  in  his 
own  behalf.    Moore  v.  Wright,  90  111.  470. 

(Sec.  2.)  No  party  to  any  civil  action, 
or  person  directly  interested  in  the  event 
thereof,  can  testify  therein  of  his  own  motion, 
or  in  his  own  behalf  by  virtue  of  the  fore- 
going section,  when  any  adverse  party  sues 
or  defends  as  the  trustee  or  conservator  of 
anij  idiot,  habitual  drunkard, lunatic, or  dis- 
tracted person,  or  as  the  executor  or  admin- 
istrator, heir,  legatee,  devisee,  unless  when 
called  as  a  ivitness  by  such  adverse  party  so 
suing  or  defending,  and  also  except  in  the 
cases  set  out  in  certain  subsections  hereafter 
quoted. 

Under  this  paragraph  of  the  statute  it 
is  lield  that  even  a  nominal  party  of  record, 
having  no  interest  in  the  issue  being  tried, 
cannot  testify  against  the  administrator. 
Lowman  v.  Aubery,  72  111.  619.  So,  a 
party  cannot  prove  an  agreement  of  the 
deceased  in  an  action  against  bis  heirs. 
Marshall  v.  Peck,  91  111.  187.  It  has  been 
held  tliat  the  effect  of  the  statute  is  so 
broad  that  when  the  witness  is  by  reason 
of  it  incompetent  to  testify  to  facts,  his 
acts   and   declarations    tending    to   prove 


CHAP.    II.]  COMPETENCY   OP   WITNESSES.  453 

Roman  law  was  the  same.     "  Omnibus  in  re  propria  diccndi  tcs- 


such  facts  cannot  be  proven  by  another 
witness  who  is  himself  coini)etent.  Bnij:;g 
V.  Geddes,  93  111.  39.  In  the  following 
cases  the  general  principle  of  this  section 
was  considered  and  sustained.  Lyon  v. 
Lyon,  3  111.  App.  434;  Tread  way  y.  Tread- 
way,  5  111.  App.  478  ;  Redden  v.  Innian, 
C  111.  Apj).  5.5.  Interest  in  the  suit  also 
dis(inalilies  tiie  witness  as  well  as  being  a 
party.  Richardson  v.  Hadsall,  lOt)  111. 
476  ;  Boester  v.  Byrne,  72  111.  466  ;  Hurl- 
but  V.  Meeker,  104  III.  542  ;  McCJann  v. 
Atherton,  106  111.  31.  This  statute  pre- 
vents an  interested  witness  from  testifying 
to  any  facts  which  occurred  in  the  lifetime 
of  the  deceased  person  as  against  such  de- 
ceased person's  heir.  Ferbrache  v.  Fer- 
brache,  110  111.  210.  It  is  to  be  observed 
that  it  is  only  in  cases  where  some  party 
to  the  record  is  such  in  his  representative 
capacity,  and  this  fact  appears  on  tlie 
record,  that  the  other  party  to  the  record 
is  distj^ualified  as  a  witness.  Robbins  v. 
Moore,  129  111.  57.  If  an  administrator 
presents  a  personal  claim  against  the  estate 
he  represents,  and  another  administrator 
is  appointed  to  defend  that  special  claim, 
it  is  held  that  an  heir  is  not  incompe- 
tent, since  the  action  is  not  by  the  admin- 
istrator in  his  personal  capacity,  but 
personally  (Douglass  v.  Fullerton,  7  111. 
104)  ;  but  it  might  be  queried  whether 
the  special  administrator  who  defends  the 
action  is  not  such  an  administrator  as  is 
within  the  scope  of  the  statute.  The  wife 
of  a  party  interested  in  the  suit  is  not 
competent  under  this  statute.  Warrick  v. 
Hall,  102  111.  280;  Stevens  v.  Hay,  61 
111.  299  ;  Crane  v.  Crane,  81  HI.  166. 

The  phrase  "shall  not  be  allowed  to 
testify  in  his  own  motion  or  ou  his  own 
behalf"  does  not  allow  one  party,  plain- 
tiff or  defendant,  to  call  a  co-plaintiff  or 
co-defendant,  but  allows  only  a  call  from 
the  opposing  party  representing  the  de- 
ceased. Whitmer  V.  Rucker,  71  111.  410. 
The  exceptions  to  the  general  principle 
set  forth  in  §  2  ai-e  stated  in  clauses  1,  2, 
3,  4,  and  5  of  that  section,  and  are  in 
effect  as  follows:  (1)  The  exclusion  does 
not  apply  to  facts  occurrinr/  after  the  death 
of  the  deceased  person,  or  after  the  fiduciary 
capacittj  has  terminated.  See  Straubher  v. 
Mohler,  80  111.  21  ;  Branger  v.  Lucy,  82 
111.  91  ;  In  re  Steele,  65  111.  322  ;  Stewart 
V.  Kirk,  69  111.  509.  (2)  That  if  an>/ 
arjent  of  a  deceased  person  testifies  in  he- 
half  of  any  of  the  persons  above  named,  to 
any  conversation  between  himself  and  the 
opposite  party,  the  latter  may  testify  as 
to   the    same    conversation   or   transaction. 


Marshall  v.  Karl,  60  111.  208  ;  Doulevy  v. 
Montgomery,  66  111.  227.  (3)  If  any  party 
suiny  or  defendiny  in  the  above  Jiduciary 
capacities  testijies  in  his  oivn  behalf,  or  if 
am/  person  directly  interested  in  the  suit  tes- 
tifes  fur  him  as  to  any  conversation  or 
transaction  with  an  opposite  party,  the  latter 
can  also  testify  to  the  same  transaction. 
Penn  v.  Oglesliy,  89  111.  110.  (4)  If  any 
witness,  not  a  party  to  the  record  or  in  in- 
terest, nor  an  ayeni  of  the  deceased  person, 
testifies  in  behalf  of  any  party  as  to  any 
conversation  or  admission  of  the  deceased 
person,  the  adverse  party  may  also  U^stify  to 
the  same  facts.  Stoneciplier  v.  Hall,  64 
111.  121  ;  Richerson  v.  Sternburg,  65  111. 
272.  (5)  //'  the  deposition  of  a  deceased 
person  is  put  in  evidence,  any  adverse  party 
or  interested  person  may  testify  as  to  all  the 
competent  facts  included  in  the  deposition. 

Sec.  4.  A  further  enactment  in  this  State 
is  that  in  any  action  by  or  against  a  surviv- 
ing partner  or  partners,  joint  contractor  or 
contractors,  no  adverse  party,  either  to  the 
record  or  in  interest,  can  testify  as  to  admis- 
sions or  conversations  of  the  deceased  part- 
ner or  joint  contractor ,  unless  some  of  the 
snrvivinq  partners  or  joint  contractors  were 
present  at  the  time  of  the  admission  or  con- 
versation ;  and  further,  that  any  party  to  a 
suit  or  contract  made  with  an  ayent  of  the 
deceased  party  cannot  testify,  if  the  ayent 
has  since  died,  as  to  any  conversation  or 
transaction  between  himself  and  the  agent, 
tinless,  under  sections  two  and  three,  (tbove 
quoted,  he  would  have  been  permitted  to 
testify  if  the  deceased  person  had  been  a 
party  and  not  an  agent. 

Sec.  7.  In  this  State,  also,  no  assignment 
or  release  of  the  witness's  claim  will  make 
him  competent  to  testify. 

Indiana  (Rev.  Stats.,  1888,  sec.  498). 
In  suits  to  lohich  an  executor  or  administra- 
tor is  a  party,  and  in  which  a  judgment  or 
decree  may  be  rendered  for  or  against  the 
estate,  any  necessary  party  to  the  issue  or 
record,  adversely  interested  to  the  estate,  can- 
not testify  as  to  matters  tvhich  occurred  dur- 
ing the  lifetime  cf  the  decedent ;  but  if  the 
deposition  of  the  decedent  has  been  taken,  or 
he  has  previously  testified,  and  his  deposi- 
tion or  testimony  can  be  used  as  evidence 
for  the  executor  or  administrator,  then  the 
adverse  party  may  testify  as  to  any  matters 
included  in  tlt,e  deposition  or  testimony. 

Sec.  499.  When  an  heir  or  devisee  is  a 
party  to  the  suit  which  is  on  a  contract  with 
or  demand  against  the  ancestor  to  obtain  title 
or  possession  of  any  property  or  right  of  the 
ancestor,  or  to  affect  the  same  in  any  manner, 
neither  party  can  teslifi  as  to  any  matter 
occurring  prior  to  the  death  of  the  ancestor. 


454 


LAW    OF    EVIDENCE. 


[part    III. 


timonii  facultatem  jura  siibmoverunt. "  '-^     This  rule  of  the  com- 


2  Cod.  lib.  4,  tit.  20,  1.  10. 
22,  tit.  5,  1.  10. 


Nullus  idoneus  testis  iu  re  sua  iiitelli^itur.     Dig.  lib. 


Sec.  500.  If  anji  agent  of  the  decedent 
testijits  fur  the  executor,  adnunistrutor,  or 
heirs  as  to  am/  transaction  bi/  him  as  such 
a;/ent  with  a  party  to  the  suit,  or  the  assignor 
or  grantor  of  such  purti/  in  the  absence  of 
the  decedent,  or  if  any  ivitiiess  testifies  for 
the  executor,  administrator,  or  heirs  as  to 
any  conversation  or  ad  mission  of  the  party  to 
the  suit,  his  assi(jnor  or  grantor,  in  the  ab- 
sence of  the  decedent,  then  the  party  against 
whom  such  evidence  is  given  and  his  as- 
signor or  grantor  can  testify  to  the  same 
matters.  An  agent  cannot  testify  in  behalf 
of  his  principal  as  to  matters  concerning  the 
makinij  of  a  contract  with  one  now  deceased, 
as  against  the  heirs  or  legal  representatives 
of  tlie  deceased  person,  unless  he  is  called 
by  them,  and  then  only  as  to  such  matters  as 
he  may  be  inquired  of  by  them.  In  any 
case  where  a  person  charged  with  unlawfully 
taking  and  detaining  personal  property,  or 
damaqing  the  same,  and  pleads  a  right  as 
executor,  administrator,  guardian,  or  heir, 
no  person  can  testify  against  him  who  would 
not  be  competent  if  the  person  defending 
were  thecomjilainant ;  but  if  the  complainant 
cannot  testify  for  this  reason,  then  the  de- 
fendant is  also  excluded. 

Sec.  502.  In  am/  case  in  which  an  ex- 
ecutor, administrator,  heir,  or  devisee  is  a 
party,  and  one  of  the  parties  is  incompetent 
to  testify  against  them,  then  the  assignor  or 
grantor  of  the  party  making  the  assignment 
or  grant  voluntarily  shall  be  deemed  the  ad- 
verse party,  and  in  all  cases  under  sections 
498,  499,  and  500,  any  party  to  such  a  suit 
can  cull  the  op/msite  party  and  examine  him 
as  a  hostile  witness,  and  in  general  the  court 
can  order  any  witness  to  testify. 

Sec.  503.  In  all  actions  by  an  executor 
or  administrator  on  a  contract  assigned  to 
the  deceased,  if  the  assignor  is  alive  and 
competent,  the  executor  or  administrator, 
and  the  defendant  or  defendants  are  com- 
petent witnesses  as  to  ail  matters  occurring 
between  the  assignor  and  the  defendant  prior 
to  notice  of  such  assignment. 

The  term  "  party  "  means  that  the  per- 
son must  be  substantially  interested  in  the 
result  of  the  suit,  and  does  not  include  a 
nominal  party  to  the  record.  Scherer  v. 
Iiigennan,  110  Ind.  442  ;  Spencer  v.  Rob- 
bins,  106  Ind.  580;  Martin  v.  Martin,  118 
Ind.  233  ;  Starret  v.  Burkhalter,  86  Ind. 
439.  The  contract  or  matter  involved 
must  be  one  in  which  the  deceased  had 
some  interest,  and  not  one  transacted  en- 
tirely between  third  parties.  Taylor  v. 
Duesterberg,   109  Ind.    170.     The   provi- 


sion in  this  State  relating  to  the  testi- 
mony of  an  agent  ap[)lies  wllen  an  agent 
has  acted  for  his  principal  in  the  making 
of  a  contract  ;  but  whether  it  can  be  ap- 
plied iu  any  case  where  the  parties  to  tlie 
contract  are  all  present  when  it  is  entered 
into,  has  not  yet  been  decided  in  this 
State.  Piper  v.  Fosher,  121  Ind.  412. 
Generally  speaking,  under  the  statute  of 
this  State,  three  things  must  concur  in 
order  to  exclude  the  testimony  of  the  sur- 
viving adverse  interested  party  :  (1)  Tlie 
transaction  or  subject-matter  thereof  must 
be  in  some  way  directly  involved  in  the 
action  or  proceeding,  and  it  must  appear 
that  one  of  the  parties  to  the  transaction 
about  to  be  proved  is  dead.  (2)  The  right 
of  the  deceased  party  must  have  passed  by 
his  own  act,  or  that  of  the  law,  to  another 
who  represents  him  in  the  action,  or  pro- 
ceeding, in  the  character  of  executor,  ad- 
ministrator, or  in  some  other  manner  in 
which  he  is  authorized  by  law  to  bind  the 
estate.  (3)  It  must  appear  that  the  al- 
lowance to  be  made,  or  the  judgment  to 
be  rendered,  may  either  directly  or  indi- 
I'pctly  affect  the  estate  of  the  decedent. 
Durham  v.  Shannon,  116  Ind.  405.  This 
statute  has  also  been  construed  iu  the  re- 
cent case  of  Taylor  v.  Duesterberg,  109 
Ind.  165,  as  giving  a  test  of  competency 
which  depends  not  .so  much  upon  the  spe- 
cific fact  to  which  the  adverse  party  is 
called  upon  to  testify  as  upon  the  subject- 
matter  involved  in  the  issue  in  the  case. 
When  the  subject-matter  involved  in  a 
suit  or  proceeding  is  such  that  one  of  the 
])arties  to  the  contract  or  transaction  in- 
cluded in  the  issue  is  dead,  the  policy  of 
the  statute  is  to  close  the  lips  of  the  other 
in  respect  to  such  matter.  When,  how- 
ever, the  transaction  in  question  is  some- 
thing in  which  the  decedent  in  his  lifetime 
never  had  any  interest  or  concern,  it  can- 
not be  so  involved  in  a  suit  by  his  per- 
sonal representative  as  to  preclude  the 
parties  interested  in  the  transaction,  al- 
though it  may  come  colhtterally  in  ques- 
tion, from  confirming  it  by  their  own 
testimony.  The  true  spirit  of  the  statute, 
as  stated  in  the  above  case,  is  held  to  be 
that,  when  a  party  to  the  subject-matter  or 
contract  in  question  is  dead,  and  his  rights 
in  the  thing  or  contract  have  passed  to 
another  wlio  represents  him  in  the  action 
or  proceeding  which  involves  such  con- 
tract or  subject-matter  to  which  the  de- 
ceased was  a  party,  the  surviving  party  to 


CHAP.   II.] 


COMPETENCY   OF   WITNESSES. 


455 


mon  law  is  founded,  not  solely  in  the  consideration  of  interest, 


that  subject-matter  or  transaction  shall 
not  testily  to  matters  occurring  duriu'?  the 
lifetime  of  the  decedent.  Taylor  v.  Dues- 
terberg,  supra.  This  statute  does  not 
cover  matters  which  come  to  the  witness's 
knowledge  after  the  death  of  the  opjiosite 
party,  consetiuently  tlie  widow  of  an  in- 
testate was  permitted  to  testify  in  a  case 
brought  by  his  administrator  as  to  matters 
with  which  she  became  accpiainted  subse- 
quent to  her  husband's  death  ;  or  as  to 
matters  which  were  open  to  the  knowledge 
of  all  jiersons  who  knew  tlie  i)arties. 
Louisville,  New  Alb.  &  Chic.  Ky.  Co.  v. 
Thompson,  107  Ind.  444  ;  Lamb  v.  Lamb, 
105  Ind.  456. 

Iowa  (Rev.  Code,  1886,  sec.  3639). 
No  parly  to  any  action,  nor  any  person 
from,  tlirow/h,  or  under  whom  any  such  party 
or  interested  person  derives  any  interest  or 
title  btj  assignment  or  otherwise,  and  no  hus- 
band or  wife  of  any  said  party  or  ]ierson, 
can  testify  in  rei;ard  to  any  personal  trans- 
action or  communication  between  such  witness 
and  a  person  at  the  commencement  of  such 
examination  deceased,  insane,  or  lunatic, 
aqainst  the  executor,  administrator,  heir-at- 
law,  next  of  kin,  assif/nee,  legatee,  devisee,  or 
swvivor  of  such  deceased  person,  or  the  as- 
signee or  (juardian  of  such  insane  person  or 
lunatic.  But  this  prohibition  does  not  extend 
to  ani/  transaction  or  communication  as  to 
which  any  of  the  above-mentioned  represen- 
tatives is  examined  on  his  own  behalf,  or 
as  to  which  the  testimony  of  such  deceased  or 
insane  person  or  lunatic  shall  be  given  in 
evidence.  Under  this  statute  it  is  held 
tliat  in  a  proceeding  to  interpose  a  claim 
against  an  estate,  the  administrator  is  a 
competent  witness  to  prove  on  behalf  of 
the  estate  that  the  claim  had  been  settled 
prior  to  the  death  of  the  decedent.  Stiles 
V.  Botkin,  30  Iowa,  60.  So,  in  an  action 
against  an  administrator  on  a  promissory 
note  by  an  assignee  thereof,  the  payee  is  a 
competent  witness  for  the  plaintiff.  Bur- 
roughs V.  McLain,  37  Iowa,  189.  Where 
the  party's  testimony  does  not  relate  to 
personal  transactions  or  conimunications 
between  himself  and  the  deceased,  he  is 
not  disqualified  under  this  section  of  the 
statute.  Sypher  v.  Savery,  39  Iowa,  258. 
The  interest  which  will  disqualify  a  wit- 
ness must  be  such  an  interest  as  would 
disqualify  him  at  common  law;  if  he  is 
interested  equally  on  both  sides,  he  is 
competent.  Goddard  v.  Leffingwell,  40 
Iowa,  249. 

Kansas  (Gen.  Stats.  1889,  sec.  4417). 
This  section  provides  that  no  party  can  tes- 
tify in  his  own  behalf  as  to  transactions  or 


communications  had  personalty  by  him  with 
a  deceased  person  when  the  adverse  party  is 
an  executor  or  administrator,  heir-at-law, 
next  of  Icin,  surviving  partner  or  assignee  of 
the  deceased,  if  they  acquired  title  in  the 
cause  of  action  immediately  from  the  de- 
ceased, nor  can  the  assigtior  of  the  cause  of 
action  testify  in  behalf  of  such  party  as  to 
any  such  transaction  or  communication  with 
the  deceased  jxirtner  or  joint  contractor,  in 
the  absence  of  the  surviving  partner  or  joint 
contractor,  if  the  surviving  partner  or  joint 
contractor  is  an  adverse  part//.  The  statute 
also  contains  the  usual  provision  that  intro- 
ducing the  testimony  of  the  deceased  party 
does  away  with  the  exclusion  of  the  statute. 

Maine  (Rev.  Stats.  1833,  ch.  82,  .sec. 
98).  Parties  and  those  interested  in  the 
event  of  the  suit  are  excluded  in  this  .State 
from  testifying,  if  at  the  time  of  the  trial 
any  party  to  the  suit  is  an  executor  or  admin- 
istrator, or  is  a  party  as  heir  of  a  deceased 
party.  This  exclusion,  however,  is  subject 
to  the  followinq  exceptions  :  F'irst,  —  intro- 
ducing the  testimony  of  a  deceased  party  at 
a  former  trial,  or  his  deposition,  waives  the 
exclusion  ;  second,  —  if  the  executor,  adminis- 
trator, or  other  representative  of  a  deceased 
person  is  a  party  and  testifies,  this  also 
waives  the  exclusion  ;  third,  —  the  exclusion 
does  not  apply  to  facts  happening  after  the 
death  of  the  deceased ;  fourth,  —  if  the  repre- 
sentative party  is  nominal  onhj,  both  parties 
may  testify ;  if  the  adverse  party  is  nominal 
only,  or  has  parted  with  his  interest  during 
the  lifetime  of  the  decedent,  he  may  be  called 
by  either  party ;  and  in  actions  against  a 
personal  representative,  if  the  plaintiff  is 
nominal  only  or  disposed  of  his  interest  in 
the  lifetime  of  the  decedent,  neither  party  is 
excluded ;  fifth,  —  the  usual  exception  as  to 
account-books  of  the  decedent  exists,  and 
their  introduction  authorizes  the  other  party 
to  testify  in  regard  to  them  ;  sixth,  —  if  the 
personal  representative  of  a  decedent  is  one 
party  and  an  heir  is  the  other  party,  the  heir 
may  testify  if  any  other  heir  testifies  for  the 
personal  representative. 

Under  this  statute  the  rule  is  that  the 
executor  or  administrator  may  offer  to  tes- 
tify himself,  and  if  he  does  so,  he  makes 
the  other  party  competent  to  testify. 
Kelton  V.  Hill,  59  Me.  259  ;  Brooks  v. 
Goss,  61  Me.  307;  Haskell  v.  Hevvey,  74 
Me.  197.  The  rule  includes  the  executors 
of  one  who  is  in  prison  under  sentence  of 
death,  who  is  considered  in  that  State  as 
dead,  and  his  estate  is  administered  as 
such.  Knight  v.  Brown,  47  Me.  468. 
There  is  also  in  that  State,  as  noted  above, 
an  exception  to  this  general  incompetency, 
when  the  executor  or  administrator  is  a 


456 


LAW   OF   EVIDENCE. 


[part   III. 


but  partly  also  in  the  general  expediency  of  avoiding  the  multi- 


nominal  party ;  but  he  is  not  such  a 
nominal  party  when  he  brings  suit  in  his 
own  name  on  a  note  payable  to  the  de- 
ceased. Wing  v.  Andrews,  59  Me.  505. 
If  the  question  in  suit  is  whether  certain 
articles  belonged  to  the  estate  or  not,  both 
parties  are  competent  witnesses,  the  case 
not  coming  under  the  rule.  Beach  i;.  Pen- 
nell,  50  Me.  587.  It'  the  surviving  party 
to  a  transaction  puts  in  evidence  a  memo- 
raudutn  in  writing  by  the  deceased,  he 
must  leave  it  to  speak  for  itself,  or  else 
explain  it  by  disinterested  witnesses.  He 
cannot  testify  as  to  its  meaning  himself 
(Berry  v.  Stevens,  69  Me.  290),  but  if 
such  memoranda,  for  exain[)le,  account- 
books,  are  introduced  by  the  executor  or 
administrator,  the  other  party  may  testify 
as  to  them.  Hubbard  v.  Johnson,  77  Me. 
1.39.  The  rule  does  not  cover  persons 
merely  interested  in  the  suit,  but  only 
parties  to  the  record.  Rawson  v.  Knight, 
73  Me.  340  ;  Alden  v.  Goddaid,  73  Me. 
346;  Haskell  v.  Hervey,  74  Me.  197.  It 
prevents  an  executor  or  administrator  from 
testifying  in  his  own  behalf  to  support  a 
private  claim  of  his  own  against  the  estate. 
Preble  v.  Preble,  73  Me.  ^362.  The  rule, 
also,  does  not  cover  facts  occurring  after 
the  death  of  the  deceased.  Swasey  v. 
Ames,  79  Me.  483. 

If  one  of  two  defendants  in  a  suit  is 
discontinued,  he  thereby  becomes  a  compe- 
tent witness  in  the  case  ;  for  the  statute 
only  applies  to  persons  who  are  parties, 
and  those  who  are  not  parties  to  the  suit, 
although  they  may  be  directly  interested 
in  the  result,  are  competent  witnesses. 
Segarv.  Lufkin,  77  Me.  143;  Haskell  v. 
Hervey,  74  Me.  192.  In  reference  to  this 
statute,  it  has  been  decided  in  a  recent 
case  in  Maine  (Hall  v.  Otis,  77  Me.  125), 
that  the  statute  as  it  now  stands  confines 
the  adverse  party  who  is  admitted  to  tes- 
tify by  the  testimony  of  the  administrator 
to  such  facts  as  the  administrator  testifies 
to,  and  cannot  testify  to  the  whole  trans- 
action to  which  such  facts  are  pertinent. 
A  previous  statute  on  this  subject  used 
the  words  "matters"  instead  of  "  facts," 
which  the  court  comments  upon  in  giving 
its  opinion.  The  same  point,  as  showing 
an  intent  of  the  legislature  to  change  the 
scope  of  the  statute,  was  ruled  in  Hubbard 
r.  Johnson,  77  Me.  142.  If  in  a  bill  in 
equity  defendants  are  made  parties.  "  as 
heirs  of  the  deceased  party,"  the  com- 
plainant in  the  case  cannot  testify. 
Hinckley  v.  Hinckley,  79  Me.  322  ;  Hig- 
gins  V.  Butler,  78  Me.  520.  But  the  per- 
son who  claims  in  her  own  right  property 


which  she  inherited  from  her  mother,  is 
not  a  party  to  the  suit  in  the  capacity  of 
"heir  of  a  deceased  party."  Johnson  r. 
Merithew,  80  Me.  113. 

Maryland  (Pub.  Gen.  Laws,  art.  35, 
sec.  1,  2.  and  5).  In  this  State,  neither  par- 
ties nor  interested  persons,  nor  their  husbands 
nor  wives  are  excluded  bij  reason  of  their  in- 
terest in  the  case,  except  under  the  followinf/ 
circumstances  :  if  the  original  parti/  to  a  con- 
tract or  cause  of  action  is  dead  or  insane,  or 
if  an  executor  or  administrator  is  a  party  to 
the  suit,  neither  parti/  can  testifi/  on  his  own 
qlfer  or  bi/  request  of  his  co-/)urties,  unless  he 
is  merely  a  nominal  parti/ ;  exce/jt  that  if  the 
deceased  person  or  lunatic  has  testified  al- 
readi/ ;  exce/tt,  also,  if  the  personal  re/ire- 
sentative  or  quardian  testifies  to  any  con- 
versation with  the  other  parti/,  either  may  be 
examined  as  a  witness  thereto;  moreover,  the 
statute  jjrorides  that  no  party  who  has  been 
examined  as  a  icitness  can  corroborate  his  testi- 
mony iihen  imjxached,  by  proof  of  his  own 
declarations  or  statements  outside  of  the  trial, 
and  not  in  the  /iresence  of  the  o/)j)osite  party. 
And  the  statute  also  provides  that  if  the  con- 
tract or  cause  of  action  was  made  or  con- 
tracted with  an  ar/ent,  the  death  or  insanity 
of  the  princi/ial  does  not  prevent  any  parti/ 
to  the  suit  from  being  a  witness  if  the  aqent 
is  alive  and  competent  to  tf-stify  ;  and  the 
statute  further  provides  that  the  interest  of 
any  witness  may  always  be  shown  to  affect 
his  credibility. 

Under  these  statutes  it  is  held  that  a 
prochein  avii  is  not  a  party  to  the  suit. 
Trahern  ■;;.  Colbum,  63  Md.  104.  The 
statute  excludes  the  executor  or  adminis- 
trator from  testifying  on  his  own  offer  as 
well  as  the  surviving  party;  but  if  the 
executor  takes  the  stand  and  testifies,  and 
the  other  party  objects  to  some  of  his  testi- 
mony and  not  to  other  parts  of  it,  the  parts 
not  excepted  to  will  stand  as  evidence 
ia  the  cause,  the  objection  having  been 
waived  pro  tunto  (Dilley  v.  Love,  61  Md. 
607)  ;  but  cross-examining  before  the  au- 
ditor in  an  equity  proceeding  does  not 
prevent  taking  the  objection  at  the  hear- 
ing in  the  equity  court.  Dodge  r.  Stan- 
hope, 55  Md.  121.  The  design  of  the 
statute  in  admitting  parties  to  suits  to 
testify  at  their  own  instance  has  been  said 
in  this  State  to  be  to  provide  that  they 
should  do  so  on  terms  of  perfect  equality 
as  to  knowledge,  or  means  of  knowledge, 
of  the  subject-matter  in  controversy  about 
which  they  were  to  .speak,  and  not  to  al- 
low one  living  to  testify  to  his  version  of 
a  transaction,  when  he  could  not  be  con- 
fronted by  the  other  or  adverse  party  with 
whom  the  actual  transaction  took  place,  in 


CHAP.    II.] 


COMPETENCY   OF   WITNESSES. 


457 


plication  of  temptatious  to  perjury.     In  some  cases  at  law,  and 


consequence  of  the  de  ith  or  insanity  of  the 
latter  (Johnson  v.  Heaki,  33  Md.  3o'2,  368); 
and  the  general  provisions  removing  the 
incompetency  of  parties  should  not  be 
further  restricted  than  this  reason  for  the 
exception  requires.  When,  tlierefore,  a 
contract  is  made  with  a  partnership  com- 
posed of  a  great  number  of  peisons,  some 
of  whom  are  active  in  the  business  and 
others  not,  or  some  of  them  reside  abroad 
and  have  no  personal  knowledge  of  the 
transaction  of  the  firm,  — in  such  case  it 
would  neither  comport  with  the  design  of 
the  legislature,  nor  the  reason  of  the  thing, 
to  exclude  tlie  parties  to  the  actual  trans- 
action merely  because  one  of  the  non-active 
or  non-resident  teclinieal  co-contractors 
should  hnppen  to  die  after  the  contract 
was  made.  H.udy  v.  Chesapeake  Bank, 
61  Md.  596. 

In  proceedings  for  probate,  before  the 
will  has  been  probated,  the  executor  nomi- 
nated in  the  will  is  not  under  the  statute, 
but  may  testify  in  Ins  own  behalf  (SchuU 
V.  Murray,  32  Md.  9)  ;  but  in  a  proceed- 
ing by  an  executor  or  administrator  against 
a  third  person  for  concealing  part  of  the 
intestate's  jtroperty,  the  defendant  is  un- 
der the  statute  and  incompetent.  Cannon 
V.  Crook,  32  Md.  482.  So  in  a  contro- 
versy between  an  alleged  wife  and  the  ad- 
ministrator of  her  alleged  deceased  hus- 
band, in  regard  to  her  right  to  a  distributive 
share  of  the  estate,  she  is  incompetent  to 
testify  as  to  the  marriage  (Denison  v.  Deni- 
son,  35  Md.  361  ;  see  Redgrave  v.  Red- 
grave, 38  Md.  93)  ;  but  in  a  contest  be- 
tween the  wife  and  nephews  and  nieces  as 
to  the  distribution  of  the  estate,'  they  are 
competent  witnesses  to  testify  as  to  their 
legitimacy.  Jones  v.  Jones,  36  Md.  447. 
In  an  action  on  a  joint  note,  one  of  the 
makers  being  dead,  it  is  not  competent 
for  the  payee  and  plaintiff,  in  order  to  re- 
move the  statute  of  limitations,  to  testify 
to  a  payment  made  by  the  deceased  maker, 
and  endorsed  on  the  note  in  his  own  hand- 
writing.    Miller  v.  Motter,  35  Md.  428. 

The  question  of  what  effect  the  death 
of  an  agent  who  makes  a  contract  for  a 
corporation  has  upon  the  testimony  of 
the  other  party  to  the  contract,  if  he 
brings  suit  thereon,  was  considered  in  the 
case  of  South  Baltimore  Co.  v.  Muhlbach, 
69  Md.  401.  In  this  case  one  Harrison, 
a  director  in  the  defendant  company  and 
an  agent  thereof,  made  a  contract  with  the 
plaintiff.  The  court  held  that  he  was  not 
an  original  party  to  the  contract  in  any 
legal  or  technical  sense  ;  tliat  the  parties 
to  the  contract  were  the  defendant  corpo- 


ration and  the  plaintiff  ;  that  the  death  of 
the  agent  did  not  affect  in  any  way  the 
plaintiff's  testimony  as  a  witness  for  him- 
self, citing  for  this  point  the  cases  of  City 
Bank  of  Baltimore  v.  Bateman,  7  Harri- 
son &  Johnson,  84  ;  Spencer  v.  Trafford, 
42  Md.  17.  The  court  further  .say  that  if 
such  a  rule  obtained,  it  would  have  to  be 
mutual  in  its  operation  ;  it  would  exclude 
as  witnesses  many  persons  who  had  been 
competent  before  the  passage  of  the  Evi- 
dence Act,  a  result  which  would  contra- 
vene both  the  spirit  and  letter  of  the  Acts 
which  are  intended  to  extend  and  not  to 
restrict  the  number  of  persons  competent 
to  testify. 

Massachusetts  (Pub.  Stat.  ch.  169,  sec. 
18).  In  tins  State,  all  persons  are  competent, 
but  their  interest  may  be  shown  to  affect  their 
credibility. 

Michiga7i  (Howell's  Annot.  Stat.  sec. 
7545).  In  this  State,  when  an  heir,  assignee, 
devisee,  legatee,  or  personal  representative  of 
a  deceased  person  is  a  party,  the  other  party 
cannot  testify  us  to  matters  equally  within  the 
knowledge  of  the  deceased  person  ;  moreover, 
if  a  surviving  partner  is  a  party,  the  other 
parly  cannot  testify  as  to  matters  which  were 
within  the  knowledge  of  the  deceased  partner 
and  not  within  the  knowledge  of  the  surviving 
partner.  If  a  corporation  is  a  party,  the 
other  party  cannot  testify  to  matters  which 
must  have  been  equally  icithin  the  knowledge 
of  a  deceased  officer  or  agent  of  the  corpora- 
tion, and  not  within  the  knowledge  of  any 
surviving  officer  or  agent.  If  the  action  is 
by  persons  representing  a  deceased  person 
against  a  corporation,  no  officer  or  agent  of 
the  corporation  can  testify  to  matters  which 
must  have  been  equally  ivifhin  the  knotvledqe 
of  the  deceased  person.  The  words  "  oppo- 
site party  "  are  defined  to  include  the  assign- 
ors or  assignees  of  the  claim  in  suit,  or  any 
part  thereof.     See  Supp.  1890. 

This  statute  only  applies  in  cases  where 
the  estate  is  in  some  way  one  of  the  par- 
ties, and  the  heirs,  assigns,  devisees,  or 
legatees,  are  the  others.  It  does  not  apply 
when  a  will  is  presented  for  probate  and 
the  probate  is  contested.  In  such  a  case 
the  proponent  of  the  will  may  testify  as 
to  an  agreement  between  himself  and  the 
testator,  b}'  which  the  latter  agreed  to 
leave  him  all  the  property  in  the  manner 
in  which  the  will  (lisposed  of  it  (Brown  v. 
Bell,  58  Mich.  58)  ;  or  a  legatee  may  tes- 
tify as  to  conversations  with  the  deceased 
about  the  will.  Schofield  v.  Walker,  58 
Mich.  98.  It  covers  only  parties  to  the 
record  ;  and  as  to  them  only  matters  shown 
to  be  within  the  knowledge  of  the  deceased. 


458  LAW   OF   EVIDENCE.  [PART   III. 

generally  by  the  course  of  proceedings  in  equity,  one  party  may 


Bassett  v.  Shepanlson,  52  Mich.  3.  If  the 
representative  oi'  the  deceased  puts  into 
the  case  the  admissions  of  the  other  jjarty 
as  to  facts  under  the  statute,  he  so  far 
waives  the  rule,  and  the  surviving  party 
may  exphiin  tliese  admissions.  Sinitli's 
App.  52  Mich.  415.  A  mere  colorable  as- 
signment of  a  party's  interest  in  the  suit 
will  not  render  him  competent  to  testify  in 
the  case.     Buck  v.  Haynes,  75  Mich.  399. 

Minnesota  (Stats.  (Kelley)  1891,  sec. 
5093).  No  party  to  an  action  or  interested 
in  the  event  thereof  can  give  evidence  therein 
of,  or  concerning  any  conversation  ivith,  or 
admission  of  a  deceased  or  insane  party  or 
person  relative  to  any  matter  at  issue  between 
the  parties. 

Under  this  statute  it  has  been  held  that 
if  a  party  ofiering  evidence,  which  prima 
facie  would  include  conversations  or  ad- 
missions of  a  deceased  person,  intends  to 
limit  it  so  as  to  avoid  such  conversations, 
he  must  show  such  limitation  in  his  ofler, 
and  cannot  rely  upon  proving  in  the  Ap- 
pellate Court  that  the  testimony  which 
he  offered  did  not  include  objectionable 
testimony.  Khodes  v.  Pray,  36  Minn. 
395.  The  phrase  "interest  in  the  event 
of  the  action"  under  this  statute  means 
such  interest  as  would  disqualify  the  wit- 
ness at  common  law.  Beard  v.  First  Nat. 
Bank  of  Minneapolis,  39  Minn.  547. 

Sec.  5095.  Neither  parties  nor  other 
persons  who  have  an  interest  in  the  event  of 
an  action  are  excluded,  although  in  every  case 
the  credibility  of  the  witness  may  be  drawn 
in  question. 

Mississippi  (?x.ev.  Code,  1880,  sec.  160'2). 
In  this  State,  no  person  can  testfy  to  establish 
his  own  claim  against  the  estate  of  a  deceased 
person,  ichich  originated  during  the  lifetime 
of  the  decedent,  or  any  claim  he  has  trans- 
ferred since  the  death  of  the  decedent ;  but 
such  person,  so  interested,  may  give  evidence 
in  support  of  the  demand  against  the  estate 
which  originated  after  the  death  of  the  de- 
ceased person  in  the  course  of  administering 
the  estate. 

Missouri  (Rev.  Stat.  1889,  sec.  8918). 
In  this  State,  interested  persons  can  testify, 
their  interest  going  only  to  their  credibility, 
except  that  if  one  of  the  parties  to  the  con- 
tract or  cause  of  action  in  issue  or  on  trial, 
is  dead  or  insane,  the  other  party  to  the  con- 
tract or  cause  of  action  cannot  testify  in  his 
own  favor  or  in  favor  of  any  party  to  the  ac- 
tion claiming  under  him  ;  and  no  party  to 
the  contract  who  claims  from  one  excluded  by 
the  foregoing  disqualification  can  himself  tes- 
tify in  his  own  favor;  moreover,  if  an  ex- 
ecutor or  administrator  is  a  party  the  other 


party  cannot  testify  in  his  own  favor  unless 
the  contract  was  originally  made  with  a  per- 
son alive  and  competent  to  testify,  except  as 
to  acts  and  contracts  done  and  made  since 
the  probate  of  the  will,  or  the  appointment  of 
the  executor. 

Tills  statute  has  been  construed  by  the 
courts  to  be  enacted  for  the  purpose  of 
rendering  competent  persons  who  would 
otherwise  have  been  incompetent  witnesses, 
and  should  be  so  construed,  and  not  as  a 
disabling  statute  (Bates  v.  Forcht,  89  Mo. 
121),  except  so  far  as  is  therein  stated  in 
regard  to  actions  where  one  of  the  original 
parties  to  the  cause  of  action  or  contract 
is  dead  or  insane.  Allen  v.  Carter,  8  Mo. 
Ai)p.  585  ;  Dolan  v.  Kehr,  9  Mo.  App. 
351;  Carter  v.  Prior,  78  Mo.  222;  Fyke  i'. 
Lewis,  15  Mo.  App.  588;  Pritchett  v. 
Reynolds,  21  Mo.  Ajip.  674.  And  where  at 
common  law  one  party  to  a  suit  is  a  com- 
petent witness  he  will  still  be  comjietent  un- 
der this  statute,  although  the  other  party 
to  the  contract  or  cause  of  action  is  dead  or 
insane.  Angell  v.  Hester,  64  Mo.  142.  If 
the  contract  in  issue  was  made  on  one  side 
by  two  persons,  one  of  whoin  has  since 
died,  the  adverse  party  is  not  rendered  in- 
competent thereby,  since  there  still  exists 
one  party  living  who  can  testify  as  to  the 
facts  which  occurred  in  forming  the  con- 
tract in  question  (Fulkerson  v.  Thornton, 
68  Mo.  468;  Wallace  v.  Jecko,  25  Mo.  App. 
313) ;  but  if  the  contract  is  made  with  a 
partnership,  and  one  of  the  partners  dies, 
then,  the  other  partner,  not  having  per- 
sonal knowledge  of  the  transaction  in 
question,  the  adverse  party  to  the  con- 
tract, is  hereby  rendered  incompetent  un- 
der the  statute.  Williams  v.  Perkins,  83 
Mo.  379  ;  Wiley  v.  Morse,  30  Mo.  App. 
266. 

Montana  (Compiled  Stat.  Code,  Civ. 
Proc.  Sec.  647).  Neither  parties  nor  other 
persons  icho  have  an  interest  in  the  event  of 
the  action  or  proceeding  are  excluded,  although 
in  every  case  the  credibility  of  the  witness  may 
be  drawn  in  question. 

Sec.  648.  No  person  shall  be  allowed  to 
iestifij,  under  provision  of  the  last  section, 
ichere  the  adverse  party,  or  the  party  for  whose 
immediate  benefit  the  action  or  proceeding  is 
prosecuted  or  defended,  is  the  representative 
of  a  deceased  person,  when  the  facts  to  be 
proved  transpired  before  the  death  of  such  de- 
ceased person  ;  and  nothing  in  said  section 
shall  affect  the  laws  in  relation  to  attestation 
of  any  instrument  required  to  be  attested. 

Nebraska  (Code,  p.  672,  sec.  329).  In 
this  State,  no  person  having  a  direct  legal  in- 
terest in  the  result  of  a  civil  action  can,  if  the 


CHAP.    II.] 


COMPETENCY   OF    WITNESSES. 


459 


appeal  to  the  conscience  of  the  other,  by  calling  him  to  answer 


(idverse  parti/  represents  a  deceased  person, 
testify  as  to  unj/  transaction  or  conversation 
had  ktween  the  deceased  person  and  the  wit- 
wss.  unless  the  evidence  of  the  deceased  person 
IS  put  in  evidence  bij  the  adverse  partu,  or  un- 
less the  representative  of  the  deceased  person 
puis  in  testimony  as  to  the  transaction  or  con- 
versation in  question,  in  either  of  which  cases 
I  he  exclusion  is  waived. 

Nevada  (Gen.  Stat.  1885,  sec.  3399  (s. 
377)  and  sec.  3401  (s.  379)).  In  this  State, 
no  person  interested  in  the  suit  can  testify 
v:hen  the  other  party  to  the  transaction  is 
dead,  or  when  either  the  opposite  party  to  the 
transaction,  or  the  person  immediately  inter- 
ested in  the  action,  rejiresents  a  deceased 
person,  that  is,  as  to  farts  occurring  before 
the  death  of  the  deceased  person  ;  hut  if  the 
deceased  person  acted  in  the  transaction 
through  an  agent  who  is  living  and  who  testi- 
fies in  favor  of  the  representative  of  the  de- 
ceased person,  then  the  other  party  to  the 
transaction  may  also  testify  as  to  it. 

New  Hampshire  (Pub.  Stat.  1891 
(Comui's  Rc]>.),  ch.  223,  sees.  13,  16,  17, 
and  18).  These  statutes  provide  that  if 
one  party  is  an  executor  or  administrator,  or 
a  guardian  of  an  insane  person,  neither  party 
can  testify  as  to  facts  occuiring  in  the  lifetime 
of  the  deceased,  or  prior  to  the  ward's  insan- 
ity, unless  the  representative  parly  testifies 
thereto,  or  unless  the  court  considers  the  testi- 
mony necessary  ;  but  if  either  party  to  the 
record  is  a  nominal  parly,  and  the  party 
whose  interest  he  represents  is  an  executor, 
administrator,  or  insane,  the  other  party  can- 
not testify  unless  the  representative  party 
testifies  himself,  or  offers  the  testimony  of  the 
other  party  of  record. 

These  sections  apply  to  a  common-law 
action  for  an  account  as  well  as  in  other 
suits.  English  v.  Porter,  63  N.  H.  213. 
The  administrator  or  executor  i.s  the  only 
one  who  can  object  to  the  other  party  tes- 
tifying, and  if  he  does  not,  or  it  he  con- 
sents, such  testimony  is  competent.  Marcy 
V.  Amazeen,  61  N.  H.  133  ;  P>unis  v. 
Madigan,  60  N.  H.  197.  The  rule  does 
not  cover  j)arties  in  interest,  but  only  par- 
ties to  the  record,  except  as  to  the  admin- 
istrator or  executor  (Wilson  v.  Russell, 
61  N.  H.  355)  ;  nor  does  it  cover  suits 
against  the  executor  or  administrator 
])ersonally,  as  when  it  is  brought  for  a 
tort  committed  by  him  (Harrington  v. 
Tremblay,  61  N.  H.  413)  ;  nor  where  the 
executor  or  administrator  is  only  a  nom- 
inal party.  Drew  v.  McDaniel,  60  N.  H. 
482.  But  in  this  State  the  court  has  a 
discretion  to  allow  the  party  to  testify 
when  it  clearly  appears  that  injustice  may 


be  done  without  his  testimony  (Cochran 
V.  Langmaid,  60  N.  H.  571)  ;  but  when 
the  facts  to  be  tl^stilied  to  were  wholly 
within  the  knowledge  of  the  deceased  and 
tlie  offered  witness,  it  is  a  proper  exercise 
of  that  discretion  to  refuse  to  let  the  wit- 
ness testify,  as  that  would  give  him,  being 
a  l)arty,  an  unfair  advantage  (Page  v. 
Whidden,  59  N.  H.  511)  ;  and  this  dis. 
cretion  should  in  any  case  be  exercised 
with  caution.  Hoit  v.  Russell,  56  N.  H. 
563.  And  the  facts  showuig  that  injustice 
will  be  done  by  not  allowing  the  other 
party  to  testify,  must  appear  upon  the  evi- 
dence in  the  case,  and  cannot  be  proved 
by  affidavit  of  the  party  offering  hims(df 
as  a  witness.  Harvey  v.  Hilliard,  47  N. 
H.  553.  The  rule  does  not  prevent  the 
offering  of  books  of  account  with  the  par- 
ty's suppletory  oath,  as  was  allowed  at 
common  law  (Snell  v.  Parsons,  59  N.  H. 
521)  ;  nor  does  it  prevent  the  wife  of  the 
jiarty  from  testifying  as  to  such  matters  as 
she  may  be  otherwise  competent  to  testify 
to,  she  not  being  a  party  to  the  case. 
Clements  v.  Marston,  52  X.  H.  36.  The 
election  of  the  executor  or  administrator 
to  testify  himself,  allows  the  other  Jiarty 
to  testify  ;  but  when  the  executor  or  ad- 
ministrator is  summoned  by  the  other  side 
and  compelled  to  testify,  this  is  not  such 
an  election  as  allows  the  party  summoning 
him  to  testify.  Harvey  y.  Hilliard,  supra,. 
The  rule  applies  to  proceedings  in  the 
probate  court  as  well  as  to  suits  at  com- 
mon law.  Thus,  where  an  administration 
account  was  being  settled,  it  was  held  that 
an  heir  who  had  become  party  to  the 
record  was  incompetent  to  testify.  Per- 
kins V.  Perkins,  46  N.  H.  110. 

New  Jersey  (Revision,  p.  378,  sees.  2,  3, 
4,  and  9  ;  Sujip.  Rev.  p.  287,  sec.  1).  In 
this  State,  the  provision  on  the  subject  in 
question  is  that  no  party  ran  be  sivorn  if  the 
opposite  party  is  prohibited  by  a  legal  disa- 
bility from  testifying,  or  if  either  party  is 
party  in  a  representative  capacity,  so  far  as 
relates  to  any  transaction  with  or  statement 
bij  any  testator  or  intestate  represented  in  an 
action  ;  but  if  the  representative  is  taken  as  a 
witness  at  his  own  request,  the  other  party 
may  also  testify* 

The  testimony  excluded  by  these  sec- 
tions will  not  be  rendered  admissible  by 
the  subsequent  otier  and  admission  of  dis- 
qualified witnesses.  Yetman  v.  Dey,  33 
N.  J.  L.  32.  When  a  defendant  in  a  suit 
in  equity  dies,  and  his  executor  is  substi- 
tuted, the  complainant  cannot  be  a  witness 
in  his  own  behalf,  unless  the  sworn  an- 
swer of  the  defendant  has  already  been  filed, 


460 


LAW   OP   EVIDENCE. 


[part   III. 


interrogatories  upon  oath.     But  this  act  of  the  adversary  may  be 


in  which  case  he  is  admitted  by  statute  to 
disprove  the  parts  of  the  answer  responsive 
to  the  bill.  Sweet  v.  Parker,  22  N.  J.  Eq. 
455  ;  Laiining  v.  Lanning,  17  N.  J.  Eij. 
228.  If  the  answer,  though  sworn  to,  is 
not  evidence,  as  if  it  does  not  state  facts 
in  the  knowledge  of  the  defendant,  or  if  it 
is  not  swoin  to,  or  if  the  bill  asks  an  an- 
swer not  sworn  to,  then  the  complainant 
is  not  competent.  Sweet  v.  Parker,  supra. 
The  rule  applies  only  to  parties  who  are 
materially  interested  in  the  suit,  and  not 
to  one  who  is  wrongfully  made  a  party, 
having  no  interest  in  the  case.  Harrison 
V.  Johnson,  18  N.  J.  Eq.  420.  If  one 
party  dies  after  the  other  has  been  exam- 
ined, the  testimony  so  given  remains  com- 
petent because  competent  when  taken. 
Marlatt  v.  Warwick,  18  N.  J.  Ecj.  108. 
If  a  defendant  is  ordered  to  attend  court 
and  be  examined  concerning  an  account, 
and  the  complainant  dies  after  the  order 
passed  and  before  the  defendant  is  exam- 
ined, the  examination  is  not  competent, 
since  the  order  is  affected  by  the  incompe- 
tency of  the  witness  arising  after  it  was 
passed.  Halsted  v.  Tyng,  29  N.  J.  Eq. 
86.  The  rule  applies  to  proceedings  in 
the  orphan's  court  on  an  executor's  ac- 
count, when  the  executor  offers  to  testify 
to  transactions  with  the  testator  (Smith  v. 
Burnet,  34  N.  J.  Eq.  219  ;  EUicott  v. 
Chamberliu,  37  N.  J.  Eq.  473  ;  Cuming 
V.  Kobins,  39  N.  J.  Eq.  48)  ;  but  does  not 
apply  to  transactions  with  a  deceased  ex- 
ecutor in  regard  to  the  estate  he  repre- 
sented. Palmateer  v.  TiltoTi,  40  N.  J. 
Eq.  554.  If  there  are  more  than  two  per- 
sons on  one  side  of  a  case,  the  fact  that 
any  of  them  is  a  representative  of  a  deceased 
person  is  sufficient  to  exclude  the  testimony 
of  the  other  party.  Force  v.  Dutcher, 
18  N.  J.  Eq.  401  ;  "Sweet  v.  Parker,  22  N. 
J.  Eq.  453.  Testimony  of  the  surviving 
party  to  personal  statements  or  transactions 
with  the  deceased  is  not  testimony  of  such 
kind  that,  if  it  is  admitted  without  ob- 
jection by  the  party  entitled  to  object  to 
it,  the  court  will,  of  its  own  motion,  strike 
out  the  evidence  ;  there  is  a  necessity  for 
some  objection  by  the  party  entitled  to 
object.  Eowland  v.  Kowland,  40  N.  J. 
Eq.  281.  See,  contra,  Sherman  v.  Lanier, 
39  N.  J.  Eq.  253,  in  Probate  Proceedings. 
In  suits  where  the  administrator  is  in  fact 
sued,  or  sues,  in  his  own  title  and  not  on 
the  title  of  his  testator  or  intestate,  the  act 
in  question  does  not  apply,  and  the  other 
party  is  a  competent  witness  in  the  case. 
Hodge  V.  Corriell,  44  N.  J.  L.  456.  In 
cases  where   neither  party  in  the  action 


represents  a  deceased  party,  the  surviving 
party  is  competent  as  a  witness  as  to  wlwt 
was  said  and  done  by  the  deceased  party 
in  the  transaction  out  of  which  the  suit 
grows.  Lehigh  Coal  and  Navigation  Co. 
V.  Central  Railroad  Co.,  41  N..I.  Eq.  167  ; 
Palmateer  v.  Tilton,  supra.  The  su]iple- 
mentary  section,  above  quoted,  has  been 
construed  by  the  courts  in  McCartin  v. 
McCartin,  45  N.  J.  E  [.  265,  and  the  con- 
struction given  in  that  case  was  that  it 
rendered  either  party  competent  in  the 
case  except  as  to  tran.sactions  with  or 
statements  by  any  testator  or  intestate 
represented  in  the  action  ;  therefore,  the 
executor  may  testify  in  the  case  as  to  facts 
which  are  not  "  transactions  with  or  state- 
ments by "  the  deceased  party,  without 
rendering  the  surviving  party  competent 
to  testify  as  to  such  transactions  or  state- 
ments ;  and  similarly,  the  surviving  party 
is  competent  witness  to  testify  in  tlie 
case,  except  as  to  such  "  transactions  with 
or  statements  by"  the  deceased  party. 
McCartin  v.  McCartin,  svpra;  see  also 
McCartin  v.  Traphagen,  43  N.  J.  Eq.  327. 
Under  this  recent  statute  the  courts  have 
given  a  limited  construction  to  the  word 
"  representative,"  holding  that  it  is  only 
when  one  of  the  parties  to  the  record  ap- 
pears upon  the  record  to  be  a  party  in  a 
representative  capacity,  that  the  other 
party  is  excluded  from  testifying  as  to 
statements  by  or  transactions  with  the 
deceased  party.  It  is  not  enough  that  one 
of  the  parties  to  the  record  derives  his 
title  from,  and  in  that  way  represents,  the 
deceased  person.  Crimmins  v.  Crimmins, 
43  N.  J.  E(p  87;  Hodge  v.  Corriell,  supra; 
Palmateer  v.  Tilton,  supra. 

New  Mexico  (Compiled  Laws,  1884, 
sees.  2076,  2078,  and  2082).  These  sections 
provide  that  parties  and  persons  in  whose 
behalf  proceedings  are  carried  on,  are  com- 
petent as  well  as  their  husbands  and  wives  ; 
but  in  a  suit  to  which  an  heir  or  executor,  ad- 
ministrator or  assigns  of  a  deceased  person 
are  parties,  the  opposite  or  interested  party 
to  the  suit  cannot  testify  in  his  own  behalf  as 
to  any  matter  occurring  before  the  death  of 
the  deceased  person,  unless  his  evidence  >s 
corroborated  by  some  other  material  evidence. 
New  York  (Civ.  Code  Proc.  sees.  828, 
829).  In  this  State,  the  statutes  provide 
that  a  person  is  a  competent  witness  notwith- 
standing his  or  her  interest  in  the  event  of  an 
action,  either  as  a  party  or  husband  or  wife 
of  a  parti/  thereto,  or  person  in  whose  behalf 
the  proceeding  is  carried  on  ;  and  further, 
that  a  party  or  person  interested  in  the  event 
of  an  action,  or  any  person  from  whom  such 


CHAP. 


II.] 


COMPETENCY   OF   WITNESSES. 


461 


rco-arded  as  an  emphatic  admission,  that,  in  that  instance,  the 


par(>i  or  interested  person  derives  their  in- 
terest cannot  testify  in  his  own  behalf  or  in 
behalf  of  the  party  claiminif  under  him,  as 
against' tlie  executor,  administrator,  or  sur- 
vivor, or  a  committee  of  the  lunatic  or  any 
person  claiming  under  the  deceased  or  lunatic 
by  assignment  or  otherwise,  as  to  any  persomd 
transaction  or  communication  between  the  de- 
ceased person  or  lunatic,  unless  the  executor, 
administrator,  survivor,  committee,  or  person 
so  deriving  title  or  interest,  testifies  as  to  the 
same  transaction  or  communication. 

Under  this  statute  the  interest  which 
will  disqualify  a  person  not  a  party,  must 
be  an  interest  in  the  event  of  the  particular 
action  pending,  and  such  that  the  witness 
will  either  gain  or  lose  by  it,  or  the  judg- 
ment will  be  legal  evidence  for  or  against 
hira  in  some  other  action  ;  for  example, 
a  surety  on  a  probate  bond,  who  is  bound 
by  the  surrogate's  decree  upon  the  ac- 
counting. Nearjiass  v.  Oilman,  10-t  N.Y. 
510 ;  Miller  v.  Montgomery,  78  N.  Y. 
282  ;  Church  v.  HowCard,  79  N.  Y.  420. 
If  the  testimony  of  the  deceased  is  put  in 
evidence  as  to  any  transactions,  the  testi- 
mony of  the  party  surviving  may  be  given 
to  contradict  it.  Thus,  wiien  one  of  two 
defendants  in  an  action  on  a  promissory 
note,  testified  as  to  its  consideration,  and 
died  before  a  second  trial,  in  which  trial 
the  plaintiff  put  in  evidence  the  testimony 
of  the  deceased  defendant,  both  direct  and 
cross,  it  was  held  competent  for  the  sur- 
viving defendant  to  contradict  the  testi- 
mony, so  put  in,  by  his  own  testimony,  as 
to  the  transactions  refeired  to.  Potts  v. 
Mayer,  86  N.  Y.  302.  A  surviving  party 
may  testify  as  to  the  fact  that  he  had  a 
conversation  with  the  deceased,  if  that 
fact  is  immaterial  and  has  no  effect  (Hier 
V.  Grant,  47  N.  Y.  278)  ;  but  he  cannot 
testify  what  the  conversation  was,  nor  can 
he  testify  as  to  the  fact  of  there  having 
been  a  conversation,  if  that  is  a  material 
fact  in  the  case.  Maverick  v.  Marvel,  90 
N.  Y.  656.  If  he  was  only  a  listener  at  a 
conversation  between  the  deceased  and 
some  other  person,  he  may  testify  as  to 
that  conversation.  Badger  v.  Badger,  88 
N.  Y.  559;  Gary  v.  White,  59  N.  Y.  336  ; 
Hildebrant  v.  Crawford,  65  N.  Y.  107. 
In  this  State,  also,  it  is  held  that  the  rule 
does  not  extend  to  transactions  with 
clerks  or  agents  of  the  deceased,  and  that 
evidence  as  to  such  transactions  is  admis- 
sible. Pratt  V.  Elkins,  80  N.  Y.  198. 
The  rule  does  not  extend  so  far  as  to  pre- 
vent the  surviving  party  from  testifying 
to  facts  which  inferentially  show  that  such 
transaction   did   or  did    not   take   jilace. 


Thus,  where  a  witness  for  one  party  testi- 
heil  that  such  conversation  did  take  place 
between  the  deceased  and  the  other  party, 
at  which  he  was  present,  and  what  the 
conversation    was,   it  was  held  that   facts 
inferentially  showing  that  the  witness  tes- 
tified falsely  might  be  testified  to  by  the 
surviving  party,   although  they  tended  to 
prove  that  the  conversation  did  not  take 
place.     Such,  for  instance,  would  be  the 
testimony  that  the  parties  to  the  alleged 
conversation  were  at  the  time  in  different 
places.     Pinney  v.   Orth,   88   N.  Y.  447. 
In  a  case  where  the  action  was  on  a  loan, 
which  was  alleged  to  have  been  made  by 
check  given  by  plaintiff  to  defendant's  in- 
testate, the  defence  being  that  the  check 
concerned  the  affairs  of  a  corporation  of 
which  the  plaintiff  was  treasurer  and  the 
defendant's  intestate  president,  it  was  held 
that  it  was  incompetent  for  the  plaintiff  to 
testify  whether  the  check  had  any  refer- 
ence to  the  affiiirs  of  the  company,  since 
the  answer  to  such  (juestion  involved  the 
nature   of  the  transaction    with   the    de- 
ceased when  the  check  was  given.    Koehler 
V.  Adler,  91  N.  Y.  657.     The  language  of 
the  rule,  as  stated  in  the  existing  code, 
covers  all  grantors  in  the  title,  and  not 
only  the  immediate  grantor  of  the  paitv. 
Pope  v.  Allen,  90  N.  Y.  298.    As  was  said 
above,  an  interest  in  a  suit  which  will  ren- 
der a  person  incompetent  to  testify  therein 
must  be  not  merely  interest  in  the  ques- 
tion involved,    but  in   the  particular   ac- 
tion, so  that  the  witness  will  either  gain 
or  lose  by  the  direct  legal  effect  of  the 
judgment,  or  that  the  record  will  be  legal 
evidence  for  or  against  him  in  some  other 
action.    Thus,  where  an  action  was  brought 
on  a  check  and  notes  claimed  to  have  l»een 
executed   by  the   defendant   through   his 
agent,  and  objection  was  made  to  the  tes- 
timony of  the  agent  because,  if  the  notes 
were  sustained,  the  agent  might  be  liable 
to  the  principal   for  misappropriation    of 
funds  or  negligence  in  the  payee  of  the 
notes  to  pay  them,  it  was  held  that  this 
was   sufficient   interest   to   disqualify  the 
agent.     Nearpass  v.   Oilman,   104  N.   Y. 
509.     This  section   was  under  discussion 
in   the   case  of  Witthaus  v.  Schack,  105 
N.  Y.  335,  and  the  nature  of  the  interest 
of  a  wife  in  her  husband's  real  estate  as 
affecting  this  rule  was  discussed.     In  the 
case  of  Redfield  v.   Redfield,    110  N.  Y. 
674,  the  witness  offered  was  the  husband 
of  the  plaintiff.     The  defendant  held  stock 
which  she  claimed  was  hers,  also  claiming 
that  he  held  it  as  trustee  for  her,  and  had 
wrongfully  transferred  it  to  his  father  who 


462 


LAW   OP   EVIDENCE. 


[part    III. 


party  is  worthy  of  credit,  and  that  his  known  integrity  is  a  suffi- 


knew  of  the  existence  of  the  trust.     The 
husband  was  otien-d  by  tlie  defciuhiut  as  a 
witness,  and  the  plaiutitf  olijccted  to  his 
testimony   as   being   interested   in   tlie  re- 
sult of  the   action.     Tlie  court  lield  that 
tins   liability   to    his   wife   for   the   stock 
which  he  liad  thus  disjiosed  of  depended 
upon  the  prosecution  of  the  pending  suit, 
because   if  that    was   sustained   and    the 
value  of  the  stock  and  dividends  recovered 
from    the    fathei''s    estate,    tlie    husband 
would  be  relieved  to  that  extent  from  re- 
sponsibility ;  and  his  testimony  for   that 
reason  was  excluded.     In  the  case  of  Nay 
V.  Curley,   113   N.  Y.   578,  the  court  af- 
firms an  imi)ortant  limitation  to  the  effect 
of  this  section  (829)   by  holding  that  this 
section    does    not    abrogate    the    ordinary 
principle  of  evidence,  that  where  a  party 
calls  a  witness  and  examines  him  as  to  a 
particular   part   of    communications    and 
transactions,  the  other  party  may  call  out 
the  whole  of  the  communication  or  trans- 
action bearing  upon  or  temling  to  explain 
or    qualify   the  particular  part  to  which 
the  examination  of  the  other  party  was 
directed.     So,  that  if  one  party  to  a  suit 
who  has  a  right  to  object  to  the  testimony 
of  the   otheV  party  examines  him   as  to 
transactions  or  communications  with  the 
deceased   person,    he    thereby    renders    it 
competent  for  the  party  so  examined  to 
offer  himself  as  witness  in  his  own  behalf 
to  prove  the  whole  of  the  communication 
or  transaction  as  to  which  he  had  been 
examined  Iiy  the  other  party.     This  rule 
is  further  limited  in  the  case  of  Lewis  v. 
Merritt,  113  M.  Y.  388;  where  it  was  held 
that  not  only  does  the  examination  of  an 
executor,   or  other    representative   party, 
directly  as  to  the  communication  or  trans- 
action in  question  let  in  evidence  of  the 
surviving  party  as   to   such   transaction, 
but  that  if  the  executor,  or  other  rejire- 
sentative,  is  examined  as  to    facts  which 
inferentially  affirm  or  negative  the  exist- 
ence of  any  such  transaction  or  commnni- 
cation,   or  any  part   or  incident  thereof, 
this  allows  the  surviving  party  not  only 
to  testify  to  facts  which  inferentially  con- 
tradict the  testimony  of  the  executor  or 
representative   person,  but   to   testify  di- 
rectly in  affirmance  or  denial  of  the  per- 
sonal     transaction      or      communication 
affirmed  or  denied,  as  the  case  may  be, 
inferentially  by  the  testimony  of  the  ex- 
ecutor   or    other    representative     ])erson. 
For   instance,  in  that  case   the   tpiestion 
was  whether  the  surviving  party  became 
legally  in  possession  of  certain  promissory 
notes  which  had  been  stored  in  the  trunk 


of  a  deceased  yierson.  Tlie  action  was 
brought  and  defended  upon  the  conceded 
facts  that  the  notes  were  in  the  possession 
of  the  defendant  at  the  time  the  action 
was  brought,  and  that  they  belonged  to 
the  deceased  before  her  death.  The  ques- 
tion was  wdiether  the  defendant  had  right- 
fully or  wrongfully  obtained  jiossession  of 
the  notes.  The  executor  testified  that  a 
few  hours  before  the  death  of  the  deceased, 
and  when  she  was  in  an  unconscious  state 
(and  she  never  improved),  he  saw  these 
notes  in  her  tin  trunk,  and  just  after  her 
death  he  looked  again  and  they  were  gone, 
and  the  defendant  was  in  the  house  that 
night  and  had  an  opportunity  to  take 
them.  The  direct  inference  from  this 
proof  was  that  the  defendant  had  wrong- 
fully taken  the  notes  without  the  knowl- 
edge and  consent  of  the  owner  ;  the  court 
held  that  it  was  competent  for  the  defen- 
dant to  take  the  stand  and  testify  and  be 
asked  the  question,  whether  he  took  the 
notes  from  any  person  without  their  con- 
sent, and  to  reply  thereto.  In  the  case  of 
Corning  v.  Walker,  100  N.  Y.  550,  the 
court  affirms  the  principle  that  the  testi- 
mony of  the  executor  or  representative 
party,  in  order  to  justify  opposing  testi- 
mony from  the  surviving  party,  must  have 
been  voluntarily  ottered  by  the  executor, 
and  not  drawn  from  him  by  cross-examina- 
tion of  the  surviving  party,  who  then  pro- 
ceeds to  offer  evidence  on  his  own  behalf 
rebutting  it. 

North  CaroUmi  (Code,  1883,  sees.  589, 
590,  1351).  The  lairs  in  this  State  are  the 
same  as  in  New  York.     g.  v. 

Ohio  (Rev.  Stat.  1886,  sees.  5240, 
5241,  and  5242).  ]n  this  State,  the  fol hiv- 
ing persons  are  incomjietent  in  certain  re- 
spects: (1)  A  person  icho  assifpis  his  claim 
or  interest  is  incompetent  concerning  any 
matter  in  respect  to  which  he  would  not,  if  a 
parti/,  be  permitted  to  testify  ;  (2)  a  person 
who,  if  a  parti),  irould  be  restricted  in  his 
evidence  under  sections  as  to  testifijing  when 
an  opposite  party  is  a  fiduciary,  shall,  where 
the  properti/  or  thing  is  sold  or  transferred 
by  such  fiduciary  or  rejiresentative  party,  be 
restricted  in  the  same  manner  in  any  action 
or  proceeding  concerning  such  property  or 
thing;  (3)  a  party  cannot  testify  when  the 
adverse  party  is  guardian  of  a  deaf  and 
dumb,  or  insane  person,  or  of  a  child  oj  a 
deceased  person,  or  his  executor  or  adminis- 
trator, or  claims  or  defends  as  heir,  grantee, 
assignee,  legatee  of  the  deceased  person,  ex- 
cept (a)  as  to  facts  occurring  subsequent  to  the 
appointment  of  the  guardian  or  trustee,  or  sub- 
sequent to  the  death  of  the  decedent,  grantor, 


CHAP.    II.] 


COMPETENCY   OF   WITNESSES. 


463 


cient  guaranty  against  the  danger  of  falsehood.-^     But  where  the 

8  In  several  of  the  United  States,  any  party,  in  a  suit  at  law,  may  compel  the  a<l. 
verse  party  to  appear  and  testify  as  a  witness.  In  Connecticut,  this  may  be  done  in 
all  cases.  Kcv.  Stat.  1849,  tit.  1,  §  142.  So  in,  Ohio.  Stat.  March  23,  1850,  §i5  1,  2. 
In  Michigan,  the  applicant  must  first  make  affidavit  that  material  facts  in  his  case  aie 
known  to  the  adverse  party,  and  that  he  has  no  other  proof  of  tiiein,  in  which  case  he 
may  be  examined  as  to  those  facts.  Rev.  Stat.  1846,  c.  102,  §  100.  In  New  York, 
the  adverse  party  may  be  called  as  a  witness  ;  and,  if  so,  he  may  testify  in  his  own 
behalf,  to  the  same  matters  to  which  he  is  examined  in  chief;  and  if  he  testifies  to  new 
matter,  the  paity  calling  him  may  also  testify  to  such  new  matt(;rs.  Rev.  Stat.  vol.  iii, 
p.  769  (3d  ed.).  The  law  is  the  same  in  Wisconsin.  Rev.  Stat.  1849,  c.  98,  §J  57,  60, 
and  in  New  Jersey,  Nixon's  Digest  (1855),  p.  187.  In  Missouri,  parties  may  Summon 
each  other  as  witnesses,  in  justice's  court ;  and,  if  the  party  so  summoned  refusi-s  to 
attend  or  testify,  the  other  party  may  give  his  own  oath  in  litem.  Rev.  Stat.  1845, 
c.  93,  §§  24,  25. 


assignor  or  testator ;  (b)  when  the  action 
relates  to  a  contract  made  throitqh  an  ar/ent 
by  a  person  since  deceased,  and  the  agent  is 
alive  and  testifies,  the  other  parti/  may  testify 
on  the  same  subject ;  (c)  if  a  party  or  person 
directly  interested  testifies  to  transactions  or 
conversations  with  another  party,  the  latter 
may  testify  to  the  same  points  ;  (d)  if  a  party 
offers  evidence  of  conversations  or  admissions 
of  the  opposite  party,  the  latter  may  testify  to 
the  same  points  ;  (e)  the  usual  rule  obtains  in 
this  State  as  to  testimony  in  regard  to  trans- 
actions with  or  admissions  by  deceased  part- 
ners or  joint  contractors;  (f)  hook-accounts 
are  also  admissible  in  this  State  ;  (g)  the  in- 
troduction of  parties'  oral  testimony,  taken  in 
a  preceding  trial  of  the  case,  allows  the  oppo- 
site party  to  testify  to  the  same  matters  ;  (h) 
the  deposition  of  a /larty,  since  deceased, al- 
lows the  opposite  party  the  same  privilege. 

The  person  who  is  incompetent  under 
this  statute  may  nevertheless  be  called  by 
the  executor  or  administrator,  and  com- 
pelled to  testify  as  to  facts  which  he  would 
be  incompetent  to  testify  to  on  his  own 
motion.  Roberts  v.  Briscoe,  44  Oh.  St. 
600.  In  actions  in  which  a  surviving  part- 
ner is  a  party,  admissions  by  or  transac- 
tions with  the  deceased  are  competent  if 
made  in  the  presence  of  the  surviving 
partner.  Harrison  v.  Neely,  41  Oh.  St. 
334.  The  death  of  an  agent  has  no  effect 
upon  the  competency  of  yiarties  or  testi- 
mony in  a  case  in  which  he  is  not  a  partv. 
First  Nat.  Bank  v.  Cornell,  41  Oh.  St. 
401  ;  Cochran  v.  Alraack,  39  Oh.  St.  314. 
The  administrator  or  executor  is  competent 
to  testify  in  his  own  behalf  as  to  facts  oc- 
curring before  the  death  of  his  intestate 
or  testator.  And  if  he  testifies  as  to  trans- 
actions and  conversations  between  the  <le- 
ceased  and  the  adverse  party,  the  adverse 
party  thereby  gains  the  right  to  testify  to 
the  same  transactions  or  conversations. 
Rankin  v.  Hannan,  38  Oh.  St.  438.  As 
stated  above,  it  is  held  that  the  omission 
of  agents  as  a  class  of  persons  \vliose  death 


affects  the  competency  of  others  as  wit- 
nesses is  intentional  and,  consequently, 
agents  are  excluded  from  the  statute. 
First  Nat.  Bank  v.  Cornell,  41  Oh.  St. 
402  ;  Cochran  v.  Almack,  39  Oli.  St.  114. 

Oregon  (Hill's  An  not.  Law,  1887,  ch.  8, 
tit.  III.  sec.  710).  Neither  parties  nor 
other  persons  who  have  an  interest  in  the  event 
of  an  action,  suit,  or  proceeding  are  excluded, 
although  in  every  case  the  credibility  of  the 
witness  may  be  drawn  in  question. 

In  this  State,  parties  and  interested  per- 
sons are  competent  ivitnesses  in  every  event, 
though  their  credibility  may  be  impeached  by 
proving  their  interest. 

Pennsylvania  {Laws,  1887,  ch.  89,  sec.  4, 
as  amended  by  Laws,  1891,  No.  218,  sec.  1). 
By  these  statutes,  in  any  civil  proceeding  al- 
though a  party  to  the  thing  or  contract  in  ac- 
tion is  dead  or  insane,  and  his  right  therein 
is  passed  to  a  party  on  record  who  represents 
his  interest  in  the  subject  in  controversy,  never- 
theless, any  surviving  or  remaining  party  to 
such  thing  or  contract,  or  any  other  person 
whose  interest  is  adverse  to  the  right  of  the 
deceased  or  insane  person,  can  testify  to  any 
relevant  matter,  althouqh  it  may  hai-e occurred 
before  the  death  of  said  party,  or  his  adjudi- 
cation, or  insanity,  if,  and  only  if  such  re- 
levant matter  occurred  betiveen  himself  [the 
offered  witness)  and  another  person  who  is 
living  at  the  time  of  the  trial  and  competent 
to  testify,  and  who  does  testify  against  the 
surviving  or  remaining  party,  or  against  the 
person  whose  interest  is  thus  adverse;  or  if 
such  relevant  matter  occurred  m  the  presence 
or  hearing  of  such  other  living  or  competent 
person.  In  other  respects  interest  in  the  ac- 
tion on  trial  or  any  other  interest  or  policy  of 
laio  does  not  exclude  a  person  as  a  witness. 

Sec.  6.  If  a  person,  incompetent  by  rea- 
son of  interest,  is  called  by  the  other  party  to 
testify  aqainst  his  own  interest,  he  thereby  be- 
comes fully  competent  for  either  party,  and  a 
release  or  extinguishment  of  the  interest  also 
makes  him  a  competent  tcitness. 

The  fact  that  the  testimony  as  to  facts 


464  LAW   OF   EVIDENCE.  [PART    III. 

party  would  volunteer  his  own  oath,  or  a  co-suitor,  identified  in 


occurring  after  the  decease  of  the  testator 
or  intestate  tends  to  prove  inferentially 
facts  existing  or  occurring  before  such  de- 
cease is  no  objection  to  such  testimony. 
Porter  v.  Nelson,  121  Pa.  St.  640  ;  Koth- 
rock  V.  Gallaher,  91  Pa.  St.  108  ;  Stephens 
V.  Cotterell,  99  Pa.  St.  188.  Thus,  it  was 
lield  tliat  a  witness  might  be  asked  whether 
a  ])ackage  when  opened  was  in  tlie  .same 
conditioti  that  it  had  been  from  and  im- 
mediately after  her  husband's  death,  as 
this  testimony  only  referred  by  imj)lica- 
tion  to  the  state  of  the  ]iackage  before 
such  death.  Rothrock  v.  Gallaher,  supra. 
So,  a  witness  was  allowed  to  testify  that 
on  searching  among  the  deceased's  papers 
about  thirty  days  after  his  death,  a  certtrin 
bond  was  found  among  them,  although 
this  evidence  tended  inferentially  to  prove 
that  the  bond  was  among  his  papers  be- 
fore his  death.  Porter  v.  Nelson,  supra. 
So,  it  has  been  held  competent  to  prove 
in  whose  possession  and  where,  the  ad- 
ministrators found  the  property  of  the 
deceased  when  they  took  possession  of  it, 
although  the  tendency  of  such  testimony 
may  be  to  negative  the  contention  that 
some  one  else  had  taken  possession  of 
the  property  before  the  death  of  the  de- 
ceased (Stephens  v.  Cotterell,  sujwa)  ;  but 
it  has  been  held  that  it  was  not  coni]ietent 
for  a  witness  in  a  case  covered  by  the  stat- 
ute, to  testify  that  a  .signature  of  indorse- 
ment on  a  note  in  a  suit  was  in  pencil, 
because  that  testimony  necessarily  related 
to  a  fact  occurring  or  existing  in  the  life- 
time of  the  owner  (Foster  v.  CoUner,  107 
Pa.  St.  310)  ;  and  so,  it  is  not  competent 
to  prove  a  relationship  existing  at  the  time 
of  trial,  but  founded  on  a  marriage,  birth, 
or  death,  or  other  acts  establishing  the  re- 
lation before  the  death  of  the  deceased. 
Adams  v.  Edwards,  115  Pa.  St.  211. 

Pxhode  Island  (Pub.  Stat.  ch.  214,  sec. 
33).  No  person  is  disquaUJied  by  reason  of 
being  interested  in  the  suit,  or  party  thereto, 
in  this  State,  except  that  when  an  original 
party  to  a  contract  or  cause  of  action  is  dead 
or  insane,  or  when  an  executor  or  admimstra- 
tor  is  a  party  to  the  suit,  the  other  party  can- 
not testify  on  his  own  behalf  and  offer,  or  upon 
the  call  of  his  co-plaintiff  or  co-defendant,  ex- 
cept as  allowed  by  law,  unless  he  is  a  nominal 
parly  merely,  or  unless  the  contract  or  thing 
in  issue  was  originally  made  with  a  person  liv- 
ing and  competent  to  testify  ;  but  this  exclu- 
sion does  not  apply  to  ads  and  contracts  done 
since  the  decease  of  the  decedent. 

The  statute  in  this  State  has  been  the 
subject  of  discussion  in  only  a  few  cases. 
In  one  it  was  decided,  that  this  statute  did 


not  apply  to  proceedings  upon  the  probate 
of  a  will  either  original  or  appellate,  for 
the  executor  is  not  executor  until  the  final 
affirmance  of  his  appointment.  The  court 
also  say  that  the  statute  is  intended  to 
apply  only  when  the  executor  is  a  party  as 
executor  representing  the  estate.  Hamil- 
ton V.  Hamilton,  10  R.  1.  540.  It  has 
also  been  held  that  the  statute  covers 
transactions  occurring  between  the  execu- 
tor or  administrator  before  his  appoint- 
ment and  the  other  party  to  the  suit,  al- 
though such  transactions  occurred  after 
the  death  of  the  testator  or  intestate. 
Brown  v.  Lewis,  9  R.  I.  498.  In  Hop- 
kins V.  Manchester,  16  R.  I.  664,  the  fe- 
male defendant  offered  herself  as  a  witness 
to  testify  to  declarations  made  by  the  tes- 
tator in  regard  to  the  note.  The  testimony 
was  objected  to  and  ruled  out,  the  defen- 
dants excepting  to  the  ruling.  The  de- 
fendants contended  that  the  testimony 
should  have  been  admitted  because  the 
action  was  for  a  conversion  committed, 
not  in  the  lifetime  of  the  testator,  but 
after  his  decease.  The  I'uling  was,  how- 
ever, sustained,  the  court  holding  that  the 
statute  enabling  parties  to  testify  on  their 
own  offer  does  not  extend  to  cases  where 
an  executor  or  administrator  is  on  one 
side  and  the  party  offering  to  testify  is  on 
the  other,  except  where  the  cause  of  ac- 
tion is  a  contract  originally  made  with  a 
person  still  living  and  competent  to  tes- 
tify, or  where  the  testimon)'  offered  relates 
to  matters  occurring  after  the  death  of  the 
testator  or  intestate. 

South  Carolina  (Code  Civ.  Proc.  sees. 
399,  400).  In  this  State,  no  person  is  ex- 
eluded  by  reason  of  interest  in  the  event  of 
the  action,  and  a  party  can  testify  in  his  own 
behalf,  except  that  no  jiarty  or  person  inter- 
ested, or  person  who  has  previously  had  an 
interest  which  is  not  vested  in  a  parly  to  the 
action,  nor  any  assignor  of  anything  in  con- 
troversy in  action,  can  be  examined  as  to  any 
transaction  or  communication  betioeen  him 
and  a  person  at  the  time  of  such  examination 
deceased  or  insane,  as  against  a  person  party 
to  the  action  as  executor,  administrator,  heir- 
at-law,  next  of  kin,  assignee,  legatee,  devisee 
or  survivor  of  the  deceased  person  or  as  com- 
mittee of  the  insane  person,  if  the  examina- 
tion or  judgment  in  the  proceeding  can  affect 
the  witness's  interest  or  the  interest  previously 
owned  or  represented  by  him.  If  the  execu- 
tor, administrator,  heir-at-law,  next  of  kin, 
assignee,  leqatee,  devisee,  or  survivor,  above 
named,  is  examined  on  his  oivn  behalf,  or  the 
testimony  of  the  deceased  or  insane  peison  is 
put  into  the  case  in  behalf  of  the  executor,  ad- 


CHAP.    II.] 


COMPETENCY   OF   WITNESSES. 


465 


interest  with  him,  would  offer  it,  this  reason  for  the  admission 


viinistrator,  heir-at-law,  next  of  kin,  assiijnee, 
Let)atee,  devisee,  survivor,  or  committee,  then 
all  other  persons  are  thereby  so  far  rendered 
competent  witnesses. 

Tennessee  (Code,  1884,  sees.  4.560,  4563, 
4564,  and  4565).  /«  civil  actions,  parties 
and  persons  interested  are  competent  wit- 
nesses, but  no  party  can  testify  as  to  any 
transaction  or  conversation  with  or  statement 
by  any  opposite  party  in  interest,  if  such  op- 
posite party  is  incompetent  or  dis<puilijied  by 
insanity,  unless  called  by  the  opposite  party, 
and  then  only  in  the  discretion  of  the  court  ; 
and  further,  in  actions  to  which  executors,  ad- 
ministrators, or  guardians  are  parties,  and  in 
ivliich  the  judgment  may  affect  them,  neither 
parli/  can  testify  as  to  any  transaction  with  or 
statement  by  the  testator,  intestate,  or  ward  un- 
less called  by  the  opposite  party. 

Texas  (Kev.  Stat.  art.  2246,  2248). 
These  statutes  allow  parties  and  persons  in- 
terested in  the  suit  to  testify,  except  that  in 
actions  to  which  executors,  administrators,  or 
guardians  are  parties,  and  in  which  the  judg- 
ment may  aff'cct  the.m,  neither  party  can  tes- 
tify aijainst  the  other  as  to  any  transaction 
with  or  statement  by  a  testator,  intestate,  or 
ward,  unless  called  by  the  opposite  party  ; 
and  this  exclusion  extends  to  all  actions  by  or 
against  heirs  or  legal  representatives  of  the 
decedent  arising  out  of  any  transaction  with 
such  decedent. 

Utah  (Compiled  Laws,  1888,  vol.  2, 
tit.  10,  ch.  2,  sees.  3876,  3877).  Parties 
and  interested  persons  are  competent  though 
their  credibility  may  be  questioned,  the  jury 
being  exclusive  judges  thereof.  And  further, 
parties  or  assignoi-s  of  parties,  or  persons  in 
whose  behalf  the  action  is  prosecuted,  against 
the  executor  or  administrator,  upon  a  claim 
err  demand  against  the  estate  of  the  deceased 
person,  are  incompetent  to  testify  as  to  any 
matter  of  fad  occurring  before  the  death  of 
the  deceased  person  and  equally  within  the 
knowledge  of  both  witness  and  the  deceased 
person. 

Vermont  (Re".  Law,  1880,  sera.  1001, 
1002,  1003).  Parties  and  interested  per- 
sons are  competent  in  this  State,  their  credi- 
bility beinq  aff^ected  by  the  interest ;  but  if 
one  of  the  original  parties  to  the  contract  or 
cause,  of  action  is  dead  or  insane,  the  other 
party  cannot  testify  in  his  own  favor,  except 
to  meet  or  explain  the  testimony  of  living  loit- 
nesses  produced  against  him  as  to  facts  tak- 
ing place  after  the  death  or  insanity  of  the 
other  parly,  or  when  the  testimoni/  of  the  de- 
ceased or  insane  person  has  been  put  in  evi- 
dence against  him  ;  and  further,  in  cases 
where  an  executor  or  administrator  is  a  party, 
the  other  party  cannot  testify  in  his  own  favor, 
unless  the   contract  in  issue  was  originally 

VOL.   I.  —  30 


7nade  with  a  person  alive  and  competent,  ex- 
cept as  to  acts  since  the  probate  of  the  will 
or  the  appointment  of  the  administrator,  or 
to  meet  testimony  of  living  witnesses  as  to 
facts  after  the   death  of  the  other  jiarty. 

The  iuteutiou  of  the  statute  is  to  ])re- 
serve  ecuiality  between  the  parties,  and  it 
is  hekl  that  the  words,  "contract  in  issue  " 
mean  the  same  as  contract  in  dispute,  or 
in  (juestion,  and  relate  to  the  substantial 
issues  made  by  the  evidence  as  well  as  to 
tlie  formal  issues  made  by  the  pleadings 
(Barnes  v.  Dow,  59  Vt.  545  ;  Richardson 
V.  Wright,  58  Vt.  370  ;  Willey  v.  Hunter, 
57  Vt.  489);  and  that  the  term  "  the  other 
party,"  means  the  other  party  to  the  con- 
tract in  issue,  and  not  the  other  party  to 
the  record.  Barnes  v.  Dow,  59  Vt.  545, 
546.  The  rule  does  not  prohibit  the  wife 
of  a  deceased  person  from  testifying  as  to 
facts  whicii  she  is  otherwise  competent  to 
testify  to,  the  contract  in  issue  not  being 
between  herself  and  her  husband.  Stowe 
V.  Bishop,  58  Vt.  500.  Nor  does  it  api)ly 
to  agents  by  whom  the  contract  was  made. 
Kittell  V.  Railroad  Co..  56  Vt.  106  ;  Lytle 
V.  Bond,  40  Vt.  618  ;  Poi[uet  v.  North 
Hero,  44  Vt.  91  ;  Hollister  v.  Young,  42 
Vt.  403  ;  Pember  v.  Congdon,  55  Vt.  59. 
In  that  State,  if  a  party  to  the  case  testi- 
fies and  dies,  it  is  by  statute  provided  that 
if  his  testimony  is  produced  in  another 
trial  by  stenography  or  in  typewriting,  the 
other  party  may  testify  in  opposition  to  it; 
but  it  is  held  that  this  statutory  provision 
does  not  extend  to  cases  where  the  testi- 
mony is  produced  by  witnesses  from  recol- 
lection only,  and  that  in  such  case  the 
other  party  cannot  testify  in  opposition  to 
the  testimony  so  produced.  Blair  v.  Ells- 
worth, 55  Vt.  417.  The  statute  does  not 
exclude  persons  interested  in  the  suit,  un- 
less they  are  parties  to  the  cause  of  ac- 
tion in  issue  and  on  trial.  Lytle  v.  Bond, 
40  Vt.  618.  Nor  does  it  exclude  the  otFer 
of  account-books  with  the  suppletory  oath 
of  the  party  producing  them.  Thrall  v. 
Seward,  37  Vt.  573  ;  Johnson  v.  Dexter, 
37  Vt.  641  ;  Hunter  v.  Kittredge,  41  Vt. 
359  ;  Woodbury  v.  Woodbury,  48  Vt.  94. 

The  expression,  "contract  or  cause  of 
action  in  issue  or  on  trial,"  excludes  all 
contracts  or  issues  which  are  collateral  to 
the  contract  or  cause  of  action  being  en- 
forced. If  the  parties  to  the  main  contract 
are  alive,  they  may  both  testify  as  to  it. 
Cole  V.  Shurtleff,  41  Vt.  311;  Morse  v.  Low, 
44  Vt.  561.  If  the  administrator  puts  in 
evidence  a  memorandum  in  writing  of  the 
deceased,  the  other  party  is  held  not  to  be 
competent  to  testify  to  explain  the  writing 


466 


LAW    OF    EVIDENCE. 


[part    III. 


of  the  evidence  totally  fails;*  "and  it  is  not  to  be  presumed  that 

*  "For  where  a  man,  who  is  interested  in  the  matter  in  question,  would  also  prove 
it,  it  rather  is  a  ground  for  distrust,  tlian  any  just  cause  of  belief;  for  men  are  gen- 
erally so  short-sighted,  as  to  look  to  tlieir  own  private  lienetit,  which  is  near  them, 
rather  than  to  the  good  of  the  world,  'which  though  on  the  sum  of  things  really  best 
for  the  individual,'  is  more  remote  ;  therefore  from  the  nature  of  human  passions  and 
actions  there  is  more  reason  to  distrust  such  a  biassed  testimony  than  to  believe  it. 
It  is  also  easy  for  jiersous,  who  are  prejudiced  and  prepossessed,  to  put  false  and  unequal 
glosses  upon  what  they  give  in  evidence  ;  and  therefore  the  law  removes  them  from 
testimony,  to  prevent  their  sliding  into  perjury  ;  and  it  can  be  no  injury  to  truth  to 
remove  those  Irom  tlie  jury,  whose  testimony  may  hurt  themselves,  and  can  never  in- 
duce any  rational  belief."     1  Gilb.  Evid.  by  Lofit,  p.  223. 


or  to  state  what  was  said  or  done  on  the 
occasion  of  giving  it.  Woodbury  v.  Wood- 
bury, 48  Vt.  94.  The  surviving  party 
cannot  make  himself  competent  as  a  wit- 
ness by  putting  in  evidence  of  the  de- 
ceased in  another  ease,  upon  the  cause  of 
action  on  trial.  Walker  v.  Taylor,  43  Vt. 
612.  The  statute  in  this  State  continues 
the  disability  as  to  all  acts  down  to  the 
appointment  of  the  administrator,  or  the 
jirobate  of  the  will.  Ford  v.  Cheney,  40 
Vt.  153;  Roberts  v.  Lund,  45  Vt.  82. 
The  rule  does  not  extend  to  contracts  or 
causes  of  actions  having  three  or  more  par- 
ties ;  for  if  the  action  is  agaijist  one  of  two 
surviving  parties  to  the  contract,  the  other 
party  is  competent  to  testify,  even  as  to 
transactions  between  him  and  the  deceased 
jiarty  alone.  Eead  i-.  Sturtevant,  40  Vt. 
521  ;  Dawson  v.  Wait,  41  Vt.  626. 

Sec.  1004.  In  this  State,  iclien  account- 
books  are  put  in,  the  parti/  livimj  may  testify 
in  ivhose  handwriting  the  charges  are  and 
when  made,  but  no  further  except  to  meet  tes- 
timony oflivinr]  witnesses  as  to  facts  occur- 
ring after  the  death  of  the  other  party.  Jew- 
ett  V.  Winship,  42  Vt.  204  ;  Hunter  v. 
Kittredge,  41    Vt.  359. 

Virginia  (Code,  1887,  sees.  3345,  3340, 
3347,  3348,  3349).  Parties  and  persons 
interested  are  competent,  but  if  one  party  to 
the  contract  or  transaction  in  issue  is  disfptal- 
ified  by  death,  insanity,  infincy,  or  other 
legal  cause,  the  other  party  cannot  testify  for 
himself  or  any  other  person  whose  interest  is 
adverse  to  the  disqualified  party,  unless 
called  bif  the  hitter,  or  unless  some  person  de- 
riving an  interest  in  or  under  the  contract  or 
transaction  testfies  thereto,  or  unless  the  con- 
tract or  transaction  teas  made  with  an  agent 
now  alive  and  competent.  The  usual  excep- 
tion to  joint  contractors  and  partners  exists 
in  this  State,  and  it  is  also  provided  that  if 
the  contract  w  transaction  icas  made  with  an 
agent  of  one  oj  the  parties,  since  deceased, 
the  other  party  cannot  testify  to  the  transac- 
tion unless  called  by  the  principal,  or  unless 
the  aqent's  testimony  previously  taken  is  given 
in  behalf  of  his  principal,  or  unless  the  prin- 
cipal himself  testifies.     The  usual  provision 


is  also  stated,  if  the  testimony  of  a  person 
subsequently  disqualified  has  been  taken  pre- 
viously and  is  introduced  in  the  trial,  it  au- 
thorizes the  other  party  to  testify  to  the  same 
Jacts. 

Washington  (Hill's  Code,  vol.  2,  sec. 
1646).  Parties  and  persons  interested  are 
competent,  e.rcept  that  if  one  party  is  execu- 
tor, administrator,  or  legal  rejiresentative  of, 
or  claiming  under,  a  deceased  person,  or  is  a 
guardian  or  conservator  of  an  insane  person 
or  minor  under  fourteen  years  of  age,  then 
neither  party  in  interest  or  to  the  record  can 
testify  as  to  any  transactions  or  statements 
with  the  deceased  or  insane  person,  or  the 
minor ,  but  this  exclusion  does  not  apply  to 
jiarties  of  record  who  are  merely  rejiresenta- 
tive or  fiduciaries,  and  have  no  further  inter- 
est in  the  action. 

W.  Virginia  (Code,  ch.  130,  sec.  23). 
Parties  and  persons  interested  are  competent, 
except  that  no  party  or  person  interested,  or 
person  from  whom  any  party  or  interested 
person  gets  his  title,  can  testify  as  to  personal 
transactions  between  himself  and  a  person 
then  deceased  or  insane,  against  the  executor, 
administrator,  heir-at-law,  next  of  kin,  as- 
siqnee,  legatee,  devisee,  or  survivor  of  the 
deceased  person,  or  the  assignee  or  committee 
of  the  insane  person  ;  but  if  the  executor,  ad- 
ministrator, heir-at-law,  next  of  kin,  assignee, 
legatee,  devisee,  survivor,  or  committee,  is  ex- 
amined in  his  own  behalf,  or  the  testimony  oJ 
the  deceased  person  or  lunatic,  is  read  m  evi- 
dence, this  renders  the  other  party  competent 
as  to  such  points. 

Wisconsin  (Rev.  Stat.  1878,  sec.  4068, 
4069).  Persons  or  parties  interested  in  an 
action  are  competent,  this  point  affecting  only 
their  credibiliti/  ;  but  no  party  and  no  person 
fom  whom  a  'party  derives  title  am  testify  as 
to  any  transaction  or  communication  by  him 
with  a  deceased  person  or  person  then  insane, 
if  the  opposite  party  derives  his  title  or  de- 
fends his  liability  from  or  under  such  deceased 
or  insane  person  ;  or  if  the  insane  person  is 
a  party  to  the  suit  by  his  guardian  ;  unless 
such  opposite  party  was  first  examined  per- 
sonally, or  puts  in  testimony  as  to  such  trans- 
action or  communication,  or  unless  the  testi- 


CHAP.   II.] 


COMPETENCY   OP   WITNESSES. 


4GT 


a  man,  who  complains  without  cause,  or  defends  without  justice, 
should  have  honesty  enough  to  confess  it. "  ^ 

5  1  Gilb.  Evid.  by  Lofft,  p.  243. 


mony  of  the  deceased  or  insane  person  is 
given  in  evidence  bi/  the  opposite  party,  and 
then  onlif  as  to  the  transactions  to  which  such 
testinioni/  relates. 

In  liiis  State,  it  is  held  tliatin  an  action 
for  board  and  lodging  furnished  to  thd  de- 
ceased, it  is  competent  for  the  {)laintilf  to 
show  how  long  the  defendant's  intestate 
boarded  with  the  plaintitf,  and  the  kind 
of  board  furnished  by  the  plaiutitf,  since 
these  are  not  transactions  with  the  de- 
ceased, but  independent  facts.  Pritchard 
V.  Pritchard,  69  Wis.  1373.  And,  in  gen- 
eral, the  fact  of  furnishing  supplies  or 
goods  to  the  deceased,  from  which  the  law 
implies  a  promise  to  f)ay,  is  not  held  to  be 
covered  by  the  rule  in  this  State.  Behlen 
V.  Scott,  65  W^is.  420.  And  it  has  been 
held  that  a  letter  is  not  within  this  exclu- 
sion, because  a  personal  transaction  means 
a  face  to  face  transaction.  Daniels  v.  Fos- 
ter, 26  Wis.  686.  And  that  such  evidence 
is  admissible  when  it  is  an  admission 
against  his  interest,  as  of  a  payment  of 
money  due  to  him.  Crowe  v.  Colbeth,  63 
Wis.  643.  If  evidence  barred  by  the  rule 
is  put  iu  without  objection,  and  then  evi- 
dence to  rebut  it  is  introduced,  the  objec- 
tion to  it  is  waived.  Phillips  v.  McGrath, 
62  Wis.  124.  If  a  third  person  is  present 
at  such  a  conversation,  he  or  she  may  tes- 
tify to  it,  although  it  may  be  the  wife  of 
the  deceased  person,  without  rendering 
competent  the  testimonj'  of  the  surviving 
party.  Burnhamw.  Mitchell,  34  Wis.  117. 
The  payee  of  a  note  may  testify  with  what 
kind  of  ink  he  signed  it,  whether  he  struck 
out  any  printed  words,  and  other  facts 
bearing  on  the  question  of  alteration. 
Page  V.  Danaher,  43  Wis.  221.  And  if  a 
question  is  put  which  does  not  appear  to 
require  an  answer  which  is  objectionable 
under  the  rule,  it  is  error  to  exclude  the 
question.  Adams  v.  Allen,  44  Wis.  93. 
A  defendant  who  is  not  interested  in  the 
suit,  but  is  a  party,  cannot  testify  under 
this  rule.  Knox  v.  Bigelow,  15  Wis.  455. 
A  partner,  while  acting  in  the  affairs  of 
the  partnership,  is  so  far  an  agent  of  the 
other  partners  as  to  come  under  the  sec- 
tion of  this  statute  applying  to  agents. 
Piogers  V.  Brightman,  10  Wis.  55  ;  Whit- 
ney V.  Traynor,  74  Wis.  293. 

Sec.  4070.  It  is  further  provided  in  this 
State  that  no  party  or  person  from  rrhom  a 
person  claims  title,  can  testify  as  to  any 
transaction  with   an   agent   of  the   adverse 


party,  or  the  person  from  ivhom  the  adverse 
parly  claims  title  if  the  agent  is  dead  or  in- 
sane, or  otherwise  dis(/u(i/ijied,  tinless  the 
opposite  party  either  testijies  himself  or  puts 
in  evidence  as  to  the  transaction,  or  unless 
the  testimony  of  the  agent  is  jmt  in  evidence 
by  the  opposite  party  and  then  only  as  to  the 
points  which  such  testimony  touches. 

In  England,  an  attempt  has  been  made 
to  urge  upon  the  courts  a  rule  that  if  one 
of  the  parties  to  a  transaction  is  dead,  the 
testimony  of  the  other  cannot  lix  a  claim 
growing  out  of  the  transaction  upon  the 
estate  of  the  deceased  without  corrobora- 
tion, but  the  courts  have  explicitly  refused 
to  sanction  such  a  rule,  saying  that  while 
such  testimony  should  be  received  with 
caution,  and  even  sus])icion,  yet  if  it  stands 
the  test,  it  is  legal  evidence  to  sup[iort  the 
claim.  Gaudy  v.  Macaulay,  L.  K.  31  Vh. 
D.  1  ;  Beckett  v.  Ramsdale,  L.  R.  31  Ch. 
D.  177. 

In  many  of  the  States,  moreover,  any 
person  who  is  accused  in  a  criminal  pro- 
ceeding may,  if  he  wishes,  testify  in  his 
own  behalf  ;  but  in  all  cases  where  this 
provision  exists,  the  right  of  the  accused 
not  to  offer  himself  as  a  witness  is  care- 
fully recognized,  and,  in  many  instances, 
an  express  provision  of  statute  enacts  that 
no  presumption  shall  be  drawn,  unfavora- 
ble to  him,  from  his  refusal  to  testify. 
Ala.  Crim.  Code,  sec.  4473  ;  Ark.  acts  of 
1885,  act  82,  sec.  1  ;  Cal.  Crim.  Code,  sec. 
1323  ;  Con.  Gen.  St.  sec.  1623  ;  Fla. 
Laws,  sec.  29  ;  111.  Kev.  Stat.  c.  38,  sec. 
6  ;  Ind.  Rev.  Stat.  1888,  sec.  1798,  cl.  4  ; 
Iowa,  Rev.  Code,  sec.  3636  ;  Kans.  Gen. 
Stat.  sec.  5280,  5281  ;  Ky.  Gen.  Stat. 
p.  548,  c.  37,  sec.  1  ;  Me.  Rev.  Stat. 
c.  82,  sec.  94  ;  c.  134,  sec.  19  ;  Md.  Pub. 
Gen.  Laws,  art  35,  sec.  3  ;  Mass.  Pub. 
Stat.  c.  169,  sec.  18  ;  Mich.  Annot.  St. 
sec.  7544  ;  Minn.  Stats.  1891,  sec.  5095  ; 
Miss.  Laws,  1882,  c.  78,  p.  109,  sec.  1, 
])ar.  1603  ;  Mo.  Rev.  St.  sec.  4218  ;  Mont. 
Comp.  St.  Code  Civ.  Proc.  sec.  648  ;  Neb, 
Code,  sec.  473  ;  N.  H.  Pub.  Stat.  c.  223, 
sec.  24  ;  N.  Y.  Crim.  Code,  sec.  130  : 
N.  Car.  Code,  sec.  1353  ;  Ohio  Rev.  St. 
sec.  7286  ;  Oregon  Annot.  Laws,  .sec.  1365; 
Pa.  Law.s,  1887,  c.  89,  sees.  1,  10  ;  R.  LsL 
Pub.  Stat.  c.  214,  .sec.  39  ;  S.  Car.  Gen. 
Stat.  sec.  2231  ;  Tex.  Code  Crim.  Proc. 
art.  730  (4)  ;  Utah,  Crim.  Code,  art.  9, 
.sec.  5198  ;  Vt.  Rev.  Laws,  sec.  1655  ; 
Va.    Code,    1887.   sec.    3897   :    W.     Va. 


468  LAW   OF   EVIDENCE.  [PART  III. 

§  830.  Same  subject.  The  rule  of  the  common  law  goes  still 
further  in  regard  to  parties  to  the  record  in  7iot  compelling  them, 
in  trials  by  jury,  to  give  evidence  for  the  opposite  party,  against 
themselves,  either  in  civil  or  in  criminal  cases.  Whatever  may 
be  said  by  theorists,  as  to  the  policy  of  the  maxim.  Nemo  tenetur 
seipsum  prodere,  no  inconvenience  has  been  felt  in  its  practical 
application.  On  the  contrary,  after  centuries  of  experience,  it 
is  still  applauded  by  judges,  as,  "a  rule  founded  in  good  sense 
and  sound  policy ; "  ^  and  it  certainly  preserves  the  party  from 
temptation  to  perjury.  This  rule  extends  to  all  the  actual  and 
real  parties  to  the  suit,  whether  they  are  named  on  the  record  as 
such  or  not.^ 

§  331.  Corporators.  Whether  corporators  are  parties  within 
the  meaning  of  this  rule  is  a  point  not  perfectly  clear.  Corpora- 
tions, it  is  to  be  observed,  are  classed  into  public  or  municipal, 
and  private,  corporations.  The  former  are  composed  of  all  the 
inhabitants  of  any  of  the  local  or  territorial  portions  into  which 
the  country  is  divided  in  its  political  organization.  Such  are 
counties,  towns,  boroughs,  local  parishes,  and  the  like.  In  these 
cases,  the  attribute  of  individuality  is  conferred  on  the  entire 
mass  of  inhabitants,  and  again  is  modified,  or  taken  away,  at  the 
mere  will  of  the  legislature,  according  to  its  own  views  of  public 
convenience,  and  without  any  necessity  for  the  consent  of  the 
inhabitants,  though  not  ordinarily  against  it.  They  are  termed 
quasi  corporations ;  and  are  dependent  on  the  public  will,  the 

1  Worrall  v.  Jones,  7  Bing.  395,  per  Tindal,  C.  J.  ;  Rex  v.  Wohurn,  10  East,  403, 
per  Lord  Ellenborough,  C.  J.  ;  Commonwealth  v.  Marsh,  10  Pick.  57. 

2  Rex  V.  Woburn,  10  East,  395  ;  Manran  v.  Lamb,  7  Cowen,  174  ;  Appleton  v.  Boyd, 
7  Mass.  131  ;  Fenn  v.  Granger,  3  Canipb.  177. 

Code,  c.  130,  sec.  19  ;  Wash.  Hill's  Code,  Ruloff  v.   People,  45  N.  Y.  213  ;  Calkins 

vol.  2,  sec.  1307  ;  Wise.   Rev.   Stat.,  sec.  v.  State,  18  Ohio  St.  366. 

4071.  It  i.s,  however,  held  that  if  the  defen- 

For  the  statutes  at  large,  and  decisions  dant  in  a  criminal  case,  or  either  party  to  a 

affecting    this    point,    see    post,    vol.    iii.  civil  suit,  goes  on  the  stand  as  a  witness 

sec.  39  a.     It  may  be   doubted  whether  in  his  own  behalf,  he  waives  all  the  rights 

any  statutory  provision  would  be  able  to  which  an  ordinary  witness  would  have,  as 

prevent  the  jury  from  taking  a  bias  against  well  as  his  right  to  refuse  to  testify  in  the 

a  defendant  who  should  refuse  to  explain  case,   and  must   answer  questions   M'hich 

the  suspicious  facts  against  him  by  going  tend  to  criminate  him,  or  which  relate  to 

on  the  stand.     Cf.   Com.  v.  Moran,  130  confidential  communications  with  his  at- 

Mass.  281 ;  People  v.  Jones,  24  Mich.  215.  torney,  if  the  questions  relate  to  matters 

Whether,  where  the  statute  does  not  pro-  material  to  the  cause  in  hand  (Com.  v. 

hibit  any  adverse  inference,  from  the  fact  Mullen,  97  Mass.  545  ;  Com.  v.  Morgan, 

that  the  prisoner  does  not  take  the  stand,  107  Id.    199  ;    Woburn  v.  Henshaw,    101 

the  failure   raises  a  presumption    against  Mass.   193  ;    McGarry  i'.   People,  2  Lans. 

him,  see  State,  r.  Lawrence,  57  Me.   574,  (N".  Y.)  227),  and  may  be  impeached  like 

prn.  ;  Peo]ile  v.  Tyler,  36  Cal.  522  ;  Cran-  an  ordinary  witTiess.     Com.  v.  Bonner,  97 

dallr.People,2  Lansing  (N.Y.),  309,  ww/w.  Mass.  537;  Brandon  v.  People,   42  N.  Y. 

And  see  also  State  v.  Cameron,  40  Vt.  555  ;  265. 


CHAP.    II.]  COMPETENCY   OF    WITNESSES.  469 

inhabitants  not,  in  general,  deriving  any  private  and  personal 
rights  under  the  act  of  incorporation;  its  office  and  object  being 
not  to  grant  private  rights,  but  to  regulate  the  manner  of  perform- 
ing public  duties.^  (a)  These  corporations  sue  and  are  sued  by 
the  name  of  "  the  Inhabitants  of  "  such  a  place ;  each  inhabitant 
is  directly  liable  in  his  person  to  arrest,  and  in  his  goods  to 
seizure  and  sale,  on  the  execution,  which  may  issue  against  the 
collective  body,  by  that  name;  and  of  course  each  one  is  a  i)arty 
to  the  suit;  and  his  admissions,  it  seems,  are  receivable  in  evi- 
dence, though  their  value,  as  we  have  seen,  may  be  exceedingly 
light. 2  Being  parties,  it  would  seem  naturally  to  follow,  that 
these  inhabitants  were  neither  admissible  as  witnesses  for  them- 
selves, nor  compellable  to  testify  against  themselves ;  but  con- 
sidering the  public  nature  of  the  suits,  in  which  they  are  parties, 
and  of  the  interest  generally  involved  in  them,  the  minuteness  of 
the  private  and  personal  interest  concerned,  its  contingent  char- 
acter, and  the  almost  certain  failure  of  justice,  if  the  rule  were 
carried  out  to  such  extent  in  its  application,  these  inhabitants  are 
admitted  as  competent  witnesses  in  all  cases,  in  which  the  rights 
and  liabilities  of  the  corporation  only  are  in  controversy.  But 
where  the  inhabitants  are  individually  and  personally  interested, 
it  is  otherwise.  3  (6)     Whether  this  exception  to  the  general  rule 

1  Angell  &  Ames  on  Corp.  16,  17  ;  Rumford  v.  Wood,  13  Mass.  192.  The  obser- 
vations in  th(!  text  are  applied  to  American  corpoi-ations  of  a  political  character. 
Whether  a  municipal  corporation  can  in  every  case  be  dissolved  by  an  act  of  the  legis- 
lature, and  to  what  extent  such  act  of  dissolution  may  constitutionally  operate,  are 
questions  which  it  is  not  necessary  here  to  discuss.  See  Willcock  on  Munioij)al  Cor- 
porations, pt.  1,  §  852;  Terrett  v.  Taylor,  9  Cranch,  43,  51;  Dartmouth  College  v. 
Woodward,  i  Wheat.  518  ;  629,  663. 

2  Supra,  §  175,  and  n. 

3  Swift's  Evid.  57  ;  Rex  v.  Mayor  of  London,  2  Lev.  231.  Thus  an  inhabitant  is 
not  competent  to  prove  a  way  by  prescription  for  all  the  inhabitants,  Odiorne  v.  Wade, 
8  Pick.  518  ;  nor  a  right  in  all  the  inhabitants  to  take  shell-fish,  Lufkin  v.  Haskell, 
3  Pick.  356  ;  for  in  such  cases,  by  the  common  law,  the  record  would  be  evidence  of 
the  custom,  in  favor  of  the  witness.  This  ground  of  objection,  however,  is  now  re- 
moved in  England,  by  Stat.  3  &  4  W.  IV.  c.  42.  The  same  principle  is  applied  to  any 
private,  joint,  or  common  interest.  Parker  v.  Mitchell,  11  Ad.  &  El.  788.  See  also 
Prewit  V.  Tilly,  1  C.  &  P.  140  ;  Ang.  &  Ames  on  Corj).  390-394  ;  Connecticut  v.  Brad- 
ish,  14  Mass.  296;  Gould  v.  James,  6  Cowen,  369;  Jacobson  v.  Fountain,  2  .Toliiis. 
170  ;  Weller  v.  Governors  of  the  Foundling  Hospital,  Peake's  Cas.  153  ;  infra,  §  405. 
In  the  English  courts,  a  distinction  is  taken  between  raf.ed  and  ratahlc  inhabitants, 
the  fornier  being  held  inadmissible  as  witnesses,  and  the  latter  being  held  competent; 
and  this  distinction  has  been  recognized  in  some  of  our  own  courts;  though,  upon  the 
grounds  stated  in  the  text,  it  does  not  seem  applicable  to  our  institutions,  and  is  now 
generally  disregarded.  See  Commonwealth  v.  Pjaird,  4  S.  &  R.  141  ;  Falls  v.  P.elknap, 
1  Johns.  486,  491  ;  Corwein  v.  Hames,  11  Johns.  76;  Bloodgood  v.  Jamaica,  12  Johns. 
285;  supra  §  175,  n.,  and  the  cases  above  cited.  But  in  England,  rated  inhabitants 
are  now  by  statutes  made  competent  witnesses  on  indictments  for  non-repair  of  bridges 

(a)  Warren    i-.    Charlestown,    2    Gray  (i'/)  Cf.  Look  i-.  Bradley,  13  Met.  (Mass.) 

(Mass.),  84,  100.  369,  372. 


470  LAW    OF   EVIDENCE.  [PART   III, 

was  solely  created  by  the  statutes,  which  have  been  passed  on 
this  subject,  or  previously  existed  at  common  law,  of  which  the 
statutes  are  declaratory,  is  not  perfectly  agreed.^  In  either  case, 
the  general  reason  and  necessity,  on  which  the  exception  is 
founded,  seem  to  require,  that  where  inhabitants  are  admissible 
as  witnesses  for  the  corporation,  they  should  also  be  compellable 
to  testify  against  it.      But  the  point  is  still  a  vexed  question.^ 

§  332.  Same  subject.  Private  corpo7'ations,  in  regard  to  our 
present  in(|uiry,  may  be  divided  into  two  classes;  namely,  pecu- 
nlary  or  moneyed  institutions,  such  as  banks,  insurance,  and 
manufacturing  companies,  and  the  like,  and  institutions  or  socie- 
ties/or religious  and  charitable  purposes.  In  the  former,  mem- 
bership is  obtained  by  the  purchase  of  stock  or  shares,  without 
the  act  or  assent  of  the  corporation,  except  prospectively  and 
generally,  as  provided  in  its  charter  and  by-laws;  and  the  inter- 
est thus  acquired  is  private,  pecuniary,  and  vested,  like  ownership 
of  any  other  property.  In  the  latter,  membership  is  conferred  by 
special  election ;  but  the  member  has  no  private  interest  in  the 
funds,  the  whole  property  being  a  trust  for  the  benefit  of  others. 
But  all  these  are  equally  corporations  proper;  and  it  is  the  cor- 
poration, and  not  the  individual  member,  that  is  party  to  the 
record  in  all  suits  by  or  against  it.i     Hence  it  follows,  that  the 

in  actions  against  the  hundred,  under  the  statute  of  "Winton  ;  in  actions  for  riotous 
assemblies  ;  in  actions  against  church-wardens  for  misapplication  of  funds  ;  in  sum- 
mary convictions  under  7  &  8  Geo.  IV.  c.  29,  30  ;  on  the  tiial  of  indictments  under 
the  general  highway  act  and  the  general  turnpike  act  ;  and  in  matters  relating  to  rates 
and  cesses.  Phil.  &  Am.  on  Evid.  133-138,  395;  1  Phil.  Evid.  138-144.  In  the 
Province  of  New  Brunswick,  rated  inhabitants  are  now  made  competent  witnesses  in 
all  cases  where  the  town  or  parish  may  in  any  manner  be  affected,  or  where  it  may  he 
interested  in  a  pecuniary  penalty,  or  where  its  officers,  acting  in  its  behalf,  are  parties. 
Stat.  9  Vict.  c.  4,  March  7,  1846.  In  several  of  the  United  States,  also,  the  inhab- 
itants of  counties  and  other  municipal,  territorial,  or  quasi  corporations  are  expressly 
declared  by  statutes  to  be  competent  witnesses,  in  all  suits  in  which  the  corporation  is  a 
party.  See  Maine,  Rev.  Stat.  1840,  c.  115,  §  75  ;  Massachusetts,  Rev.  Stat.  c.  94,  §  54  ; 
Vermont,  Rev.  Stat.  1839,  c.  31,  §  18  ;  New  York,  Rev.  Stat.  vol.  i.  pp.  408,  439  (3d 
ed.)  ;  Pennsylvania,  Dunl.  Dig.  pp.  215,  913,  1019,  1165  ;  Michigan,  Rev.  Stat.  1846, 
0.  102,  §  81  ;  Wisconsin,  Ilev.  Stat.  1849,  c.  10,  §  21 ;  Id.  c.  98,  §  49  ;  Virginia,  Rev. 
Stat.  1849,  c.  176,  §  17  ;  Missouri,  Rev.  Stat.  1845,  c.  84,  art.  1,  §  25.  In  New  Jer- 
sey, they  are  admissible  in  suits  for  moneys  to  which  the  county  or  town  is  entitled. 
Rev.  Stat.  1846,  tit.  34,  c.  9,  §  5.  See  Stewart  v.  Saybrook,  Wright,  374  ;  Barada  v. 
Carondelet,  8  Mo.  644. 

*  Suprn,  §  175,  and  the  cases  cited  in  note.  See  also  Phil.  &  Am.  on  Evid.  p.  395, 
n.  (2)  ;  1  Phil.  Evid.  375  ;  City  Council  v.  King,  4  McCord,  487  ;  Marsden  v.  Stans- 
tield,  7  B.  &  C.  815  ;  Rex  v.  Kirdford,  2  East,  559. 

5  In  Rex  V.  Woburn,  10  East,  395,  and  Kex  v.  Hardwick,  11  East,  578,  584,  586, 
580,  it  was  said  that  they  were  not  compellable.  See,  accordinglv,  Plattekill  v.  New 
Paltz,  16  Johns.  305. 

^  Merchants'  Bank  v.  Cook,  4  Pick.  405.  It  has  been  held  in  Maine,  that  a  cor- 
porator, or  shareholder  in  a  maaeyed  institution,  is  substantially  a  party,  and  therefore 
is  not  compellable  to  testify  where  the  corporation  is  party  to  the  record.  Bank  of 
Oldtown  V.  Houlton,  8  Shepl.  501,  Shepley,  J.,  dissenting. 


CHAP.    II.]  COMPETENCY  OP   WITNESSES.  471 

declarations  of  the  members  are  not  admissilile  in  evidence  in 
such  actions  as  the  declarations  of  parties,*  though  where  a  mem- 
ber or  an  ofiicer  is  an  agent  of  the  cori)oration,  his  declarations 
may  be  admissible,  as  part  of  the  res  yeatce.'' 

§  333.  Corporators  excluded  from  interest.  But  the  members 
or  stockholders,  in  institutions  created  for  private  emolument, 
though  not  parties  to  the  record,  are  not  therefore  admissible  as 
tcitnesses;  for,  in  matters  in  which  the  corporation  is  concerned, 
they  of  course  have  a  direct,  certain,  and  vested  interest  which 
necessarily  excludes  them.^  Yet  the  members  of  charitable  and 
religious  societies,  having  no  personal  and  private  interest  in  the 
property  holden  by  the  corporation,  are  competent  witnesses  in  any 
suit  in  which  the  cori)oration  is  a  party.  On  this  ground,  a  mere 
trustee  of  a  savings  bank,  not  being  a  stockholder  or  a  depositor,^ 
and  a  trustee  of  a  society  for  the  instruction  of  seamen, ^  and 
trustees  of  many  other  eleemosynary  institutions,  have  been  held 
admissible  witnesses  in  such  suits.  But  where  a  member  of  a 
private  corporation  is  inadmissible  as  a  witness  generally,  he 
may  still  be  called  upon  to  produce  the  corporate  documents,  in 

*  City  Bank  v.  Bateman,  7  Har.  &  Johns.  104,  109  ;  Hartford  Rank  v.  Hart,  3  Day, 
491  495  ■  iMai^ill  v.  Kauffman,  4  S.  &  R.  317  ;  Stewart  v.  Huntingdon  Bank,  11  S.  & 
R.  267  ;  Atlairtic  Ins.  Co.  v.  Conard,  4  Wash.  C.  C.  663,  677  ;  Fairfield  Co.  Turnpike 
Comp.  V.  Thorp,  13  Conn.  173. 

*  Supra,  §§  108,  113,  114. 

1  This  rule  extends  to  the  members  of  all  corporations,  having  a  common  fund  dis- 
tributable among  the  members,  and  in  which  they  therefore  have  a  private  interest ; 
the  principle  of  exclusion  applying  to  all  cases  where  that  private  interest  would  be 
affected.  Doe  d.  Mayor  and  Burgesses  of  Stafford  v.  Tooth,  3  Younge  &  Jer.  19  ;  City 
Council  V.  King,  4  McCord,  487,  438  ;  Davies  v.  Morgan,  1  Tyrwh.  457.  Where  a  cor- 
poration  would  examine  one  of  its  members  as  a  witness,  he  may  be  rendered  compe- 
tent, either  by  a  sale  of  his  stock  or  interest,  where  membership  is  gained  or  lost  in 
that  way ;  or  "by  being  disfranchised  ;  which  is  done  by  an  information  in  the  nature  of  a 
quo  warranto  against  the  member,  who  confesses  the  information,  on  which  the  jdain- 

tiff  obtains  judgment  to  disfranchise  him.     Mayor  of  Colchester  v. ,  1  P.  Wms. 

595.  Where  tlie  action  is  against  the  corporation  for  a  debt,  and  the  stockholders  are 
by  statute  made  liable  for  such  debt,  and  their  property  is  liable  to  seizure  upon  the 
execution  issued  against  the  corporation,  a  member,  once  liable,  remains  so,  notwith- 
standing his  alienation  of  stock  or  disfranchisement,  and  therefore  is  not  a  competent 
witness  "for  the  corporation  in  such  action.  Mill-Dam  Foundry  v.  Hovey,  21  Pick.  453. 
Bit  where  his  liability  to  the  execution  issued  against  the  corporation  is  not  certain, 
but  depends  on  a  sfiecial  order  to  be  granted  bv  the  court,  in  its  discretion,  he  is  a  com- 
petent witness.  Needham  v.  Law,  12  jM.  &  W.  560.  The  clerk  of  a  corporation  is  a 
competent  witness  to  identify  its  books  and  verify  its  records,  although  he  be  a  mem- 
ber of  the  corporation  and  interested  in  the  suit.  Wiggin  v.  Lowell,  8  Met.  301.  In 
several  of  the  United  States,  however,  the  members  of  private  corporations  are  made 
competent  witnesses  by  exjiress  statutes  ;  and  in  others,  they  are  rendered  so  by  force 
of  general  statutes,  removing  the  objection  of  interest  from  all  witnesses.  Supra, 
§  331. 

'•*  Miildletown  Savings  Bank  v.  Bates,  11  Conn.  519. 

3  Miller  v.  Mariner's  Church,  7  Greenl.  51.  See  also  Anderson  v.  Brock,  3  Greenl. 
243;  Wells  v.  Lane,  8  Johns.  462;  Gil[.iii  v.  Vincent,  9  Johns.  219;  Kayson  v. 
Thatcher,  7  JIass.  398  ;  Cornwall  v.  Lshain,  1  Da.y,  35  ;  Richardson  v.  Freeman,  6 
Greenl.  57  ;  Weller  v.  Foundling  Hospital,  Peake's  Cas.  153. 


472  LAW   OF   EVIDENCE.  [PART   III. 

an  action  against  the  corporation ;  for  he  is  a  mere  depositary, 
and  the  party  objecting  to  his  competency  is  still  entitled  to  in- 
quire of  him  concerning  the  custody  of  the  documents.*  And  if 
the  trustee,  or  other  member  of  an  eleemosynary  corporation,  is 
liable  to  costs,  this  is  an  interest  which  renders  him  incompe- 
tent, even  though  he  may  have  an  ultimate  remedy  over.^ 

§  334.  Husband  and  wife.  The  rule  by  which  parties  are  ex- 
cluded from  being  witnesses  for  themselves  applies  to  the  case 
of  husband  and  wife;  neither  of  them  being  admissible  as  a  wit- 
ness in  a  cause,  civil  or  criminal,  in  which  the  other  is  a  party.  ^ 
This  exclusion  is  founded  partly  on  the  identity  of  their  legal 
rights  and  interests,  and  partly  on  principles  of  public  policy, 
which  lie  at  the  basis  of  civil  society.  For  it  is  essential  to  the 
happiness  of  social  life  that  the  confidence  subsisting  between 
husband  and  wife  should  be  sacredly  protected  and  cherished  in 
its  most  unlimited  extent;  and  to  break  down  or  impair  the  great 
principles  which  protect  the  sanctities  of  that  relation  would  be 
to  destroy  the  best  solace  of  human  existence.  ^  (a)      [Ed.  This 

*  Rex  V.  Inhabitants  of  Netherthong,  2  M.  &  S.  337  ;  Willcock  on  Municipal  Corp. 
309  ;  Wiggin  v.  Lowell,  8  Met.  301. 

^  Rex  V.  St.  Mary  Magdalen,  Bermondse}',  3  East,  7. 

1  An  exception  or  qualification  of  this  rule  is  admitted,  in  cases  where  the  husband's 
account-books  have  been  kept  by  the  wife,  and  are  offered  in  evidence  in  an  action 
brought  by  him  for  goods  sold,  &c.  Here  the  wife  is  held  a  competent  witness,  to  tes- 
tify that  she  made  the  entries  by  his  direction  and  in  his  presence;  after  which  his 
own  suppletory  oath  may  be  received,  as  to  the  times  when  the  charges  were  made,  and 
that  they  are  just  and  true.  Littlefield  v.  Rice,  10  Met.  287.  And  see  Stanton  v. 
Willson,  3  Day,  37  ;  Smith  v.  Sanford,  12  Pick.  139.  In  the  principal  case,  the  cor- 
rectness of  the  contrary  decision  in  Carr  v.  Coi-nell,  4  Vt.  116,  was  denied.  In  Iowa, 
husband  and  wife  are  competent  witnesses  for,  but  not  against,  each  other,  in  criminal 
prosecutions.     Code  of  1851,  art.  2391. 

2  Stein  V.  Bowman,  13  Peters,  223,  Per  McLean,  J.  ;  supra,  §  254  ;  Co.  Lit.  6  h; 
Davis  V.  Dinwoody,  4  T.  R.  678  ;  Barker  v.  Dixie,  Cas.  temp.  Hardw.  264  ;  Bentley  v. 
Cooke,  3  Doug.  422,  per  Ld.  Mansfield.  The  rule  is  the  same  in  equity.  Vowles  v. 
Young,  13  Ves.  144.  So  is  the  Law  of  Scotland.  Alison's  Practice,  p.  461.  See  also 
2  Kent,  Comm.  179,  180;  Commonwealth  v.  Marsh,  10  Pick.  57;  Robin  v.  King,  2 
Leigh,  142,  144  ;  Snyder  v.  Snyder,  6  Binn.  488  ;  Corse  v.  Patterson,  6  Har.  &  Johns. 
153  ;  Barbat  v.  Allen,  7  Exchr.  609. 

(a)  Many  States  have  enacted  statutes  party  to  the  suit  is  immaterial.  It  has 
regulating  the  admissibility  of  husband  been  thought  best  to  collect  the  statutes 
and  wife  as  witne.sses.  There  are,  as  the  and  decisions  at  this  place,  since  the  ma- 
author  says,  two  grounds  for  excluding  jority  of  them  apply  to  the  incompetency 
their  testimony.  First,  a  general  incom-  arising  from  interest  in  the  suit.  See  also, 
petency  of  husband  and  wife  to  testify  on  however,  for  some  decisions,  ante,  §  254. 
account  of  their  identity  of  interest  when  In  Alabama,  it  is  held  that  the  husband  of  a 
the  other  is  a  part}'  to  the  suit  or  inter-  jmrfy  can  only  testify  in  her  favor  as  to 
ested  in  the  event  ;  second,  the  disad-  tnnisactions  in  ichich  he  acted  as  her  agent ; 
vantages  arising  from  allowing  either  to  and  the  ivife  is  not  competent  as  a  ivitness  for 
testify  as  to  communications  made  in  the  the  husband.  Woods  r.  State,  76  Ala.  35; 
confidence  of  the  marital  relation,  which  Hussey  v.  State,  87  Ala.  135.  In  Ar- 
are  hereinafter  referred  to  as  "confidential  kansas  (Code,  sec.  2859,  cl.  4),  husband 
communications."  In  the  latter  case  the  and  wife  are  incompetent  to  testify  for  or 
fact  that  neither  husband  nor  wife  is  a  against  each  other,  or  as  to  confidential  com- 


CHAP.    II.] 


COMPETENCY  OP  WITNESSES. 


473 


subject  has  been  regulated  in  many  States  by  statutes  which  are 
given  in  the  notes  below.] 


mnnicatlons  made  during  the  viarriaije  ;  but 
either  can  tesiifi)  for  the  other  as  to  any  busi- 
ness transacted  bij  the  one  fur  the  other  us 
agent.  See  Colli'ns  z;.  M;i("k,  31  Ark.  684; 
Phipps  V.  Martin,  33  Ark.  207  ;  Watkins 
V.  Turner,  34  Ark.  6fi3.  la  California 
(Civ.  Code,  sec.  1831,  el.  1),  neither  can  be 
examined  for  or  against  the  other  without  the 
other^s  consent ;  nor  can  either  at  any  time 
testiffi  without  the  consent  of  the  other  to  any 
conjidenlial  communications;  but  this  exclu- 
sion does  not  apply  to  a  civil  action  or  pro- 
ceeding, by  one  against  the  other,  nor  to  a 
criminal  proceeding  for  a  crime  committed 
by  one  against  the  other.  In  criminal  cases 
in  the  same  State  (Crim.  Code,  sec.  1322), 
except  with  the  consent  of  both,  or  in  cases  of 
criminal  violence  ujion  one  by  the  other,  nei- 
ther husbmid  nor  wife  is  a  competent  witness 
for  or  against  tlie  other  in  a  criminal  pro- 
ceeding in  u-hich  one  or  both  are  parties. 
Under  tlifs  section  it  iias  been  held  tliat 
proof  of  reputation  in  a  community,  and 
long  cohabitation  and  mingling  in  society- 
is  sufficient  prima  facie  evidence  of  mar- 
riage between  the  parties.  People  v.  An- 
derson, 26  Cal.  130.  But  there  must  be 
some  proof  of  the  marriage,  otherwise  the 
person  is  a  competent  witness.  People  v. 
Alviso,  55  Cal.  230.  The  rule  has  been 
extended  so  as  to  exclude  declarations  out 
of  court  made  by  the  wife  to  a  third  per- 
son, who  introduces  them  in  evidence. 
People  V.  Simonds,  19  Cal.  276.  But  in 
another  case  evidence  of  her  acts  and  ex- 
clamations at  the  time  of  a  killing,  for  which 
her  husband  was  afterwards  indicted,  made 
in  his  presence  and  hearing,  was  admitted. 
People  V.  Murphy,  45  Cal.  143.  In 
Colorado,  the  statutory  enactments  in  this 
reqard  are  almost  precisely  similar  to  those  in 
(California  (den.  Laws,  sec.  3649).  In 
Connecticut  (Gen.  Sts.  sec.  1097),  a  wife 
is  by  statute  a  competent  ivitness  against  her 
husband  in  any  action  brought  against  him 
for  necessaries  furnished  her  while  living 
apart  from  him.  In  this  State  (Sec.  1623), 
in  criminal  trials  the  husband  or  wife  of  the 
accused  is  a  competent  witness,  but  may  elect 
or  refuse  to  testify  for  or  against  the  accused, 
except  that  tlie  wife,  when  she  has  received 
personal  violence  from  her  husband,  may  upon 
his  trial  therefor,  be  compelled  to  testify  In  the 
same  manner  as  any  other  witness.  In  this 
State,  it  is  held  at  common  Into  that  the  rule 
of  evidence  that  the  wife  shall  not  testify 
against  her  husband  is  founded  ttpon  }>rinci- 
ples  of  public  policy,  and  is  not  applicable  in 
actions  ifhere  the  husband  and  wfe  have  con- 
flicting interests  and  are  opposing  parties, 


such  as  in  suits  for  divorce,  or  suits  by  the 
wife  seeking  protection  against  the  husband, 
or  in  suits  between  them  in  ecpiity  relating  to 
the  wife's  separate  estate.  Accordingly,  it 
was  held  that  the  wife's  testimony  was  ad- 
missible, in  an  action  by  her  against  her 
husband  in  insolvency,  to  reclaim  a  i)or- 
tion  of  her  estate.  Spitz's  App.  56  Conn. 
185.  In  Florida  (Laws,  ch.  101,  sec.  23, 
and  Acts  of  1891,  sec.  4029),  in  civil 
actions  neither  husband  nor  ivife  is  excluded 
as  a  witness  in  cases  wherein  either  said  hus- 
band or  wife  is  an  interested  party.  In 
Georgia  (Code,  sec.  3854,  cl.  4),  no  husband 
is  competent  or  compellable  to  give  evidence 
for  or  against  his  wife  in  any  criminal 
proceeding,  nor  is  a  wife  in  any  criminal 
proceeding  competent  or  compellable  to  give 
evidence  for  or  ai/ainst  her  husband,  but  the 
wife  is  competent,  but  7wt  compellable,  to  tes- 
tify against  her  husband  upon  his  trial  for 
any  criminal  offence  committed  or  attempted 
to  have  been  committed  upon  her.  In  Illi- 
nois (Rev.  Stat.  ch.  51,  sec.  5),  neither 
husband  nor  wife  can  at  any  time  testify  for 
or  against  the  other  as  to  any  transaction  or 
conversation  occurring  during  the  marriage, 
except  in  cases  lohere  the  wife  would,  if  un- 
married, be  plaintiff  or  defendant,  or  where 
the  action  is  for  a  personal  wrong  or  injury 
done  by  one  to  the  other,  or  is  for  the  neglect 
of  the  husband  to  support  the  wife,  and  except 
in  cases  where  the  litigation  is  not  concerning 
the  separate  property  of  the  wife,  and  suits 
for  divorce,  and  except,  also,  in  actions  upon 
policies  of  insurance  on  property  as  to  the 
amount  or  value  of  the  property  injured,  or  in 
actions  against  carriers  as  to  the  loss  of 
property  and  the  amount  and  value  thereof, 
or  in  all  transactions  where  the  married 
woman  acted  as  the  agent  of  her  husband,  in 
all  of  which  cases  the  husband  and  ivife  may 
testify  for  or  against  the  other  just  as  other 
parties  may  ;  but  this  act  does  not  permit 
either  husband  or  wife  to  testifi/  to  admis- 
sions or  conversations  of  the  other,  even  if 
made  to  third  parties,  except  in  suits  between 
the  husband  and  wife.  This  statute  does 
not  apply  to  criminal  cases.  Miner  v. 
People,  58  111.  59.  The  exclusion  con- 
tinues after  divorce  (Crose  v.  Kutledge,  81 
111.  266),  .but  only  a[)i)lies  when  the  hus- 
band or  wife  is  a  party  to  the  record,  even 
though  he  or  she  may  be  interested  in  the 
event.  Lincoln  Avunue  &c.  Road  Co.  v. 
Madaus,  102  111.  417.  When  neither 
husband  nor  wife  are  parties  to  the  suit, 
the  wife  may  testify  to  conversations 
occurring  during  the  existence  of  the 
marriage  relation.     Galbraith  v.  McLain, 


474  LAW   OF   EVIDENCE.  [pART   III. 

§  335.  Extent  of  the  rule.     The  principle  of  this  rule  requires 


84  111.  379.  Under  this  statute  it  is  held 
that  since  the  competency  of  husband  and 
wife  is  made  to  depend  upon  the  same 
rales  as  "other  parties,"  the  provisions  of 
the  statutes  excluding  the  evidence  of  par- 
ties when  the  opposite  paity  represents  a 
deceased  peison,  applies  equally  to  hus- 
band and  wife.  Treleaven  v.  Dixon,  119 
111.  fto\  ;  Harriman  v.  Sampson,  23  111. 
App.  161  ;  Shaw  v.  Schoonover,  130 
111.  448.  In  Indiana  (Rev.  Srs.  sec. 
501 ),  if  a  husbdnd  or  ivij'e  is  <i  party  and 
not  a  cain/ietent  witness  in  his  or  her  own  be- 
half, the  other  is  also  excluded,  except  that 
the  husband  is  a  competent  witness  in  a  suit 
for  seduction  of  the  wife,  but  she  is  not  com- 
petent. In  this  State,  it  is  held  that  testi- 
mony as  to  negotiations  between  the  hus- 
band and  wife  as  to  a  conveyance  of 
land  from  one  to  the  other  are  not  such 
communications  as  to  come  under  the  pro- 
tection of  the  statute.  Beitman  v.  Hop- 
kins, 109  Ind.  178.  In  Iowa  (Code,  sec. 
ZQil),  neither  husband  nor  wife  can  in  any 
case  be  a  witness  against  the  other,  except  in 
a  criminal  prosecution  for  a  crime  committed 
bij  one  against  the  other,  or  in  a  civil  action 
of  one  against  the  other ;  but  they  may  in  all 
civil  and  criminal  cases  be  witnesses  for  each 
other.  It  is  held  that  when  a  wife  testifies 
in  behalf  of  her  husband  the  credibility  of 
her  evidence  is  to  be  subject  to  the  same 
tests  as  are  applied  to  other  witnesses. 
State  V.  Guyer,  6  Iowa,  263.  And  it  is 
error  for  the  court  to  instruct  the  jury 
that  her  testimony  should  be  examined 
with  particular  care.  State  v.  Bernard, 
45  Iowa,  234  ;  State  v.  Collins,  20  Iowa, 
85.  On  thi;  trial  of  an  indictment  for 
bigamy  the  legal  husband  or  wife  of  the 
defendant  is  a  competent  witness  in  behalf 
of  the  prosecution.  State  v.  Sloan,  55 
Iowa,  217.  In  an  indictment  against 
both  husband  and  wife  for  keeping  a  house 
where  intoxicating  liquors  have  been  un- 
lawfully sold,  the  trial  of  both  taking  place 
together,  the  wife  is  a  competent  witness 
for  her  husband,  but  her  testimony  cannot 
be  considered  in  her  own  behalf.  State  v. 
Donovan,  41  Iowa,  587.  In  this  State, 
there  is  a  further  provision  (Code,  sec. 
3642)  that  neither  husband  nor  wife  can  be 
examined  in  any  case  as  to  any  communica- 
tion made  by  one  to  the  other  ivhite  married, 
nor  shall  they  after  the  marriage  relation 
ceases,  be  permitted  to  reveal  in  testimony 
any  such  communication  made  while  the  mar- 
riage subsisted.  This  section  does  not 
render  the  wife  incompetent,  after  the 
death  of  her  husband,  to  testify  as  to  mat- 
ters which  she  knew  of  her  own  knowledge. 


Romans  v.  Hay,  12  Iowa,  270.  In  Kan- 
sas (Gen.  Sts.  sec.  5280),  the  husband  or 
wife  of  the  accused  in  criminal  cases  is  com- 
petent but  shall  not  be  required  to  testify  ex- 
cept on  behalf  of  the  accused,  and  the  neglect 
or  refusal  of  the  wife  to  testify  for  her  hus- 
band  shall  not  raise  any  presuinjition  of  guilt , 
nor  be  referred  to  by  any  attorney  prosecuting 
the  case;  in  civil  actions  (sec.  HIH),  husband 
or  wife  are  incompetent  to  testify  for  or 
against  each  other  concerning  transactions  in 
which  one  acted  as  the  agent  of  the  other,  or 
when  they  are  joint  parties  or  have  a  joint 
interest  in  the  action ;  and  neither  can  at  any 
time  testify  as  to  any  confidential  communi- 
cations. Under  the  section  referring  to 
competency  in  criminal  cases,  it  is  held 
that  the  wife  of  the  accused  in  a  criminal 
case  is  a  competent  witness  for  the  State. 
The  court  cannot  require  her  to  testify, 
but  may  permit  her  to  do  so  voluntarily. 
State  V.  McCord,  8  Kans.  161.  In  Maine 
(Rev.  Sts.  ch.  134,  sec.  19,  and  ch.  82, 
sec.  93),  the  husband  or  wife  of  the  accused 
in  a  criminal  case  is  a  competent  witness  ; 
and  the  husband  or  wife  of  either  party  in  a 
civil  case  may  be  a  witness.  Under  this 
statute  it  is  held  that  if  the  action  is 
against  the  representatives  of  a  deceased 
person,  the  husband  or  wife  of  the  oj)posite 
party  is  not  competent,  the  competency  in 
such  case  being  governed  by  the  rules  as 
to  parties.  Berry  v.  Stevens,  69  Me.  290  ; 
Jones  V.  Simpson,  59  Me.  180.  The  de- 
sign of  this  statute  is  to  do  away  with  the 
incompetency  of  husband  and  wife  as  wit- 
nesses at  conuiion  law,  and  not  to  render 
them  competent  where  by  law  their  testi- 
mony would  be  excluded  on  a  different 
ground.  Drew  v.  Roberts,  48  Me.  35. 
In  Maryland  (Gen.  Laws,  art.  35,  sec.  1), 
the  wife  or  husband  of  a  parti/  to  a  suit  or 
one  on  whose  behalf  it  is  brought,  is  competent 
and  compellable  to  testify  ;  and  (sec.  3)  tn 
criminal  jtroceedings  the  husband  or  wife  of 
the  accused  jiarty  is  competent,  but  in  no  case, 
civil  or  criminal,  shall  any  husband  or  wife 
be  competent  to  disclose  any  confidential  com- 
munication made  by  the  one  to  the  other 
during  the  marriage.  In  JIassachusetts 
(Pub.  Sts.  ch.  169,  sec.  18),  neither  husband 
nor  wife  ran  testify  as  to  private  conversa- 
tions with  the  other,  and  neither  is  compel- 
lable to  be  a  witness  on  any  criminal 
proceeding  against  the  other.  As  to  what 
are  private  conversations,  see  ante,  sec.  254, 
note.  In  Michigan  (Howells  Annot.  Stat, 
sec.  7543),  marital  relationship  does  not  ex- 
clude any  party  to  the  proceeding,  but  may 
be  shown  to  affect  his  credibility  ;  and  also 
(sec.  7546,  as  amended  in  Michigan  Sup- 


CHAP.    II.]  COMPETENCY   OF    WITNESSES.  475 

its  application  to  all  cases  in  which  the  interests  of  the  other 


plement,  vol.  3)  neither  husband  nor  wife 
can  he  examined  for  or  afjainstthe  other  with- 
out the  other's  consent,  except  in  cases  where 
the  cause  of  action  is  for  a  personal  wrong 
done  by  one  to  the  other,  or  is  for  the  refisal 
or  neijlect  to  support  the  wife  or  children  ;  and 
except  in  cases  where  either  is  a  parti/  to  the 
record  in  a  proceeding  where  the  title  to  the 
separate  properti/  of  the  one  offered  as  a 
witness  is  the  subject-matter  in  controuersi/, 
in  opposition  to  the  claim  or  interest  of  the 
other  who  is  a  party  to  the  record  in  such 
proceediw/;  and  in  all  such  cases  the  hus- 
band or  wife  who  makes  such  claim  or  title, 
or  under  or  from  whom  such  title  is  derived, 
is  as  competent  to  testify  in  relation  to  the 
separate  property  and  the  title  thereto,  with- 
out the  consent  of  the  other,  who  is  a  party 
to  the  record,  as  'though  the  marriage  relation 
did  not  exist ;  neither  can,  at  any  time,  with- 
out the  consent  of  both,  be  examined  as  to 
am/  confidential  communications  ;  but  in  any 
action  by  either,  in  consequence  of  adultery, 
the  husband  and  wife  shall  not  be  competent  to 
testify.  Previous  to  the  enactment  of  this 
Statute  the  eourts  of  equity  had  assumed  the 
power  to  call  the  parties  as  witnesses  when 
in  their  opinion  it  was  necessary  to  get  at 
the  facts  of  the  case,  and  this  statute  does 
not  take  away  the  power  from  the  court. 
Hamilton  v.  Hamilton,  37  Mich.  605. 
Under  the  statute,  as  above  recited,  it  is 
held  that  when  the  litigation  is  between 
husband  and  wife  and  relating  to  title  to 
their  separate  property,  they  can  testify 
without  the  consent  of  the  other,  even  as 
to  communications  made  confidentially 
during  the  existence  of  the  marriage  re- 
lation. Hunt  V.  Eaton,  55  Mich.  362. 
But  except  in  such  litigation  neither  death 
nor  divorce  can  render  either  of  them  com- 
petent to  testify  as  to  such  confidential 
communications.  Hitchcock  v.  Moore, 
70  Mich.  112 ;  Maynard  v.  Vinton,  59 
Mich.  139.  In  actions  for  criminal  con- 
versation, the  husband  cannot  testify,  nor 
can  the  wife  testify  for  him.  Gleason  v. 
Kuapp,  56  Midi.  291;  Mathews  -w.  Yerex, 
48  Mich.  361  ;  Cross  v.  Cross,  55  Mich. 
280.  See  also,  on  this  section.  Perry  v. 
Lovejoy,  49  Mich.  529;  Hubbell  v.  Grant, 
39  Mich.  641  ;  White  v.  Ross,  47  Mich. 
172.  In  Minnesota  (Statutes,  sec.  5094), 
a  statute  similar  to  the  statute  of  California, 
Above  quoted,  is  enacted.  State  v.  Arm- 
strong, 4  Minn.  251.  Under  this  statute 
it  is  held  that  any  communication  be- 
tween husband  and  wife  is  excluded  by 
the  statute.  The  court  discusses  the  ques- 
tion as  to  whether  the  communication 
must  be  of  a  confidential  nature,  and  holds 


that  this  limitation  is  not  only  excluded 
by  the  phraseology  of  the  statute,  but 
would  be  extremely  difficult  of  applica- 
tion, introducing  a  separate  additional 
issue  in  each  case  ;  and  that  to  enable  the 
court  to  judge  as  to  its  character,  the  com- 
munication would  have  to  be  disclosed, 
and  so  the  very  mischief  committed  which 
was  designed  to  be  prevented.  Leppla  v. 
Minnesota  Tribune  Co.,  35  Minn.  311. 
In  the  case  of  Wolford  v.  Farnhaiu,  44 
Minn.  159,  the  court  construed  the  statute 
as  holding  that  an  ordinary  civil  action, 
whatever  might  be  its  purpose,  could  not 
be  construed  to  be  a  proceeding  "supple- 
mentary to  execution,"  even  though  it 
came  after  the  execution  and  was  in  aid 
of  it. 

In  Mississippi  (Rev.  Code,  sec.  1601), 
either  husband  or  wife  is  a  competent  wit- 
ness in  all  cases  civil  or  criminal ;  and 
(Laws  of  1886,  ch.  60,  p.  142,  sec.  1) 
either  husband  or  wife  is  competent  to  testify 
in  his  or  her  own  behalf  as  against  the  other 
in  a  controversy  between  them  invoicing  the 
property  of  either,  or  their  marital  relations, 
or  the  custody  of  their  children,  or  the  chil- 
dren of  either  of  them,  or  the  property  of  the 
children  of  either  of  them.  In  Missouri 
(Rev.  Sts.  sec.  8922),  married  women  are 
made  competent  in  any  civil  suit  by  or 
against  their  husbands,  whether  joined  or 
not  as  a  party,  in  the  following  cases,  to  wit : 
First,  in  actions  upon  policies  of  insurance 
of  property  so  far  as  relates  to  the  amount 
and  value  of  the  property  alleged  to  be  in- 
jured or  destroyed ;  second,  in  actions 
against  carriers,  so  far  as  relates  to  the  loss 
of  property  and  the  amount  and  value  there- 
of; third,  in  all  business  transactions  con- 
ducted by  the  married  woman  as  the  agent 
of  her  husband ;  and  a  married  man  issim- 
ilarlij  competent  when  he  acts  as  agent  of 
his  wife  ;  but  no  married  woman  can,  while 
the  relation  exists,  or  subsequently,  testify  to 
any  admissions  or  conversations  of  her  hus- 
band, whether  made  to  herself  or  to  third 
parties.  Under  this  statute  it  is  held  that 
the  wife  is  a  competent  witness  when 
joined  with  her  husband  as  a  party  to  a 
suit,  except  as  to  communications  between 
the  two.  Buck  v.  Ashbrook,  51  Mo.  539  ; 
Tingley  v.  Cowgill,  48  Mo.  291.  And 
also,  where  either  of  them  is  a  nominal 
partv  to  the  suit.  Haerle  v.  Kreihn,  65 
Mo.  "202  ;  Steffen  v.  Bauer,  70  Mo.  399  ; 
Fisher  v.  New  Orleans  Anciior  Line,  15 
Mo.  App.  577.  When  the  husband  and 
wife  are  opposite  parties  in  a  suit,  neither 
can  testify  as  to  communications  made  by 
one   to   the  other,     Moore  v.   Moore,  51 


476 


LAW   OF   EVIDENCE. 


[part   III. 


party  are  involved.     And,  therefore,  the  wife  is  not  a  competent 


Mo.  118.  The  marriage  of  a  woman  jilain- 
tilf  pending  her  suit,  will  not  render  her 
incompetent  to  testify.  Cliarles  v.  St.  L. 
&  I.  M.  R.  R.  Co.,  58  Mo.  458.  In  a 
recent  case  in  Missouri,  it  was  held  that 
where  the  wife  sues  for  her  distributive 
share  of  her  husband's  estate  after  his 
death,  and  after  the  creditors  have  been 
paid,  she  is  not  rendered  incompetent  by 
section  4010  of  the  Revised  Statutes,  re- 
lating to  deceased  parties.  Hoyt  v.  Davis, 
SO  ^lo.  App.  313.  If  the  wife  be  an  in- 
competent witness,  the  husband  should 
properly  be  excluded  from  testifying.  Har- 
rington V.  Sedalia,  98  Mo.  589.  In  this 
State  (section  4218),  in  criminal  cases  the 
husband  or  wife  of  the  accused  is  competent, 
but  the  relationship  may  be  shoicn  for  the 
purpose  of  affecting  the  credibiliti/  of  the 
witness  ;  neither  the  husband  nor  ivijfe  of  the 
accused  can  be  rei/uired  to  testifij,  but 
either  may,  at  the  option  of  the  defendant, 
testifi  in  his  behalf,  or  on  behalf  of  a  co- 
defendant,  and  is  then  liable  to  cross-exam- 
ination, and  may  be  contradicted  and 
impeached  as  any  other  witness  in  the  case ; 
conjidential  communications  between  them 
are  incompetent  in  criminal  cases,  and 
further  (sec.  4219),  if  the  accused  shall  not 
avail  himself  or  herself  of  the  testimony  of 
the  wife  or  husband,  on  the  trial,  it  shall  not 
be  construed  to  affect  the  innocence  or  guilt 
of  the  accused,  nor  to  raise  any  presumption 
of  guilt,  nor  be  referred  to  by  any  attorney  in 
the  case,  nor  be  considered  by  the  court  or 
jury  before  whom  the  trial  takes  place.  In 
Montana  (Code  of  Civ.  Proc.  sec.  649), 
are  provisions  similar  to  those  of  California. 
In  Nebraska  (Civ.  Code  Proc.  sec.  328, 
cl.  3),  communications  made  by  the  one  to 
the  other  during  the  marriage  are  excluded 
at  all  times;  and  (sec.  331)  neither  can  in 
any  case  be  a  witness  against  the  other,  ex- 
cept in  a  criminal  proceeding  for  a  crime 
committed  by  one  against  the  other ;  but  they 
may  in  all  criminal  prosecutions  be  2vitnpsses 
for  each  other.  Further  (sec.332),  neither  hus- 
band nor  icife  can  be  examined  in  any  case  as 
to  any  communication  made  by  the  one  to  the 
other  xvhile  married,  nor  shall  they,  after  the 
marriage  relation  cease,  be  permitted  to  re- 
veal, iii  testimony,  any  such  communication 
made  while  the  marriage  subsisted.  In  Ne- 
vada (Gen.  Stat.  sec.  3403),  neither  can  be  a 
witness  for  or  against  the  other  without  the 
other's  consent ;  and  neither  can,  irithout  the 
consent  of  the  other,  be  examined  at  any 
time  as  to  communications  made  by  one  to 
the  other  during  the  marriage.  But  this 
exception  does  not  apply  to  an  action  or  pro- 
ceeding bi/  one  against  the  other.  In  Ncnv 
Hampshire  (Pub.  Stat.  ch.  223,  sec.  20), 


husband  and  wife  are  competent  witnesses 
for  or  against  each  other  in  all  cases  civil  or 
criminal,  except  that  neither  shall  be  allowed 
to  testify  as  to  any  statement  or  conversation, 
letter  or  other  communication  made  to  the 
other  or  to  another  person,  or  as  to  any  mat- 
ter ichich  in  the  opinion  of  the  court  would 
be  thought  to  be  a  violation  of  marital  conf- 
dence.  Under  this  statute  it  is  held  that 
the  policy  of  the  statutes  of  New  Hamp- 
shire on  this  point  is  to  make  the  husband 
and  wife  competent  witnesses  for  or  against 
each  other,  just  as  though  they  were 
strangers,  except  in  the  single  case  where 
the  court  can  see  it  would  lead  to  the  vio- 
lation of  marital  confidence.  They  are  to 
be  allowed,  but  not  compelled,  to  testify 
for  or  against  each  other  in  all  cases,  just 
like  persons  in  no  way  related  to  each 
other,  with  this  single  exceiition  ;  and 
this  marital  confidence  nuist  be  something 
confided  by  one  to  the  other  simply  and 
specially  as  husband  and  wife,  and  not 
what  would  be  communicated  to  any  other 
person  in  the  same  circumstances.  Clem- 
ents V.  Jtlarston,  52  N.  H.  38.  In  New 
Jersey  (Rev.  vol.  1,  p.  378,  sec.  5), 
the  husband  or  wife  of  parties,  or  of  any 
person  interested  ui  the  suit,  is  a  competent 
and  compellable  witness  on  behalf  of  any 
party  to  the  proceeding ;  but  no  husband  or 
wife  is  competent  or  compellable  for  or 
against  the  other  in  any  criminal  proceeding, 
or  in  am/  proceeding  for  divorce  on  account 
of  adultery,  except  to  prove  the  fact  of  mar- 
riage ;  and,  another  section  (p.  1313,  sec.  1) 
gives  the  right  to  either  in  a  criminal  action 
to  prove  the  fact  of  marriage.  Later  enact- 
ments also  provide  (Supp.  Rev.  p.  287, 
title  Evidence)  that  the  above  recited  stat- 
utes shall  be  construed  to  authorize  husband 
or  wife  in  any  criminal  action  against  either, 
to  give  evidence  to  prove  the  fact  of  mar- 
riage ;  and  still  further,  that  upon  trial  for 
murder  or  manslaughter,  the  husband  or  wife 
of  the  prisoner  shall  be  admitted  to  testify 
as  a  witness  upon  such  trial,  if  he  or  she 
volunteers  on  behalf  of  the  prisoner  ;  and  that 
upon  any  criminal  trial  the  tcife  or  husband 
of  the  person  indicted  or  accused  shall  be  ad- 
mitted to  testify  in  behalf  of  the  prisoner,  if 
produced  as  a  witness  by  the  person  ac- 
cused. In  this  State,  it  is  also  enacted 
(Su]>p.  Rev.  title  Evid.  6)  that  any  hus- 
band or  wife  may  give  evidence  on  their  own 
behalf,  or  for  or  against  each  other  in  any 
proceeding  for  divorce  on  account  of  adultery. 
Under  these  statutes  previous  to  the 
changes  introduced  by  the  supplementary 
statutes,  above  stated,  it  was  held  that  in 
equity  this  statute  did  not  protect  the 
wife  "from    making   a  discovery  relating 


CHAP.    II.] 


COMPETENCY   OF   WITNESSES. 


477 


witness  against  any  co-defendant  tried  with  her  husband,  if  the 


solely  to  her  own  conduct  and  affecting 
only  her  own  interests.  Metier  v.  Metier, 
18  N.  J.  Eq.  270.  It  was  also  held  that 
the  wife  in  a  suit  between  others  may  not 
testify  to  any  matter  for  which  her  hus- 
band mi<^ht  be  indicted.  Stewart  v.  John- 
son, 18  N.  J.  L.  88.  Nor  can  a  husbaml, 
in  a  collateral  proceedinj^,  testify  dii'ectly 
as  to  his  wife  being  guilty  of  an  indictable 
otteuce.  State  v.  Wilson,  31  N.  J.  L.  77. 
But  if  the  matter  is  not  indictable,  the 
husband  or  wife  being  witnesses  in  a  case 
to  which  any  other  is  a  party,  may  be 
asked  questions  tending  to  cast  discredit 
upon  the  testimony  of  the  other  who  has 
already  testihed  in  the  same  case.  Ware 
V.  State,  35  N.  J.  L.  553.  Prior  to  the 
passage  of  section  six  of  the  su]>plementary 
acts,  above  stated,  neither  husband  nor 
wife  in  a  suit  for  divorce  for  adftltery  was 
a  competent  witness  to  prove  or  disprove 
the  charge.  Marsh  v.  Marsh,  29  N.  J. 
Eq.  296  ;  Doughty  v.  Doughty,  32  N.  J. 
Eq.  32  ;  Franz  v.  Franz,  32  N.  J.  Eq. 
483.  Under  the  statute  it  was  held  that 
the  wife  is  incompetent  to  testify  to  a 
gift  to  her  from  her  husband.  Schick  v. 
Grote,  42  N.  J.  Eq.  356.  Upon  the  ques- 
tion of  the  testimony  of  the  wife  in  a  suit 
against  the  heirs-at-law  of  the  deceased 
husband,  see  Crimmins  v.  Crimmins,  43 
N.  J.  E(i.  86.  In  New  York  (Fvev.  Stat. 
Code  Civ.  Proc.  sec.  828),  the  husband  or 
wife  of  a  part  if  is  a  competent  witness  ;  but 
(sec.  831)  a  husband  or  wife  is  not  compe- 
tent to  testifii  against  the  other  upon  the  trial 
of  any  proceeding  founded  upon  an  allega- 
tion of  adulter)/,  except  to  prove  the  mar- 
riage or  disprove  the  allegation  of  adnlteri/, 
and  husband  and  wife  shall  not  be  com- 
pelled, without  the  consent  of  the  other,  if 
livinq,  to  disclose  a  confidential  communica- 
tion made  by  one  to  the  other  during  mar- 
riage. In  an  action  for  criminal  conversa- 
tion, the  plaintiff's  wife  is  not  a  competent 
witness  fir  the  plaintiff,  but  she  is  a  compe- 
tent witness  for  the  defendant  as  to  any  mat- 
ter in  controversy,  except  that  she  cannot, 
without  the  plaintiff's  consent,  disclose  any 
confidential  communication  had  or  made  be- 
tween herself  and  the  plaintiff.  And,  further 
(sec.  715),  "Me  husband  or  wife  of  a  per- 
son indicted  or  accused  of  a  crime,  is  in  all 
cases  a  competent  witness  on  the  examination 
or  trial  of  such  person,  but  neither  the  hus- 
band nor  wife  can  be  compelled  to  disclose  a 
confidential  communication  made  by  one  to 
the  other  during  marriage.  Under  this  sec- 
tion of  the  Code,  the  husband  or  wife  is 
competent  in  his  or  her  own  behalf,  in  an 
action  where  they  are  co-plaintitfs  or  co- 
defendants.   Bingham  v.  Disbrow,  5  Trans. 


A])p.  198.  See  also  De  Meli  v.  De  Meli, 
120  N.  V.  492  ;   Wilke  v.  People,  53  N.  Y. 

525.  In  North  Carolina  (Code,  sec.  588), 
the  husband  or  wife  of  any  party,  or  (f  any 
person  in  whose  behalf  such  proceeding  is 
brought  or  defended,  are  competent  and  com- 
pellable, but  neither  husband  or  wife  is  com- 
petent or  comjiellable  to  give  evidence  for  or 
against  the  other  in  any  criminal  action  or 
proceeding  except  to  prove  the  fact  of  mar- 
riage in  case  of  bigamy,  or  in  any  action  or 
proceeding  in  consequence  of  adultery,  or  in 
any  action  or  proceeding  for  divorce  on  ac- 
count of  adultery,  except  to  prove  the  act  of 
marriage,  or  in  any  action  or  proceeding  fur 
or  on  account  of  cri niinal  conversation.  No 
husband  or  wife  shall  be  compelled  to  disclose 
any  confidential  communication  made  by  one 
to  the  other  during  their  marriage ;  and  (sec. 
1353)  the  husband  or  wife  of  the  defendant 
in  criminal  cases  are  competent ;  but  the  fail- 
ure of  such  witness  to  he  examined  shall  not 
be  used  to  the  prejudice  of  the  defence.  And 
every  such  person  examined  as  a  witness 
shall  be  subject  to  be  cross-examined  us  other 
witnesses.  The  statute  of  North  Carolina 
does  not  permit  husband  or  wife  to  testify 
as  to  private  conversations.  Norris  v. 
Stewart,  105  N.  C.  455.  In  Ohio  (Rev. 
Stat.  sec.  5241,  cl.  3),  communications  made 
by  one  to  the  other,  or  acts  done  by  either  in 
the  presence  of  the  other  during  coverture, 
are  excluded,  unless  the  communication  was 
made,  or  act  done,  in  the  known  presence  or 
hearing  of  a  third  person  competent  to  be  a 
ivitness,  and  the  rule  is  the  same  if  the  mar- 
ital relation  has  ceased  to  exist.  And  (sec. 
7284)  further,  husband  and  wife  are  in 
criminal  proceedings  competent  witnesses  to 
testify  in  behalf  of  each  other;  but  neither 
husband  nor  wife  can  testify  concerning  acts 
or  communications  as  above  set  forth,  except 
in  cases  of  personal  injury  by  either  the  hus- 
band or  the  wife  to  the  other.  Under  this 
statute,  as  in  most  similar  instances,  a  di- 
vorce is  Iield  not  to  render  competent  the 
testimony  of  the  wife  as  to  matters  occur- 
ring during  the  continuance  of  the  mar- 
riage relation.     Cook  v.  Grange,  18  Ohio, 

526.  Neither  is  the  rule  atTected  by  the 
fact  that  neither  husband  nor  wife  is  inter- 
ested in  the  result  of  the  suit,  whether  the 
husband  or  wife  be  a  party  to  the  action, 
or  only  interested  in  the  event  of  the  same, 
the  policy  of  the  rule  applies.  Bird  v. 
Hueston,  10  Oh.  St.  418.  The  evidence 
that  a  third  person  was  present  at  the  time 
of  the  communications,  should  he  offered 
to  the  court  and  not  to  the  jury,  as  it  af- 
fects the  competency  of  the  evidence.  On 
error  it  will  be  presumed  to  have  been  sat- 
isfactorily proved  to  the  court.     "Wester- 


478 


LAW    OF    EVIDENCE. 


[part  in. 


testimony  concern  the  husband,  though  it  be  not  directly  given 


man  v.  VVesterman,  25  Oh.  St.  500  ;  How- 
ard V.  Blower,  37  Oh.  St.  402.  Outside 
of  the  limitations  set  forth  in  the  statute, 
a  married  woman  is  competent  to  testify  to 
all  matters  within  her  knowledge.  Bean 
V.  Green,  33  Oh.  St.  444.  A  wife  was  not 
a  competent  witness  for  her  husband  in  a 
criminal  juosecution  until  the  passage  of 
the  recent  statute,  but  they  have  always 
been  competent  as  against  each  other  in 
criminal  actions  for  personal  injuries  in- 
flicted by  one  upon  the  other.  Whipji  v. 
State,  34  Oh.  St.  87.  See  Steen  v.  State, 
20  Oh.  St.  333.  As  to  the  presence  of 
third  persons,  either  the  husband  or  wife 
can  be  called  to  testify  as  to  the  known 
presence,  hearing,  or  knowledge  of  a  third 
person.  McCague  v.  ililler,  36  Oh.  St. 
595.  The  competency  of  the  third  person, 
whose  jiresence  renders  the  testimony  ad- 
missible, means  competent  at  the  time  of 
the  act  done,  or  time  of  the  communica- 
tion made,  and  not  at  the  time  of  the  trial 
of  the  case.  Neither  will  the  death  of  the 
third  person  subsequently  render  the  evi- 
dence incompetent.  Sieving  v.  Seidel- 
meyer,  4  Bull.  213.  In  Pennsylvania 
(Laws  of  1887,  ch.  89,  sec.  2,  cl.  b),  neither 
husband  nor  wife  is  competent  or  permitted 
to  testifii  against  each  other,  or  in  support  of 
a  criminal  charge  ofadulteri/  alleged  to  have 
been  committed  bij  or  icith  the  other,  except 
that  in  proceedings  for  desertion  and  main- 
tenance, and  in  any  criminal  proceeding 
against  either  for  bodilg  injury  or  violence 
attempted,  done,  or  threatened  on  the  other, 
each  is  a  competent  witness  against  the  other ; 
but  (cl.  c)  neither  husband  nor  wife  are  com- 
petent or  permitted  to  testify  to  confidential 
communications  made  by  one  to  the  other,  un- 
less this  privilege  be  waived  upon  trial ;  and 
further  (sec.  5,  cl.  c),  neither  husband  nor 
wife  are  competent  or  permitted  to  testify 
against  the  other  in  civil  proceedinqs,  except 
in  proceedings  for  divorce  in  which  personal 
service  of  the  subpcena,  or  of  a  rule  to  take  de- 
positions, has  been  made  upon  an  opposite 
party,  or  in  which  the  opposite  party  appears 
and  defends,  in  which  case  either  may  fully 
testify  against  the  other.  These  sections 
guard  the  interests  of  the  husband  or  wife  as 
well  when  they  are  not  a  party  to  the  suit  in 
question  as  when  they  are.  Thus,  in  the 
case  of  Pleasanton  v.  Nutt,  115  Pa.  St. 
269,  the  wife,  who  was  plaintiff,  was  called 
as  a  witness,  and  under  objection  and 
exception  testified  in  substance  that  her 
husband,  Alexander  W.  Xutt,  purchased 
the  furniture  for  which  the  suit  was  brought, 
and  gave  it  to  her.  The  court  held  that 
she  was  incompetent  to  thus  prove  title  in 


herself,  because  in  so  doing  she  was  testi- 
fying against  the  interest  of  her  husband. 
While  he  was  not  a  party  to  the  record,  he 
was,  nevertheless,  interested  in  the  result, 
in  that  his  wife's  testimony,  to  the  effect 
that  the  furniture  was  not  his  but  hers,  at 
the  time  he  sold  it  to  the  defendant  below, 
tended  to  make  liiin  liable  for  breach  of  his 
implied  warranty  of  title  in  the  sale  of  the 
furniture  as  his  own.  And  it  was  further 
held  in  Burrell  Township  v.  Uncapher, 
117  Pa.  St.  362,  where  the  action  was 
brought  in  the  names  of  the  husband 
and  wife,  but  in  the  right  of  the  wife, 
and  for  the  recovery  of  damages  for  an 
injury  sustained  by  her,  that  the  hus- 
band was  merely  joined  in  his  capacity  as 
husband,  and  to  confonn  to  the  rules  of 
pleading  ;  and  in  such  circumstances,  when 
called  to  testify  against  his  wife,  he  could 
not  be  I'egarded  merel}'  as  a  party  to  the 
record  in  order  to  make  him  competent  as 
a  party  called  for  cross-examination,  but 
is  incompetent  to  deliver  testimony  ad- 
verse to  his  wife  ;  and  the  same  is  true  as 
to  declarations  made  bv  him.  Martin  v. 
Rutt,  127  Pa.  St.  383.  The  case  of  Brock 
V.  Brock,  116  Pa.  St.  113,  holds  that  the 
wife,  even  after  divorce,  is  not  competent  to 
testify  to  a  matter  of  a  confidential  nature 
which  occurred  between  herself  and  her 
husband  during  the  existence  of  their 
marriage  relation.  In  Rhode  Island  (Pub. 
Stat.  ch.  214,  sec.  36),  in  civil  causes, 
except  a  petition  for  divorce,  the  husband  or 
wife  of  either  parly  is  a  competent  witness, 
provided  that  neither  shall  be  permitted  to 
give  any  testimony  tending  to  criminate  the 
1)1  her,  or  to  disclose  any  communication  made 
to  him  or  her  by  the  other  during  their  mar- 
riage ;  and  (sec.  40)  the  husband  or  wife  of 
any  respondent  in  any  criminal  prosecution 
offering  himself  or  herself  as  a  icitness,  can- 
not be  excluded  from  testifying  therein  because 
he  or  she  is  the  husband  or  wife  of  such  re- 
spondent. In  South  Carolina  (Code  Civ. 
Proc.  sec.  400),  the  husband  or  wife  of  any 
party  to  a  proceeding,  nominal  or  real,  is  com- 
petent and  compellable  to  give  evidence  the 
same  as  any  other  witness  on  behalf  of  any 
parti/;  but  no  husband  or  wife  can  be  com- 
pelled to  disclose  any  confidential  communica- 
tion made  by  one  to  the  other  during  their 
marriage.  In  Tennessee  (Code,  .sec.  4563), 
neither  husband  nor  wife  are  competent  to  tes- 
tify as  to  any  matter  that  occurred  between 
them,  by  virtue  of  or  in  consequence  of  the 
marital  relation. 

In  Texas  (Rev.  Stat.  art.  2247),  the 
husband  or  wife  of  a  party  to  a  suit  or  pro- 
ceeding, or  who  has  an  interest  in  the  issue  to  be 
tried,  is  not  incompetent  to  testify  therein,  ex- 


CHAP.    II.] 


COMPETENCY    OF   WITNESSES. 


479 


against  him.  ^  Nor  is  she  a  witness  for  a  co-defendant,  if  her 
testimony,  as  in  the  case  of  a  conspiracy,^  would  tend  directly  to 
her  husband's  acquittal ;  nor  where,  as  in  the  case  of  an  assault,^ 
the  interests  of  all  the  defendants  are  inseparable ;  nor  in  any  suit 

1  Hale,  P.  C,  301  ;  Dalt.  Just.  c.  Ill  ;  Kex  v.  Hood,  1  Mood.  Or.  Cas.  281  ;  Rex 
V.  Smith,  Id.  289. 

2  Rex  V.  Locker,  5  Esp.  107,  per  Ld.  P>llenboronj;h,  who  said  it  was  a  clear  rule  of 
the  law  of  England.  State  v.  Burlingham,  3  Shei)l.  104.  But  where  several  are  jointly 
indicted  for  an  oH'ence,  which  nught  have  been  committed  either  by  one  or  more,  and 
they  are  tried  separately,  it  has  been  held  that  tlie  wife  of  one  is  a  competent  witness 
for  the  others.  Commonwealth  i'.  Manson,  2  Ashm.  31  ;  State  v.  Worthing,  1  Keding- 
ton,  62  ;  infra,  §  363,  n.     But  see  Pullen  v.  People,  1  Doug.  (Mich.)  48. 

3  Rex  V.  Frederick,  2  Stra.  1095. 


cept  as  to  confidential  communications  between 
such  husband  and  ivife ;  and  (Crim.  Code, 
art.  734)  in  criminal  cases  neither  husband 
nor  xcife  can  in  am/  case  testifi/  as  to  any 
communications  made  by  one  to  the  other  while 
married,  nor  can  they  after  the  marriage  re- 
lation ceases,  be  made  witnesses  as  to  such 
communications  made  while  the  marriage  re- 
lation subsisted,  except  in  the  case  where  one 
or  the  other  is  prosecuted  for  an  offence,  and 
the  declaration  or  communication  made  by  the 
wife  to  the  husband,  or  by  the  husband  to  the 
wife,  goes  to  extenuate  or  justify  the  offence 
for  which  either  is  on  trial ;  further  (art. 
735),  the  husband  or  wife  may  in  all  criminal 
actions  be  icitnesses  for  each  other,  but  they 
shall  in  no  case  testify  against  each  other,  ex- 
cept iu  a  criminal  prosecution  for  an  offence 
committed  by  one  against  the  other,  Overton  v. 
State,  43  Tex.  616.  In  Vermont  (Rev. 
Laws,  sec.  1005),  no  married  woman  is  dis- 
qualified as  a  witness  in  a  civil  suit  or  pro- 
ceeding at  law,  or  in  equity  prosecuted  in 
the  name  of  or  against  her  husband,  whether 
joined  or  not  with  her  husband  as  a  party  in 
these  cases ;  in  actions  upon  policies  of  in- 
surance of  property,  so  far  as  relates  to  the 
amount  and  value  of  the  property  alleged  to 
be  injured  or  destroyed;  in  actions  against 
carriers,  so  far  as  relates  to  the  loss  of  prop- 
erty and  the  amount  and  value  thereof,  and 
to  personal  injury  alleged  to  have  been  sus- 
tained by  the  wife  in  consequence  of  the  wrong- 
ful act  or  neglect  of  such  carriers;  iti  matters 
of  business  transactions  ichere  the  transaction 
ivas  had  and  conducted  by  such  married  wo- 
man as  the  agent  of  her  husband;  in  actions 
where  both  husband  and  wife  are  properly 
joined,  either  as  plaintiffs  or  defendants. 
Bat  this  section  does  not  authorize  or  permit 
a  married  icoman  to  testify  to  admissions  or 
conversations  of  her  husband  made  to  herself 
or  to  third  persons.  Further  (sec.  1006),  the 
libellant  and  libcllee  shall  be  competent  wit- 
nesses in  trials  on  libels  for  divorce,  ichere  the 
cause  alleged  in  the  libel  is  intolerable  severiti/ 
or  wilful   desertion.     And  (sec.  3578)    in 


actions  in  court  against  a  Savings  Institu- 
tion by  a  husband  to  recover  for  moneys  de- 
posited by  his  wife  in  her  name,  or  as  her 
money,  the  wife  mai/  be  a  witness  as  if  she 
were  an  unmarried  woman.  The  statute 
does  not  apply  to  cases  where  the  wife  acts 
merely  as  agent  of  the  husband.  Martin  v. 
Hurlburt,  60  Vt.  367.  And  further  (Laws, 
1886,  No.  46,  p.  38),  in  a  suit  for  goods, 
board,  or  anything  else  furnished  to  a  wife  for 
her  maintenance  brought  against  her  husband, 
the  wife  may  be  a  witness.  In  Virginia 
(Voorhees  Rev.  Civ.  Code,  sec.  2281),  the 
husband  cannot  be  a  witness  for  or  against 
his  wife,  nor  the  wife  for  or  against  her  hus- 
band;  but  in  any  case  where  the  husband  or 
wife  may  be  joined  as  plaintiffs  or  defen- 
dants, and  hare  a  separate  interest,  they  are 
competent  ivitnesses  for  or  against  their  sepa- 
rate interest  therein.  In  Frank  v.  Lilienfeld, 
33  Gratt.  377,  the  wife  deposed  neither  for 
nor  against  her  husband,  but  wholly  in  her 
own  behalf,  in  a  suit  in  which  the  husband, 
it  is  true,  was  a  party,  but  in  which  the 
sole  object  was  to  reach  property  conceded  to 
be  her  separate  estate,  and  it  was  held  that 
her  testimony  was  admissible  ;  and  a  simi- 
lar decision  was  made  in  Farlev  v.  Tillar, 
81  Va.  275.  In  West  Virginia  "(Code,  eh. 
130,  sec.  22),  the  husband  or  ivife  of  any 
party,  nominal  or  real,  in  a  civil  case  is  com 
petent  to  give  evidence  the  same  as  other  wie- 
nesses,  except  that  no  husband  or  ivife  shall 
disclose  any  confidential  communication  made 
by  one  to  the  other  during  their  marriage  ;  and 
(ch.  152,  sec.  19)  in  criminal  cases  the  wife 
or  husband  of  the  accused  has  the  right,  at 
the  request  of  the  accused,  but  not  otherwise, 
to  testify  on  the  accused's  trial.  In  Wiscon- 
sin (Annot.  Stat.  sec.  7072),  a  husband  or 
wife  is  not  allowed  to  disclose  a  confidential 
communication  made  by  one  to  the  other  dur- 
ing their  marriage,  without  the  consent  of  the 
other  ;  in  an  action  for  criminal  conversation, 
plaintiff's  wife  is  a  competent  witness  for  de- 
fendant, as  to  any  matter  in  controversy, 
except  as  aforesaid. 


480  LAW   OP    EVIDENCE.  [PART   III. 

in  which  the  rights  of  her  husband,  though  not  a  party,  would  be 
conchided  by  any  verdict  therein ;  nor  may  she,  in  a  suit  between 
others,  testify  to  any  matter  for  which,  if  true,  her  husband  may 
be  indicted.'*  Yet  where  the  grounds  of  defence  arc  several  and 
distinct,  and  in  no  manner  dependent  on  each  other,  no  reason  is 
perceived  why  the  wife  of  one  defendant  should  not  be  admitted 
as  a  witness  for  another.^ 

§  336,  Immaterial  when  the  relation  began.  It  makes  no  dif- 
ference at  what  time  the  relation  of  husband  and  wife  commenced  ; 
the  principle  of  exclusion  being  applied  in  its  full  extent  wher- 
ever the  interests  of  either  of  them  are  directly  concerned.  Thus, 
where  the  defendant  married  one  of  the  plaintiff's  witnesses,  after 
she  was  actually  summoned  to  testify  in  the  suit,  she  was  held 
incompetent  to  give  evidence.^  Nor  is  there  any  difference  in 
principle  between  the  admissibility  of  the  husband  and  that  of 
the  wife,  where  the  other  is  a  party. ^  And  when,  in  any  case, 
they  are  admissible  against  each  other,  they  are  also  admissible 
for  each  other.  ^ 

§  337.  Or  terminated.  Neither  is  it  material  that  this  relation 
no  longer  exists.  The  great  object  of  the  rule  is  to  secure  domestic 
happiness  by  placing  the  protecting  seal  of  the  law  upon  all  con- 
fidential communications  between  husband  and  wife ;  and  what- 
ever has  come  to  the  knowledge  of  either  by  means  of  the  hallowed 
confidence  which  that  relation  inspires,  cannot  be  afterwards 
divulged  in  testimony,  even  though  the  other  party  be  no  longer 
living.*  (a)  And  even  where  a  wife,  who  had  been  divorced  by 
act  of  Parliament,  and  had  married  another  person,  was  offered 

*  Den  d.  Stewart  v.  Johnson,  3  Harrison,  88. 

6  Phil.  &  Am.  on  Evid.  160,  n.  (2)  ;  1  Phil.  Evid.  75,  n.  (1).  But  where  the  wife 
of  one  prisoner  was  called  to  prove  an  alibi  in  favor  of  another  jointly  indicted,  she 
was  held  incompetent,  on  the  ground  that  her  evidence  went  to  weaken  that  of  the 
witness  against  her  husband,  bv  showing  that  that  witness  was  mistaken  in  a  material 
fact.  Rex  v.  Smith,  1  Mood.  Cr.  Cas.  289.  If  the  conviction  of  a  prisoner,  against 
whom  she  is  called,  will  strengthen  tlie  hope  of  pardon  for  her  husband,  who  is  already 
convicted,  this  goes  only  to  her  credibility.  Ptex  v.  Rudd,  1  Leach,  115,  131._  Where 
one  of  two  persons,  separately  indicted  for  the  same  larceny,  has  been  convicted,  his 
wife  is  a  competent  witness  against  the  other.     Reg.  v.  Williams,  8  C.  &  P.  284. 

1  Pedley  t;.  Wellesley,  3  G.  &  P.  558.  This  case  forms  an  exception  to  the  general 
rule,  that  neither  a  witness  nor  a  party  can,  by  his  own  act,  deprive  the  other  party  of 
a  right  to  the  testimony  of  the  witness.     See  supra,  §  167  ;  infra,  §  418. 

2  Rex  V.  Serjeant,  1  Ry.  &  M.  352.  In  this  case,  the  husband  was,  on  this  ground, 
held  incompetent  as  a  witness  against  the  wife,  upon  an  indictment  against  her  and 
others  for  conspiracy,  in  procuring  him  to  marry  her. 

8  Rex  V.  Serjeant,  1  Ry.  &  M.  352. 

*  Stein  V.  Bowman,  13  Peters,  209. 

(a)  Patton  v.  Wilson,  2  Lea  (Tenn.),  An.  1317,  it  was  held  that  a  husband  is  a 
101  ;  Low's  Estate,  Myrick's  Prob.  (Cal.)  competent  witness,  after  his  wife's  death, 
143.     In  the  succession  of  Ames,  33  La.     concerning  a  claim  against  her  estate. 


CHAP.    IT.]  COMPETENCY    OF   WITNESSES.  481 

as  a  witness  by  the  plaintiff,  to  prove  a  contract  against  her  for- 
mer husband,  Lord  Alvanley  held  her  clearly  incompetent ;  add- 
ing, with  his  characteristic  energy,  "  it  never  shall  be  endured 
that  the  confidence,  which  the  law  has  created  while  the  parties 
remained  in  the  most  intimate  of  all  relations,  shall  be  broken 
whenever,  by  the  misconduct  of  one  party,  the  relation  has  been 
dissolved.* 

§  338.  Exception.  This  rule,  in  its  spirit  and  extent,  is  analo- 
gous to  that  which  excludes  confidential  communications  made 
by  a  client  to  his  attorney,  and  which  has  been  already  consid- 
ered. °  Accordingly,  the  wife,  after  the  death  of  the  husband, 
has  been  held  competent  to  prove  facts  coming  to  her  knoivledge 
from  other  sources,  and  not  by  means  of  her  situation  as  a  wife, 
notwithstanding  they  related  to  the  transactions  of  her  husband.^ 

§  339.  Marriage  must  be  lawful.  This  rule  of  protection  is 
extended  only  to  lawful  marriages,  or  at  least  to  such  as  are  in- 
nocent in  the  eye  of  the  law.  If  the  cohabitation  is  clearly  of 
an  immoral  character,  as,  for  example,  in  the  case  of  a  kept  mis- 
tress, the  parties  are  competent  witnesses  for  and  against  each 
other.  ^  On  the  other  hand,  upon  a  trial  for  polygamy,  the  first 
marriage  being  proved  and  not  controverted,  the  woman,  with 
whom  the  second  marriage  was  had,  is  a  competent  witness ;  for 
the  second  marriage  is  void.^  But  if  the  proof  of  the  first  mar- 
riage were  doubtful,  and  the  fact  were  controverted,  it  is  con- 
ceived that  she  would  not  be  admitted.  ^  It  seems,  however,  that 
a  reputed  or  supposed  wife  may  be  examined,  on  the  voir  dire,  to 

4  Monroe  v.  Tvvistleton,  Peake's  Evid.  App.  Ixxxvii.  [xci.],  expounded  and  con- 
firmed in  Aveson  v.  Lord  Kinnaird,  6  East,  192,  193  ;  per  Ld.  Ellenhorongh,  and  in 
Doker  r.  Hasler,  Ry.  &  M.  198,  per  Best,  C.  J.  ;  Stein  v.  Bowman,  13  Peters,  223. 
In  the  case  of  Beveridge  v.  Minter,  1  C.  &  P.  364,  in  which  the  widow  of  a  deceased 
promisor  was  admitted  by  Abbott,  C.  J.,  as  a  witness  for  the  plaintiff  to  prove  the 
promise,  in  an  action  against  her  husband's  executors,  the  principle  of  the  rule  does 
not  seem  to  have  received  any  consideration  ;  and  the  point  was  not  saved,  the  verdict 
being  for  the  defendants.  See  also  Terry  v.  Belclier,  1  Bailey,  568,  that  the  rule  ex- 
cludes the  testimonv  of  a  husband  or  wife  separated  from  each  other,  under  articles. 
See  further,  supm,  §  254;  State  u.  Jolly,  3  Dev.  and  Bat.  110  ;  Barnes  v.  Camack,  1 
Barb.  392. 

5  Supra,  §§  240,  243,  244,  338. 

6  Cotfin  V.  Jones,  13  Pick.  445  ;  William  v.  Baldwin,  7  Vt.  506 ;  Cornell  v.  Van- 
artsdalen,  4  Barr,  364  ;  Wells  v.  Tucker,  3  Binn.  366.  And  see  Saunders  v.  Hendrix, 
5  Ala.  224  ;  McGuire  v.  Maloney,  1  B.  Monr.  224. 

1  Batthews  t'.  Galindo,  4  Bing.  610. 

2  Bull.  N.  P.  287. 

3  If  the  fact  of  the  second  marriage  is  in  controversy,  the  same  principle,  it  seems, 
will  exclude  the  second  wife  also.  See  2  Stark.  Evid.  400  ;  Grigg's  Case,  T.  Raym.  1. 
But  it  seems,  that  the  wife,  though  inadmissible  as  a  witness,  may  he  produced  in 
court  for  the  purpose  of  being  identified,  although  the  proof  thus  furnished  may  affix  a 
criminal  charge  upon  the  husband  ;  as,  for  example,  to  show  that  she  was  the  person 
to  whom  lie  was  first  married  ;  or,  who  passed  a  note,  which  he  is  charged  with  having 
stolen.     Alison's  Pr.  p.  463. 

VOL.   I.  —  31 


482  LAW   OF   EVIDENCE.  [PART   III. 

facts  showing  the  invalidity  of  the  marriage.*  Whether  a  woman 
is  admissible  in  favor  of  a  man  with  whom  she  has  cohabited  for 
a  long  time  as  his  wife,  whom  he  has  constantly  represented  and 
acknowledged  as  such,  and  by  whom  he  has  had  children,  has 
been  declared  to  be  at  least  doubtful.^  Lord  Kenyon  rejected 
such  a  witness,  when  offered  by  the  prisoner,  in  a  capital  case 
tried  before  him;''  and  in  a  later  case,  in  v/hich  his  decisions 
were  mentioned  as  entitled  to  be  held  in  respect  and  reverence, 
an  arbitrator  rejected  a  witness  similarly  situated ;  and  the  court, 
abstaining  from  any  opinion  as  to  her  competency,  confirmed  the 
award,  on  the  ground  that  the  law  and  fact  had  both  been  sub- 
mitted to  the  arbitrator.'^  It  would  doubtless  be  incompetent  for 
another  person  to  offer  the  testimony  of  an  acknowledged  wife, 
on  the  ground  that  the  parties  were  never  legally  married,  if  that 
relation  were  always  recognized  and  believed  to  be  lawful  by  the 
parties.  But  where  the  parties  had  lived  together  as  man  and 
wife,  believing  themselves  lawfully  married,  but  had  separated 
on  discovering  that  a  prior  husband,  supposed  to  be  dead,  was 
still  living,  the  woman  was  held  a  competent  witness  against  the 
second  husband,  even  as  to  facts  communicated  to  her  by  him 
during  their  cohabitation.^ 

§  340.  Whether,  upon  consent  of  husband,  -wife  may  testify. 
Whether  the  rule  may  be  relaxed,  so  as  to  admit  the  wife  to 
testify  against  the  husband,  hy  his  consent,  the  authorities  are 
not  agreed.  Lord  Hardwicke  was  of  opinion  that  she  was  not 
admissible,  even  with  the  husband's  consent  ;i  and  this  opinion 
has  been  followed  in  this  country  ;2  apparently  upon  the  ground, 
that  the  interest  of  the  husband  in  preserving  the  confidence  re- 
posed in  her  is  not  the  sole  foundation  of  the  rule,  the  public 

♦  Peat's  Case,  2  Lew.  Cr.  Cas.  288  ;  Wakefield's  Case,  Id.  279. 

s  1  Price,  88,  89,  per  Thompson,  C.  B.  If  a  woman  sue  as  a  feme  sole,  her  husband 
is  not  admissible  as  a  witness  for  the  defendant,  to  prove  her  a  feme  covert,  thereby  to 
nonsuit  her.  Bentley  v.  Cooke,  Tr.  24  Geo.  III.  B.  R.,  cited  2  T.  R.  265,  269  ;  s.  c. 
3  Doug.  422. 

^  Anon.,  cited  by  Richards,  B.,  in  1  Price,  83. 

7  Campbell  v.  Twemlow,  1  Price,  81,  88,  90,  91.  Richards,  B.,  observed,  that  he 
should  certainly  have  done  as  the  arbitrator  did.  To  admit  the  witness  in  such  a  case 
would  both  encourage  immorality,  and  enable  the  parties  at  their  pleasure  to  perpe- 
trate fraud,  by  admitting  or  denying  the  marriage,  as  may  suit  their  convenience. 
Hence,  cohabitation  and  acknowledgment,  as  husband  and  wife,  are  held  conclusive 
against  the  parties,  in  all  cases,  except  where  the  fact  or  the  incidents  of  marriage,  such 
as  legitimacy  and  inheritance,  are  directly  in  controversy.  See  also  DivoU  v.  Lead- 
better   4  Pick.  220. 

8  Wells  V.  Fletcher,  5  C.  &  P.  12  ;  Wells  v.  Fisher,  1  M.  &  Rob.  99,  and  n. 

1  Barker  v.  Dixie,  Cas.  temp.  Hardw.  264  ;  Sedgwick  v.  Watkins,  1  Yes.  Jun.  49 ; 
Grigg's  Case,  T.  Kaym.  1. 

'^  Randall's  Case,  5  City  Hall  Rec.  141,  153,  154.  See  also  Colbern's  Case,  1 
Wheeler's  Crini.  Cas.  479. 


CHAP.    II,]  COMPETENCY    OP    WITNESSES.  483 

having  also  an  interest  in  the  preservation  of  domestic  peace, 
which  might  be  disturbed  by  her  testimony,  notwithstanding  his 
consent.  The  very  great  temptation  to  perjury,  in  such  case,  is 
not  to  be  overlooked.  ^  But  Lord  Chief  Justice  Best,  in  a  case 
before  him,^  said  he  would  receive  the  evidence  of  the  wife,  if  her 
husband  consented;  apparently  regarding  only  the  interest  of  the 
husband  as  the  ground  of  her  exclusion,  as  he  cited  a  case,  where 
Lord  Mansfield  had  once  permitted  a  plaintiff  to  be  examined 
with  his  own  consent. 

§  341.  Where  not  parties  to  record,  but  directly  interested.  Where 
the  husband  or  wife  is  not  a  party  to  the  record,  but  yet  has  an 
interest  directly  involved  in  the  suit,  and  is  therefore  incompetent 
to  testify,  the  other  also  is  incompetent,  (a)  Thus,  the  wife  of  a 
bankrupt  cannot  be  called  to  prove  the  fact  of  his  bankruptcy.^ 
And  the  husband  cannot  be  a  witness  for  or  against  his  wife,  in 
a  question  touching  her  separate  estate,  even  though  there  are 
other  parties  in  respect  of  whom  he  would  be  competent.  ^  So, 
also,  where  the  one  party,  though  a  competent  witness  in  the 
cause,  is  not  bound  to  answer  a  particular  question,  because  the 
answer  would  directly  and  certainly  expose  him  or  her  to  a  crimi- 
nal prosecution  and  conviction,  the  other,  it  seems,  is  not  obliged 
to  answer  the  same  question.^  The  declarations  of  husband  and 
wife  are  subject  to  the  same  rules  of  exclusion  which  govern  their 
testimony  as  witnesses. 

s  Davis  V.  Dinwoodv,  4  T.  R.  679,  per  Ld.  Kenyon. 
6  Fedley  v.  Wellesley,  3  C.  &  V.  558. 

1  Ex  parte  James,  1  P.  Wnis.  610,  611.  But  she  is  made  competent  by  statute,  to 
make  discovery  of  his  estate.     6  Geo.  IV.  c.  16,  §  37. 

2  1  Burr.  424,  per  Ld.  Mansfield  ;  Davis  v.  Dinwoody,  4  T.  R.  678 ;  Snyder  r. 
Snyder,  6  Binu.  483  ;  Langley  v.  Fisher,  5  Beav.  443.  But  where  the  interest  is  con- 
tingent and  uncertain,  he  is  admissible.  Pdchardson  v.  Learned,  10  Pick.  261.  See 
further,  Hatfield  v.  Thorp,  5  B.  &  Aid.  589  ;  Cornish  v.  Pugh,  8  D.  &  R.  65  ;  12  Vin. 
Abr.  Evidence,  B.  If  an  attesting  witness  to  a  will  afterwards  marries  a  female  lega- 
tee, the  legacy  not  being  given  to  her  separate  use,  he  is  inadmissible  to  prove  the  will. 
Mackenzie  v.  Yeo,  2  Curt.  509.  The  wile  of  an  executor  is  also  incompetent.  Young 
V.  Richards,  Id.  371.  But  where  the  statute  declares  the  legacy  void  which  is  given 
to  an  attesting  witness  of  a  will,  it  has  been  held,  that,  if  the  husband  is  a  legatee  and 
the  wife  is  a  witness,  the  legacy  is  void,  and  the  wife  is  admissible.  Winslow  v.  Kim- 
ball, 12  Shepl.  493. 

3  See  Phil.  &  Am.  on  Evid.  168  ;  Den  v.  Johnson,  3  Harr.  87. 

1  Alban  v.  Pritchctt,  6  T.  R.  680  ;  Denn  v.  White,  7  T.  R.  112  ;  Kelly  v.  Small, 
2  Esp.  716  ;  Bull.  N.  P.  28  ;  Winsmore  v.  Greenbank,  Willes,  577.  Whether  where 
the  husband  and  wife  are  jointly  indicted  for  a  joint  offence,  or  are  otherwise  joint  par- 
ties, their  declarations  are  mutually  receivable  against  each  other,  is  still  questioned  ; 
the  general  rule,  as  to  persons  jointly  concerned,  being  in  favor  of  their  admissibility, 
and  the  policy  of  the  law  of  husband  and  wife  being  against  it.     See  Commonwealth 

(a)  Labaree  v.  Wood,  54  A^'t.  452.  So,  transaction,  or  the  action  is  against  an 
if  the  husband  is  incompetent  as  a  witness  e.i:ecutor,  the  wife  is  also  incompetent, 
because  he  is  the  surviving  party  to  some     Berry  v.  Stevens,  69  Me.  290. 


484  LAW   OP    EVIDENCE.  [PART    III. 

§  342.  May  testify  in  collateral  proceedings.  But  though  the 
husband  and  wife  arc  not  admissible  as  witnesses  against  each 
other,  where  either  is  directly  interested  in  the  event  of  the  pro- 
ceeding, whether  civil  or  criminal ;  yet,  in  collateral  proceedings, 
not  immediately  affecting  their  mutual  interests,  their  evidence  is 
receivable,  notwithstanding  it  may  tend  to  criininate,  or  may  con- 
tradict the  other,  or  may  subject  the  other  to  a  legal  demand.  ^  (a) 
Thus,  where,  in  a  question  upon  a  female  pauper's  settlement, 
a  man  testified  that  he  was  married  to  the  pauper  upon  a  certain 
day,  and  another  woman,  being  called  to  prove  her  own  marriage 
with  the  same  man  on  a  previous  day,  was  objected  to  as  incom- 
petent, she  was  held  clearly  admissible  for  that  purpose;  for 
though,  if  the  testimony  of  both  was  true,  the  husband  was  charge- 
able with  the  crime  of  bigamy,  yet  neither  the  evidence,  nor  the 
record  in  the  present  case,  could  be  received  in  evidence  against 
him  upon  that  charge,  it  being  res  inter  alios  acta,  and  neither  the 
husband  nor  the  wife  having  any  interest  in  the  decision.^     So, 

V.  Robbins,  3  Pick.  63  ;  Commonwealth  v.  Briggs,  5  Pick.  429  ;  Evans  v.  Smith,  5 
Monroe,  363,  364  ;  Turner  v.  Coe,  5  Conn.  93.  The  declarations  of  the  wife,  however, 
are  admissible  for  or  against  the  husband,  wherever  they  constitute  part  of  the  res 
gestae  which  are  material  to  be  proved  ;  as,  where  he  obtained  insurance  on  her  life  as 
a  person  in  health,  she  being  in  fact  diseased,  Aveson  v.  Lord  Kinnaird,  6  East,  188  ; 
or,  in  an  action  by  him  against  another  for  beating  her,  Thompson  v.  Freeman,  Skin. 
402  ,  or,  for  enticing  her  away,  Gilchrist  v.  Bale,  8  Watts,  355  ;  or,  in  a  action  against 
him  for  her  board,  he  having  turned  her  out  of  doors,  Walton  v.  Green,  1  C.  &  P.  621. 
So,  where  she  acted  as  his  agent,  siipra,  §  334,  n.  ;  Thomas  v.  Hargrave,  Wright,  595. 
But  her  declarations  made  after  marriage,  in  respect  to  a  debt  previously  due  by  her, 
are  not  admissible  for  the  cieilitor,  in  an  action  against  the  husband  and  wife,  for  the 
recovery  of  that  debt.     Brown  v.  Laaelle,  6  Blackf.  147. 

1  Fitch  V.  Hill,  11  Mass.  286  ;  Baring  v.  Reeder,  1  Hen.  &  Mun.  154,  168,  per 
Roane,  J.  In  Griffin  v.  Brown,  2  Pick.  308,  speaking  of  the  cases  cited  to  this  point, 
Parker,  C.  J.,  said  :  "  Thev  establish  this  principle,  that  the  wife  may  be  a  witness  to 
excuse  a  party  sued  for  a  supposed  liability,  although  the  eftect  of  her  testimony  is  to 
charge  her  husband  upon  the  same  debt,  in  an  action  afterwards  to  be  brought  against 
hira.°  And  the  reason  is,  that  the  verdict  in  the  action,  in  which  she  testifies,  cannot 
be  used  in  the  action  against  her  husband  ;  so  that,  although  her  testimony  goes  to 
show  that  he  is  chargeable,  yet  he  cannot  he  prejudiced  by  it.  And  it  may  be  observed, 
that,  in  these  very  cases,  the  husband  himself  would  be  a  competent  witness,  if  he  were 
willing  to  testify,  for  his  evidence  would  be  a  confession  against  himself."  Williams 
V.  Johnson,  1  Stra.  504  ;  Vowles  v.  Young,  13  Ves.  144  ;  2  Stark.  Evid.  401.  See 
also  Mr.  Hargrave's  note  [29]  to  Co.  Lit.  6  b. 

2  Rex  V.  Bathwick,  2  B.  &  Ad.  639,  647  ;  s.  p.  Rex  v.  All  Saints,  6  M.  &  S.  194. 
In  this  case,  the  previous  decision  in  Rex  v.  Cliviger,  2  T.  R.  263,  to  the  effect  that  a 
wife  was  in  every  case  incompetent  to  give  evidence,  even  tending  to  criminate  her  hus- 
band, was  considered  and  restricted  ;  Lord  Ellenborough  remarking,  that  the  rule  was 
there  laid  down  "somewhat  too  largely."  In  Rex  v.  Bathwick,  it  was  held  to  be 
"undoubtedly  true  in  the  case  of  a  direct  charge  and  proceeding  against  him  for  any 
offence,"  but  was  denied  in  its  application  to  collateral  matters.  But  on  the  trial  of  a 
man  for  the  crime  of  adultery,  the  husband  of  the  woman  with  whom  the  crime  was 
alleged  to  have  been  committed  has  been  held  not  to  be  admissible  as  a  witnessfor  the 
prosecution,  as  his  testimony  would  go  directly  to  charge  the  crime  upon  his  wife. 
State  V.  Welch,  13  Shepl.  30. 

(a)  See  Com.  v.  Reid,  1  Leg.  Gaz.  Rep.  182,  for  a  very  full  discussion  of  the  cases 
on  this  point. 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  485 

where  the  action  was  by  the  indorsee  of  a  bill  of  exchange  against 
the  acceptor,  and  the  defence  was,  that  it  had  been  fraudulently 
altered  by  the  drawer,  after  the  acceptance ;  the  wife  of  the  drawer 
was  held  a  competent  witness  to  prove  the  alteration.'^ 

§  343.  Exceptions  to  the  rule  of  exclusion.  To  this  general 
rule,  excluding  the  husband  and  wife  as  witnesses,  there  are  some 
exceptions;  which  arc  allowed  from  the  necessity  of  the  case, 
partly  for  the  protection  of  the  wife  in  her  life  and  liberty,  and 
partly  for  the  sake  of  public  justice.  But  the  necessity  which 
calls  for  this  exception  for  the  wife's  security  is  described  to 
mean,  "not  a  general  necessity,  as  where  no  other  witness  can  be 
had,  but  a  particular  necessity,  as  where,  for  instance,  the  wife 
would  otherwise  be  exposed,  without  remedy,  to  personal  injury."  ^ 
Thus,  a  woman  is  a  competent  witness  against  a  man  indicted  for 
forcible  abduction  and  marriage,  if  the  force  were  continuing  upon 
her  until  the  marriage ;  of  which  fact  she  is  also  a  competent  wit- 
ness ;  and  this,  by  the  weight  of  the  authorities,  notwithstanding 
her  subsequent  assent  and  voluntary  cohabitation ;  for  otherwise, 
the  offender  would  take  advantage  of  his  wrong. ^  So,  she  is  a 
competent  witness  against  him  on  an  indictment  for  a  rape,  com- 
mitted on  her  own  person ;  ^  or,  for  an  assault  and  battery  upon 
her;^  or,  for  maliciously  shooting  her.^  She  may  also  exhibit 
articles  of  the  peace  against  him ;  in  which  case  her  affidavit  shall 
not  be  allowed  to  be  controlled  and  overthrown  by  his  own.^  In- 
deed, Mr.  East  considered  it  to  be  settled,  that  "  in  all  cases  of 
personal  injuries  committed  by  the  husband  or  wife  against  each 
other,  the   injured  party  is  an  admissible  witness  against  the 


3  Henman  v.  Dickinson,  5  Bing.  183. 

^  Bentley  v.  Cooke,  3  Doug.  422,  per  Ld.  Mansfield.  In  Sedgwick  v.  Watkins,  1 
Ves.  49,  Lord  Thurlow  spoke  of  this  necessity  as  extending  only  to  security  of  the 
peace,  and  not  to  an  indictment. 

2  1  East's  P.  C.  454  ;  Brown's  Case,  1  Ventr.  243  ;  1  Russ.  on  Crimes,  572  ;  Wake- 
field's Case,  2  Levvin,  Cr.  Cas.  1,  20,  279.  See  also  Reg.  v.  Yore,  1  Jebb  &  Symes,  563, 
572  ;  Perry's  Case,  cited  in  McNally's  Evid.  1881  ;  Hex  v.  Serjeant,  Ry.  &  M.  352  ; 
1  Hawk.  P.  C.  c.  41,  §  13  ;  2  Russ.  on  Crimes,  605,  606.  This  case  may  be  considered 
anomalous  ;  for  she  can  hardly  be  said  to  be  his  wife,  the  marriage  contract  having 
been  obtained  by  force.  1  Bl.  Comm.  443;  McNally's  Evid.  179,  180;  3  Chitty's 
Crim.  Law,  817,  n.  {y) ;  Roscoe's  Crim.  Evid.  115. 

3  Lord  Audley's  Case,  3  Howell's  St.  Tr.  402,  413 ;  Hutton,  115,  116  ;  Bull.  N.  P. 
287. 

*  Lady  Lawley's  Case,  Bull.  N.  P.  287 ;  Rex  v.  Azire,  1  Stra.  633  ;  Soule's  Case,  5 
Greenl.  407  ;  State  v.  Davis,  3  Brevard,  3. 

5  Whitehouse's  Case,  cited  2  Russ.  on  Crimes,  606. 

6  Rex  V.  Dolierty,  13  East,  171  ;  Lord  Vane's  Case,  Id.  n.  a ;  2  Stra.  1202  ;  Rex 
V.  Earl  Ferrers,  1  Burr.  635.  Her  affidavit  is  also  admissible,  on  an  application  for 
an  information  against  him  for  an  attempt  to  take  her  by  force,  contrary  to  aiticles  of 
separation,  Lady  Lawley's  Case,  Bull.  N.  P.  287  ;  or,  in  a  habeas  corpus  sued  out  by 
him  for  the  same  object,  Rex  v.  Mead,  1  Burr.  542. 


486  LAW    OP    EVIDENCE.  [PART    III. 

other.""  But  Mr.  Justice  Holroyd  thought  that  the  wife  could 
only  be  admitted  to  prove  facts,  which  could  not  be  proved  by  any 
other  witness.^  (a) 

§  344.  Secret  facts.  The  wife  has  also,  on  the  same  ground  of 
necessity,  been  sometimes  admitted  as  a  witness  to  testify  to 
secret  facts  which  no  one  but  herself  could  know.  Thus,  upon 
an  appeal  against  an  order  of  filiation,  in  the  case  of  a  married 
woman,  she  was  held  a  competent  witness  to  prove  her  criminal 
connection  with  the  defendant,  though  her  husband  was  interested 
in  the  event  ;^  but  for  reasons  of  public  decency  and  morality,  she 
cannot  be  allowed  to  say,  after  marriage,  that  she  had  no  con- 
nection with  her  husband,  and  that  therefore  her  offspring  is 
spurious.  ^^ 

§  345.  High  treason.  In  cases  of  high  treason,  the  question 
whether  the  wife  is  admissible  as  a  witness  against  her  husband 
has  been  much  discussed,  and  opinions  of  great  weight  have  been 
given  on  both  sides.  The  affirmative  of  the  question  is  main- 
tained,^ on  the  ground  of  the  extreme  necessity  of  the  case,  and 
the  nature  of  the  offence,  tending  as  it  does  to  the  destruction  of 
many  lives,  the  supervision  of  government,  and  the  sacrifice  of 
social  happiness.  For  the  same  reasons,  also,  it  is  said  that,  if 
the  wife  should  commit  this  crime,  no  plea  of  coverture  shall 
excuse  her;  no  presumption  of  the  husband's  coercion  shall  ex- 
tenuate her  guilt. 2  But,  on  the  other  hand,  it  is  argued,  that,  as 
she  is  not  bound  to  discover  her  husband's  treason,^  by  parity  of 
reason  she  is  not  compellable  to  testify  against  him.*  The  latter 
is  deemed,  by  the  later  text-writers,  to  be  the  better  opinion.^ 

^  1  East's  P.  C.  455.  In  Wakefield's  Case,  2  Lewin,  Cr.  Cas.  287,  Hullock,  B., 
expressed  himself  to  the  same  effect,  speaking  of  the  admissibility  of  the  wife  only. 
2  Hawk.  P.  C.  c.  46,  §  77  ;  People,  ex  rel.  Oidronaux  v.  Chegaray,  18  Wend.  642. 

*  In  Rex  V.  Jagger,  cited  2  Russ.  on  Crimes,  606. 

9  Rex  V.  Reading,  Cas.  temp.  Hardw.  79,  82  ;  Rex  v.  Luffe,  8  East,  193  ;  Common- 
wealth V.  Shepherd,  6  Binn.  283  ;  State  v.  Pettaway,  3  Hawks,  623.  So,  after  divorce 
a  vinculo,  the  wife  may  be  a  witness  for  her  late  husband,  in  an  action  brought  by  him 
against  a  third  person,  for  criminal  conversation  with  her  during  the  marriage.  Ratcliff 
V.  Wales,  1  Hill  (N.  Y.),  63  ;  Dickerman  v.  Graves,  6  Cash.  308.  So,  it  has  been  held, 
that,  on  an  indictment  against  him  for  an  assault  and  battery  upon  her,  she  is  a  com- 
petent witness  for  him  to  disprove  the  charge.     State  v.  Neill,  6  Ala.  685. 

I"  Cope  V.  Cope,  1  M.  &  Rob.  269,  274  ;  Goodright  v.  Moss,  Cowp.  594  ;  supra,  §  28. 

1  These  authorities  may  be  said  to  favor  the  affirmative  of  the  question  ;  2  Russ.  on 
Crimes,  607  ;  Bull.  N.  P.  286  ;  1  Gilb.  Evid.  by  Lotit,  252  ;  Marv  Grigg's  Case,  T. 
Raym.  1  ;  2  Stark.  Evid.  404. 

•^  4  Bl.  Comm.  29.  3  i  Brownl.  47. 

<  1  Hales  P.  C.  48,  301  ;  2  Hawk.  P.  C.  c.  46,  §  82  ;  2  Bac.  Ab.  578,  tit.  Evid. 
A.  ]  ;  1  Chitty's  Crim.  Law,  595  ;  McNally's  Evid.  181. 

5  Roscoe's  Crim.  Evid.  114  ;  Phil.  &  Am.  on  Evid.  161 ;  1  Phil.  Evid.  71.  See  also 
2  Stark.  Evid.  404,  n.  (6). 

(a)  The  wife  is  not  a  competent  witness     wrong  her  in  a  judicial  proceeding.     Peo- 
against    the   husband,    in  an    indit^tment     pie  v.  Carpenter,  9  Barb.  (N.  Y.)  580. 
against  him  for  subornation  of  perjury  to 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  487 

§  346.  Dying  declaration.  Upon  the  same  principle  on  which 
the  testimony  of  the  husljand  or  wife  is  sometimes  admitted,  as 
well  as  for  some  other  reasons  already  stated,^  the  dying  declara- 
tions of  either  are  admissible,  where  the  other  party  is  charged 
with  the  murder  of  the  declarant. ^  (a) 

§  347,  Disqualifying  interest.  The  rule,  excluding  parties  from 
being  witnesses,  applies  to  all  cases  where  the  party  has  any  in- 
terest at  stake  in  the  suit,  although  it  be  only  a  liability  to  costs. 
Such  is  the  case  of  a  prochein  ami,^  a  guardian,  an  executor  or 
administrator,  and  so  also  of  trustees  and  the  officers  of  corpora- 
tions, whether  public  or  private,  wherever  they  are  liable  in  the 
first  instance  for  the  costs,  though  they  may  have  a  remedy  for 
reimbursement  out  of  the  public  or  trust  funds.^ 

§  348.  Parties  may  testify  in  certain  cases.  But  to  the  general 
rule,  in  regard  to  parties,  there  are  some  exceptions  in  which  the 
party's  own  oath  may  be  received  as  competent  testimony.  One 
class  of  these  exceptions,  namely,  that  in  which  the  oath  in  litem 
is  received,  has  long  been  familiar  in  courts  administering  reme- 
dial justice,  according  to  the  course  of  the  Roman  law,  though  in 
the  common-law  tribunals  its  use  has  been  less  frequent  and  more 
restricted.  The  oath  in  litem  is  admitted  in  two  classes  of  cases : 
first,  where  it  has  been  already  proved  that  the  party  against 
whom  it  is  offered  has  been  guilty  of  ^oraQ  fraud  or  other  tortious 
and  univarrantahle  act  of  intermeddling  with  the  complainant's 
goods,  and  no  other  evidence  can  be  had  of  the  amount  of  dam- 
ages ;  and,  secondly,  where,  on  general  grounds  of  public  policy, 

1  Supra,  §  156. 

2  Rex  ('.  Woodcock,  2  Leach,  500  ;  McNally's  Evid.  174  ;  Stoop's  Case,  Addis. 
381  ;  Peojile  v.  Green,  1  Denio,  614. 

In  Massachusetts,  by  force  of  the  statutes  respecting  costs,  a  prochein  ami  is  not 
liable  to  costs,  Crandall  v.  Slaid,  11  Met.  288  ;  and  would  therefore  seem  to  be  a  com- 
petent witness.  And  by  Stat.  1839,  c.  107,  §  2,  an  executor,  administrator,  guardian, 
or  trustee,  though  a  party,  if  liable  only  to  costs,  is  made  competent  to  testify  to  any 
matter  known  to  him,  "before  he  assumed  the  trust  of  his  appointment."  In  Virginia, 
any  such  trustee  is  admissible  as  a  witness,  generally,  provided  some  other  person  shall 
first  stipulate  in  his  stead  for  the  costs  to  which  he  may  be  liable.  Rev.  Stat.  1849, 
c.  176,  §  18. 

«  Hopkins  v.  Neal,  2  Stra.  1026  ;  James  v.  Hatfield,  1  Stra.  548  ;  1  Gilb.  Evid.  by 
Lofft,  ]).  2'25  ;  Hex  i'.  St.  JIary  Magdalen,  Bermondsey,  3  East,  7  ;  Whitmore  v.  Wilks, 
1  Mood.  &  M.  220,  221  ;  Gresley  on  Evid.  242,  243,  244  ;  Bellew  v.  Russel,  1  Ball  & 
Beat.  99  ;  Wolley  v.  Brownhill,'  13  Price,  513,  514,  per  Hullock,  B.  ;  Barret  v.  Gore, 
3  Atk.  401  ;  Fountain  v.  Coke,  1  Mod.  107  ;  Goodtitle  v.  Welford,  1  Doug.  139.  In 
this  country,  where  the  party  to  the  record  is,  in  almost  every  case,  liable  to  costs  in 
the  first  instance,  in  suits  at  law,  he  can  hardly  ever  be  competent  as  a  witness.  Fox 
V.  Whitney,  16  Mass.  118,  121  ;  Sears  v.  Dillingham,  12  Mass.  360.  See  also  Willis 
on  Trustees,  pp.  227-229  ;  Frear  v.  Evertson,  20  Johns.  142 ;  Bellamy  v.  Cains,  3 
Rich.  354  [supra,  §  329  and  n.]. 

(a)  State  v.  Ryan,  30  La.  An.   Pt.   II.  1176. 


488  LAW    OP    EVIDENCE.  [PART    III. 

it  is  deemed  essential  to  the  purposes  of  justice.^  An  example 
of  the  former  class  is  given  in  the  case  of  the  bailiffs,  who,  in  the 
service  of  an  execution,  having  discovered  a  sum  of  money  secretly 
hidden  in  a  wall,  took  it  away  and  embezzled  it,  and  did  great 
spoil  to  the  debtor's  goods:  for  which  they  were  holden  not  only 
to  refund  the  money,  but  to  make  good  such  other  damage  as  the 
plaintiff  would  swear  he  had  sustained. ^  So,  where  a  man  ran 
away  with  a  casket  of  jewels,  he  was  ordered  to  answer  in  equity, 
and  the  injured  party's  oath  was  allowed  as  evidence,  in  odium 
spoliatoris.^  The  rule  is  the  same  at  law.  Thus,  where  a  ship- 
master received  on  board  his  vessel  a  trunk  of  goods,  to  be  car- 
ried to  another  port,  bdt  on  the  passage  he  broke  open  the  trunk 
and  7'ijled  it  of  its  contents,  in  an  action  by  the  owner  of  the 
goods  against  the  shipmaster,  the  plaintiff,  proving  aliunde  the 
delivery  of  the  trunk  and  its  violation,  was  held  competent  as  a 
witness,  on  the  ground  of  necessity,  to  testify  to  the  particular 
contents  of  the  trunk.  ^     And,  on  the  same  principle,  the  bailor, 

1  Tait  on  Evid.  280. 

2  Childrens  v.  Saxby,  1  Vern.  207  ;  s.  c.  1  Eq.  Ca.  Ab.  229. 

•*  Anon.,  cited  per  the  Lord  Keeper,  in  E.  Ind.  Co.  v.  Evans,  1  Vern.  308.  On  the 
same  principle,  in  a  case  of  gross  fraud,  chancery  will  give  costs,  to  be  ascertained  by 
the  party's  own  oath.     Dyer  v.  Tymewell,  2  Vern.  122. 

*  Herman  v.  Drinkwater,  1  Greenl.  27.  See  al.so  Sneider  v.  Geiss,  1  Yeates,  34  ; 
Anon.,  coram  Montague,  B.,  12  Yin.  Abr.  24,  Witnesses,  L  jil.  34.  Scd  vid.  Bingham 
V.  Rogers,  6  Watts  &  Serg.  495.  The  case  of  Herman  v.  Drinkwater  was  cited  and 
tacitly  reaffirmed  by  the  court  in  Gilmore  v.  Bowden,  3  Fairf.  412  ;  the  admissibility  of 
the  party  as  a  witness  being  placed  on  the  ground  of  necessity.  But  it  is  to  be  ob- 
served that,  in  Herman  v.  Drinkwater,  the  defendant  was  guilty  of  gross  fraud,  at 
least,  if  not  of  larceny.  It  was  on  this  ground  of  gross  fraud  and  misconduct  that  the 
rule  in  this  case  was  agreed  to  in  Snow  v.  Eastern  Railroad  Co.,  12  Met.  44  ;  the  court 
denying  its  a[)plication  in  cases  of  necessity  alone,  and  in  the  absence  of  fraud.  There- 
fore, where  an  action  on  the  case  was  brought  by  a  passenger  against  a  railway  com- 
pany, for  the  loss  of  his  trunk  by  their  negligence,  there  being  no  allegation  or  proof 
of  fraud  or  tortious  act,  the  court  held,  that  the  plaintiff  was  not  admissible  as  a  wit- 
ness, to  testify  to  the  contents  of  his  trunk.  Ibid.  As  this  decision,  which  has  been 
reported  since  the  last  edition  of  this  work,  is  at  variance  with  that  of  Clark  v.  Spence, 
cited  in  the  next  note,  the  following  observations  of  the  court  should  be  read  by  the 
student  in  this  connection  :  "The  law  of  evidence  is  not  of  a  fleeting  character;  and 
though  new  cases  are  occurring,  calling  for  its  application,  yet  tlie  law  itself  rests  on 
the  foundation  of  the  ancient  common  law,  one  of  the  fundamental  rules  of  which  is, 
that  no  person  shall  be  a  witness  in  his  own  case.  This  rule  has  existed  for  ages,  with 
very  little  modification,  and  has  yielded  only  where,  from  the  nature  of  the  case,  other 
evidence  was  not  to  be  obtained,  and  there  would  be  a  failure  of  justice  without  the 
oath  of  the  party.  These  are  exceptions  to  the  rule,  and  form  a  rule  of  themselves. 
In  some  cases,  the  admission  of  the  party's  oath  is  in  aid  of  the  trial ;  and  in  others,  it 
bears  directly  on  the  subject  in  controversy.  Thus  the  oath  of  the  party  is  admitted 
in  respect  to  a  lost  deed,  or  other  paper,  preparatory  to  the  offering  of  secondary  evi- 
dence to  prove  its  contents  ;  and  also  for  the  purpose  of  procuring  a  continuance  of  a 
suit,  in  order  to  obtain  testimony  ;  and  for  other  reasons.  So  the  oath  of  a  party  is 
admitted  to  prove  the  truth  of  entries  in  his  book,  of  goods  delivered  in  small  amounts, 
or  of  daily  labor  performed,  when  tlie  parties,  from  their  situation,  have  no  evidence 
but  their  accounts,  and  from  the  nature  of  the  traffic  or  service,  cannot  have,  as  a 
general  thing.  So,  in  complaints  under  the  bastardy  act,  where  the  offence  is  secret, 
but  yet  there  is  full  proof  of  the  fact,  the  oath  of  the  woman  is  admitted  to  charge  the 


CHAP.    II.]  COMPETENXY    OP    WITNESSES.  489 

though  a  plaintiff,  has  been  admitted  a  competent  witness  to  prove 
the  contents  of  a  trunk,   lost  by  the  negligence  of  the  bailee.^ 

individual.  In  cases,  also,  where  robberies  or  larcenies  have  been  committed,  ami 
where  no  other  evidence  exists  but  that  of  tlie  party  robbed  or  plundered,  he  has'  been 
admitted  as  a  witness  to  prove  his  loss  ;  as  it  is  said  the  law  so  abhors  the  act  that  the 
party  injuied  shall  have  an  extraordinary  remedy  in  odium  spolialoris.  Upon  this 
principle,  in  an  action  against  the  hundred,  under  the  statute  of  Winton,  the  person 
robbed  was  admitted  as  a  witness,  to  jirove  his  loss  and  the  amount  of  it.  Bull.  N.  P. 
187  ;  Esp.  on  Penal  Stats.  211  ;  1  Phil.  Ev.  c.  5,  §  2  ;  2  Stark.  Evid.  681  ;  Porter  v. 
Hundred  of  Re^dand,  Peake's  Add.  Cas.  203.  So  in  equity,  where  a  man  ran  away 
with  a  casket  of  jewels,  the  party  injured  was  admitted  as  a  witness.  East  India  Co. 
j;.  Evans,  1  Vern.  308.  A  case  has  also  been  decided  in  Maine,  Herman  v.  Drinkwatei-, 
1  Greenl.  27,  where  the  plaintitf  was  admitted  to  testify.  In  that  case,  a  shipmaster 
received  a  trunk  of  gooiis  in  London,  belonging  to  the  plaintilf,  to  be  carried  in  his 
ship  to  New  Ycnk,  and  on  board  whicli  the  plaintiff  had  engaged  his  passage.  The 
master  sailed,  designedly  leaving  the  plaintilf,  and  proceeded  to  Portland  instead  of 
New  York.  He  there  broke  open  and  plundered  the  trunk.  These  facts  were  found 
aliunde,  and  the  ))laintiff  was  allowed  to  testify  as  to  the  contents  of  the  trunk. 
These  cases  proceed  upon  the  criminal  character  of  the  act,  and  are  limited  in  their 
nature.  The  present  case  does  not  fall  within  the  principle.  Here  was  no  robbery,  no 
tortious  taking  away  by  the  defendants,  no  fraud  connnitted.  It  is  simply  a  case  of 
negligence  on  the  part  of  carriers.  The  case  is  not  brought  within  any  exception  to 
the  common  rule,  and  is  a  case  of  defective  proof  on  the  part  of  the  jjlaintiff,  not  aris- 
ing from  necessity,  but  from  want  of  caution.  To  admit  the  itlaintitf's  oatii,  in  cases 
of  this  nature,  would  lead,  we  think,  to  much  greater  mischiefs,  in  the  temi)tation  to 
frauds  and  perjuries,  than  can  arise  from  excluding  it.  If  the  party  about  to  travel 
places  valuable  articles  in  his  trunk,  he  should  put  them  under  the  special  charge  of 
the  carrier,  with  a  statement  of  what  they  are,  and  of  their  value,  or  provide  other 
evidence,  beforehand,  of  the  articles  taken  by  him.  If  he  omits  to  do  this,  he  then 
takes  the  chance  of  loss,  as  to  the  value  of  the  articles,  and  is  guilty,  in  a  degree,  of 
negligence,  —  the  very  thing  with  which  he  attempts  to  charge  the  carrier.  Occa- 
sional evils  only  have  occurred,  from  such  losses,  through  failure  of  pi-oof ;  the  relation 
of  carriers  to  the  party  being  such  that  the  losses  are  usually  adjusted  by  compromise 
And  there  is  nothing  to  lead  us  to  innovate  on  the  existing  rules  of  evidence.  No  new 
case  is  presented  ;  no  facts  which  have  not  repeatedly  occurred  ;  no  new  combination 
of  circuinstances."     See  12  Met.  46,  47. 

5  Clark  V.  Spence,  10  Watts,  335  ;  Story  on  Bailm.  §  454,  n.  (3d  ed. ).  In  this 
case,  the  doctrine  in  the  text  was  more  fully  expo\inded  by  Rogers,  J.,  in  the  following 
terms  :  "A  party  is  not  competent  to  testify  in  his  own  cause  ;  but,  like  every  other 
general  rule,  this  has  its  exceptions.  Necessity,  either  physical  or  moral,  dispenses 
with  the  ordinary  rules  of  evidence.  In  12  Vin.  24,  pi.  32,  it  is  laid  down,  that  on  a 
trial  at  Bodnyr,  coram  Montague,  B.,  against  a  common  carrier,  a  question  arose  about 
the  things  in  a  box,  and  he  declared  that  this  was  one  of  those  cases  where  the  party 
him.self  might  be  a  witness  ex  necessitate  rei.  For  every  one  did  not  show  what  he  j)ut 
in  his  box.  The  same  principle  is  recognized  in  decisions  which  have  been  had  on  the 
statute  of  Hue-and-Cry  m  England,  where  the  party  robbed  is  admitted  as  a  witness 
ex  necessitate.  Bull.  N.  P.  181.  So,  in  Herman  v.  Drinkwater,  1  Greenl.  27,  a  ship- 
master having  received  a  trunk  of  goods  on  board  his  vessel,  to  be  carried  to  another 
port,  which,  on  the  passage,  he  broke  open  and  rifled  of  its  contents  ;  the  owner  of  the 
goods,  proving  the  delivery  of  the  trunk  and  its  violation,  was  admitted  as  a  witness  in 
an  action  for  the  goods,  against  the  shipmaster,  to  testify  to  the  particular  contents  of 
the  trunk,  there  being  no  other  evidence  of  the  fact  to  be  obtained.  That  a  ])arty  then 
can  be  admitted,  under  certain  circumstances,  to  prove  the  contents  of  a  box  or  trunk, 
must  be  admitted.  But  while  we  acknowledge  the  exception,  we  must  be  careful  not 
to  extend  it  beyond  its  legitimate  limits.  It  is  admitted  from  necessity,  and  perhaps 
on  a  principle  of  convenience,  because,  as  is  said  in  Yesey,  every  one  does  noc  show 
what  he  puts  in  a  box.  This  applies  with  great  force  to  wearing  apparel,  and  to  every 
article  which  is  necessary  or  convenient  to  the  traveller,  which,  in  most  cases,  are 
I>acked  by  the  party  himself,  or  his  wife,  and  which,  therefore,  would  admit  of  no  other 
]»roof.  A  lady's  jewelry  would  come  in  this  class  ;  and  it  is  easier  to  conceive  than  to 
enumerate  other  articles,  which  come  within  the  same  category.  Nor  would  it  be  right 
to  restrict  the  list  of  articles,  which  may  be  so  proved,  within  narrow  limits,  as  the  jurj 


490  LAW    OF    EVIDENCE.  [PART   III. 

Such  evidence  is  admitted  not  solely  on  the  ground  of  the  just 
odium  entertained,  both  in  equity  and  at  law,  against  spoliation, 
but  also  because,  from  the  necessity  of  the  case  and  the  nature  of 
the  subject,  no  proof  can  otherwise  be  expected ;  it  not  being  usual 
even  for  the  most  prudent  persons,  in  such  cases,  to  exhibit  the 
contents  of  their  trunks  to  strangers,  or  to  provide  other  evidence 
of  their  value.  For,  where  the  law  can  have  no  force  but  by  the 
evidence  of  the  person  in  interest,  there  the  rules  of  the  common 
law,  respecting  evidence  in  general,  are  presumed  to  be  laid  aside  ; 
or  rather,  the  subordinate  are  silenced  by  the  most  transcendent 
and  universal  rule,  that  in  all  cases  that  evidence  is  good,  than 
which  the  nature  of  the  subject  presumes  none  better  to  be 
attainable.^ 

§  349.  Same  subject.  Upon  the  same  necessity,  the  party  is 
admitted  in  divers  other  cases  to  prove  the  facts,  which,  from 
their  nature,  none  but  a  party  could  be  likely  to  know.  But  in 
such  cases,  afomidation  must  first  be  laid  for  the  party's  oath,  by 
proving  the  other  facts  of  the  case  down  to  the  period  to  which 
the  party  is  to  speak.  As,  for  example,  if  a  deed  or  other  mate- 
rial instrument  of  evidence  is  lost,  it  must  first  be  proved,  as  we 
shall  hereafter  show,  that  such  a  document  existed ;  after  which 
the  party's  own  oath  may  be  received  to  the  fact  and  circum- 
stances of  its  loss,  provided  it  was  lost  out  of  his  6wn  custody.  ^ 

will  be  the  judges  of  the  credit  to  he  attached  to  the  witness,  and  be  able,  in  most 
cases,  to  prevent  any  injury  to  the  defendant.  It  would  seem  to  nie  to  be  of  no  con- 
sequence, whether  the  article  was  sent  by  a  carrier,  or  accompanied  the  traveller.  The 
case  of  Herman  v.  Drinkwater,  I  would  I'emark,  was  decided  under  very  aggravated 
circumstances,  and  was  rightly  ruled.  But  it  must  be  understood,  that  such  proof  can- 
not be  admitted,  merely  because  no  other  evidence  of  the  fact  can  be  obtained.  For,  if 
a  merchant,  sending  goods  to  his  correspondent,  chooses  to  pack  them  himself,  his 
neglect  to  furnish  himself  with  the  ordinary  proof  is  no  reason  for  dispensing  with  the 
rule  of  evidence,  which  requires  disinterested  testimony.  It  is  not  of  the  usual  course 
of  business  ;  and  there  must  be  something  peculiar  and  extraordinary  in  the  circum- 
stances of  the  case,  which  would  justify  the  court  in  admitting  the  oath  of  the  party." 
See  10  Watts,  336,  337.  See  also  ace.  David  v.  Moore,  2  Watts  &  Seig.  230  ;  White- 
sell  V.  Crane,  8  Watts  &  Serg.  369  ;  McGill  v.  Rovvand,  3  Barr,  451  ;  County  i>.  Leidy, 
10  Barr,  45. 

6  Gilb.  Evid.  by  Lofft,  pp.  244,  245,  sitpra,  §  82. 

1  Infra,  §  558  ;  Tayloe  v.  Riggs,  1  Peters,  591,  596  ;  Patterson  v.  Winn,  5  Peters, 
240,  242  ;  Riggs  v.  Tayloe,  9  Wheat.  486;  Taunton  Bank  v.  Richardson,  5  Pick.  436, 
442  ;  Poigiiard  v.  Smith,  8  Pick.  278  ;  Page  v.  Page,  15  Pick.  368,  374,  375  ;  Cham- 
berlain V.  Oorham,  20  Johns.  144  ;  Jackson  v.  Frier,  16  Johns.  193  ;  Douglass  v.  San- 
derson, 2  Dall.  116  ;  s.  c.  1  Yeates,  15  ;  Meeker  v.  Jackson,  3  Yeates,  442  ;  Blanton 
V.  Miller,  1  Hayw.  4  ;  Seekright  v.  Bogan,  Id.  178,  n.  ;  Smiley  v.  Dewey,  17  Ohio, 
156.  In  Connecticut,  the  party  has  been  adjudged  incompetent.  Coleman  v.  Wol- 
cott,  4  Day,  388.  But  this  decision  has  since  been  overruled  ;  and  it  is  now  held,  that 
a  party  to  the  suit  is  an  admissible  witness,  to  prove  to  the  court  that  an  instrument, 
which  it  is  necessary  to  produce  at  the  trial,  is  destroyed  or  lost,  so  as  to  let  in  secon* 
dary  evidence;  that  there  is  no  distinction,  in  this  respect,  between  cases  where  the 
action  is  upon  the  instrument,  and  those  where  the  question  arises  indirectly  ;  and 
that  it  is  of  no  importance,  in  the  order  of  exhibiting  the  evidence,  which  fact  is  first 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  491 

To  this  head  of  necessity  may  be  referred  the  admission  of  the 
party  robbed,  as  a  witness  for  liimself,  in  an  action  against  the 
hundrod,  upon  the  statute  of  Winton.*  So,  also,  in  questions 
which  do  not  involve  the  matter  in  controversy,  but  matter  which 
is  auxiliary  to  the  trial,  and  which  in  their  nature  are  prelimi- 
nary to  the  principal  subject  of  controversy,  and  are  addressed  to 
the  court,  the  oath  of  the  party  is  received.^  Of  this  nature  his 
affidavit  of  the  materiality  of  a  witness;  of  diligent  search  made 
fjr  a  witness,  or  for  a  paper;  of  his  inability  to  attend;  of  the 
death  of  a  subscribing-  witness ;  and  so  of  other  matters,  of  which 
the  books  of  practice  abound  in  examples. 

§  350.  Same  subject.  The  second  class  of  cases,  in  which  the 
oath  in  litem  is  admitted,  consists  of  those  in  which  public  ne- 
cessity or  expediency  has  required  it.  Some  cases  of  this  class 
have  their  foundation  in  the  edict  of  the  Roman  Prietor ;  "  Nautae, 
caupones,  stabularii,  quod  cujusque  salvum  fore  receperint,  nisi 
restituent,  in  eos  judicium  dabo.  "^  Though  the  terms  of  the 
edict  comprehended  only  shipmasters,  innkeepers,  and  stable- 
keepers,  yet  its  principle  has  been  held  to  extend  to  other  bai- 
lees, against  w^hom,  when  guilty  of  a  breach  of  the  trust  confided 
to  them,  damages  were  awarded  upon  the  oath  of  the  party  in- 
jured, per  modum  poenoe  to  the  defendant,  and  from  the  necessity 
of  the  case.  2  But  the  common  law  has  not  admitted  the  oath  of 
the  party  upon  the  ground  of  the  Praetor's  edict ;  but  has  confined 
its  admission  strictly  to  those  cases  where,  from  their  nature,  no 
other  evidence  was  attainable.^  Thus,  in  cases  of  necessity, 
where  a  statute  can  receive  no  execution,  unless  the  party  inter- 
proved,  whether  the  fact  of  the  existence  and  contents  of  the  instrument,  or  the  fact  of 
its  destruction  or  loss.  Fitch  v.  Bogue,  19  Conn.  285.  In  the  prosecutions  for  bas- 
tardy, whether  by  the  female  herself,  or  by  the  town  or  parish  officers,  she  is  competent 
to  testify  to  facts  within  her  own  exclusive  knowledge,  though  in  most  of  the  United 
States  the  terms  of  her  admission  are  prescribed  by  statute.  Drowne  v.  Stimpson,  2 
Mass.  441;  Judson  v.  Blanchard,  4  Conn.  557;  Davis  i'.  Salisbury,  1  Day,  278; 
Mariner  v.  Dyer,  2  Greenl.  172  ;  Anon.,  3  N.  H.  135  ;  Mather  u.  Clark,  2  Aik.  209; 
State  V.  Coatnev,  8  Yerg.  210. 

♦  Bull.  N.  P.  187,  289, 

6  1  Peters,  596,  597,  per  Marshall,  C.  J.  See  also  Anon.,  Cro.  Jac.  429  ;  Cook  v. 
Remington,  6  Mod.  237 ;  Ward  v.  Apprice,  Id.  264  ;  Soresbv  v.  Sparrow,  2  Stra.  1186  ; 
J  evens  v.  Harridge,  1  Saund.  9;  Forbes  i'.  Wale,  1  W.  Bl.  532;  .s.  c.  1  Esp.  278  ; 
Fortescue  and  Coake's  Case,  Godb.  193  ;  Anon.,  Godb.  326  ;  2  Stark.  Evid.  580,  n.  (2), 
6th  Am.  ed.  ;  infra,  §  553. 

1  Dig.  lib.  4,  tit.  9,  1.   1. 

2  This  head  of  evidence  is  recognized  in  the  courts  of  Scotland,  and  is  fully  ex- 
plained in  Tait  on  Evid.  pp.  280-287.  In  Lower  Canada,  the  courts  are  bound  to 
admit  the  decisory  oath  (sermcnt  dccisoire)  of  the  parties,  in  commercial  matters,  when- 
ever either  of  them  shall  exact  it  of  the  other.     Rev.  Stat.  1845,  p.  143. 

3  Wager  of  law  is  hardly  an  exception  to  this  rule  of  the  common  law,  since  it  was 
ordinarily  allowed  only  in  cases  where  the  transaction  was  one  of  personal  and  private 
trust  and  confidence  between  the  parties.     See  3  Bl.  Comm.  345,  346. 


492  LAW    OP    EVIDENCE.  [PART    III. 

ested  be  a  witness,  there  he  must  be  allowed  to  testify;  for  the 
statute  must  not  be  rendered  ineffectual  by  the  impossibility  of 
proof.* 

§  351.  Answer  in  equity.  Another  exception  is  allowed  in 
equity,  by  which  the  answer  of  the  defendant,  so  far  as  it  is 
strictly  responsive  to  the  bill,  is  admitted  as  evidence  in  his 
favor  as  well  as  against  him.  The  reason  is,  that  the  plaintiff, 
by  appealing  to  the  conscience  of  the  defendant,  admits  that  his 
answer  is  worthy  of  credit,  as  to  the  matter  of  the  inquiry.  It 
is  not  conclusive  evidence ;  but  is  treated  like  the  testimony  of 
any  other  witness,  and  is  decisive  of  the  question  only  where  it  is 
not  outweighed  by  other  evidence.^ 

§  352.  Oath  diverse  intuitu.  So  also  the  oath  of  the  party, 
taken  diverso  intuitu,  may  sometimes  be  admitted  at  law  in  his 
favor.  Thus,  in  considering  the  question  of  the  originality  of 
an  invention,  the  letters-patent  being  in  the  case,  the  oath  of  the 
inventor,  made  prior  to  the  issuing  of  the  letters-patent,  that  he 
was  the  true  and  first  inventor,  may  be  opposed  to  the  oath  of  a 
witness,  whose  testimony  is  offered  to  show  that  the  invention 
was  not  original.^  So,  upon  the  trial  of  an  action  for  malicious 
prosecution,  in  causing  the  plaintiff  to  be  indicted,  proof  of  the 
evidence  given  by  the  defendant  on  the  trial  of  the  indictment  is 
said  to  be  admissible  in  proof  of  probable  cause. ^  And,  gener- 
ally, the  certificate  of  an  officer,  when  by  law  it  is  the  evidence 
for  others,  is  competent  evidence  for  himself,  if,  at  the  time  of 
making  it,  he  was  authorized  to  do  the  act  therein  certified.'^ 

§  353.  Party  not  compellable  to  testify.  The  rule  which  ex- 
cludes the  party  to  the  suit  from  being  admitted  as  a  witness  is 
also  a  rule  of  protection,  no  person  who  is  a  party  to  the  record 
being  compellable  to  testify.  ^     It  is  only  when  he  consents  to  be 

*  United  States  v.  Murphy,  16  Peters,  203.     See  infra,  §  412. 

5  2  Story  on  Eq.  Jur.  §  1528  ;  Clark  v.  Van  Riemsdyk,  9  Cranch,  160.  But  the 
answer  of  a,u  infant  can  never  be  read  against  him  ;  nor  can  that  of  a  feme  covert, 
answering  jointly  with  her  husband.  Gresley  on  Evid.  p.  24.  An  arbitrator  has  no 
right  to  admit  a  party  in  the  cause  as  a  witness,  unless  he  has  specific  authority  so  to 
do.     Smith  v.  Sparrow,  11  .lur.  126. 

1  Alden  v.  Dewey,  1  Story,  336  ;  s.  c.  3  Law  Reporter,  383  ;  Pettibene  v.  Der- 
ringer, 4  Wash.  C.  C.  215. 

2  Bull.  N.  P.  14  ;  Johnson  v.  Browning,  6  Mod.  216.  "For  otherwise,"  said  Holt, 
C.  J.,  "one  that  should  be  robbed,  &c.,  would  be  under  an  intolerable  mi.schief ;  for 
if  he  prosecuted  for  such  robbery,  &c.,  and  the  party  should  at  any  rate  be  acquitted, 
the  prosecutor  would  be  liable  to  an  action  for  a  malicious  prosecution,  without  a 
]>ossibility  of  making  a  good  defence,  though  the  cause  of  prosecution  were  never  so 
pregnant." 

3  McKnight  v.  Lewis,  5  Barb.  S.  C.  681  ;  McCully  v.  Malcolm,  9  Humph.  187. 
So,  the  account  of  sales,  rendered  by  a  consignee,  may  be  evidence  for  some  purposes, 
in  his  favor,  asainst  the  consignor.      Mertcns  v.  Nottebohnis.  4  Grant,  163. 

1  Rex  V.  Woburn,  10  East,  395  ;  AVorrall  v.  Jones,  7  Bing.  395  ;  Fenn  v.  Granger, 
3  Campb.  177  ;  Mant  v.  Mainwaring,  8  Taunt.  139. 


CHAP.    II.]  COMPETENCY   OF    WITNESSES.  493 

examined,  that  he  is  admissible  in  any  case ;  nor  then,  unless 
under  the  circumstances  presently  to  be  mentioned.  If  he  is  only 
a  nominal  party,  the  consent  of  the  real  party  in  interest  must  be 
obtained  liefore  he  can  be  examined.'^  Nor  can  one  who  is  sub- 
stantially a  party  to  the  record  be  compelled  to  testify,  though  he 
be  not  nominally  a  party.  ^ 

^  354.  Co-plaintiffs  inadmissible  •without  consent  of  the  others. 
It  has  been  said,  that  where  one  of  several  co-plaintiffs  voluntarily 
comes  forward  as  a  witness  for  the  adverse  party,  he  is  admissi- 
ble, without  or  even  against  the  consent  of  his  fellows;  upon  the 
ground,  that  he  is  testifying  against  his  own  interest,  that  the 
privilege  of  exemption  is  personal  and  several,  and  not  mutual 
and  joint,  and  that  his  declarations  out  of  court  being  admissible, 
a  fortiori^  they  ought  to  be  received,  when  made  in  court  under 
oath.i  But  the  better  opinion  is,  and  so  it  has  been  resolved,^ 
that  such  a  rule  would  hold  out  to  parties  a  strong  temptation  to 
perjury;  that  it  is  not  supported  by  principle  or  authority,  and 
that  therefore  the  party  is  not  admissible,  without  the  consent  of 
all  parties  to  the  record,  for  that  the  privilege  is  mutual  and 
joint,  and  not  several.  It  may  also  be  observed,  that  the  declara- 
tions of  one  of  several  parties  are  not  always  admissible  against 
his  fellows,  and  that,  when  admitted,  they  are  often  susceptible 

2  Frear  v.  Evertson,  20  Johns.  142.  And  see  People  v.  Irving,  1  Wend.  20  ;  Com- 
monwealth V.  Marsh,  10  Pick.  57,  per  Wilde,  J.  ;  Columbian  Manuf.  Co.  v.  Dutch,  13 
Pick.  125  ;  Bradlee  v.  Neal,  16  Pick.  501.  In  Connecticut,  and  Vermont,  where  the 
declarations  of  the  assignor  of  a  chose  in  action  are  still  held  admissible  to  impeach  it 
in  the  hands  of  the  assignee,  in  an  action  brought  in  the  name  of  the  former  for  the 
benefit  of  the  latter,  the  defendant  is  permitted  to  read  the  deposition  of  the  nominal 
plaintiff",  voluntarily  given,  though  objected  to  by  the  party  in  interest.  Woodruff  y. 
Westcott,  12  Conn.  134  ;  Johnson  v.  Blackman,  11  Conn.  342  ;  Sargeant  v.  Sargeant, 
18  Vt.  371.     Sees(i;;ra,  §  190. 

3  Mauran  v.  Lamb,  7  Cowen,  174;  Rex  t^.  Woburn,  10  East,  403,  per  Ld.  Ellen- 
borough.  In  several  of  the  United  States  it  is  enacted  that  the  parties,  in  actions  at 
law,  as  well  as  in  equity,  may  inteirogate  each  other  as  witnesses.  See  Massachusetts, 
Stat.  1852,  c.  312,  §§  61-75  ;  New  York,  Code  of  Practice,  §§  344,  349,  350  ;  Texas, 
Hartley's  Dig.  arts.  735,  739  ;  California,  Rev.  Stat.  1850,  c.  142,  §§  296-303  [supra, 
§  329  and  n.].     See  vol.  iii.  §  317. 

1  Phil.  &  Am.  on  Evid.  158  ;  1  Phil.  Evid.  60.  The  cases  which  are  usually  cited 
to  support  this  opinion  are  Norden  v.  Williamson,  1  Taunt.  377  ;  Fenn  v.  Granger, 
3  Campb.  177  ;  and  Worrall  v.  Jones,  7  Bing.  395.  But  in  the  first  of  these  cases,  no 
objection  appears  to  have  been  made  on  belialf  of  the  other  co-plaintiiT,  that  his  consent 
was  necessary  ;  but  the  decision  is  expressly  placed  on  the  ground,  that  neither  party 
objected  at  the  time.  In  Fenn  v.  Granger,  Ld.  EUenborough  would  have  rejected  the 
witness,  but  the  objection  was  waived.  In  Worrall  v.  Jones,  the  naked  question  was, 
whether  a  defendant  who  has  suffered  judgment  by  default,  and  has  no  interest  in  the 
event  of  the  suit,  is  admissible  as  a  witness  for  the  plantiff,  by  his  own  consent,  where 
"the  only  objection  to  his  admissibility  is  this,  that  he  is  party  to  the  record."  See 
also  Willings  v.  Consequa,  1  Peters,  C.  C.  307,  per  Washington,  J.  ;  Paine  v.  Tilden, 
20  Vt.  554. 

2  Scott  V.  Lloyd,  12  Peters,  149.  See  also  2  Stark.  Evid.  580,  n.  e  ;  Bridges  v. 
Armour,  5  How.  S.  C.  91  ;  Evans  i;.  Gibbs,  6  Humph.  405  ;  Sargeant  v.  Sargeant,  18 
Vt.  371. 


494  LAW    OF    EVIDENCE.  [PART    III. 

of  explanation  or  contradiction,  where  testimony  under  oath  could 
not  be  resisted. 

§  355.  Effect  of  default,  nolle  prosequi,  and  verdict.  Hitherto, 
in  treating  of  the  admissibility  of  parties  to  the  record  as  wit- 
nesses, they  have  been- considered  as  still  retaining  their  original 
situation,  assumed  at  the  commencement  of  the  suit.  But  as  the 
situation  of  some  of  the  defendants,  where  there  are  several  in 
the  same  suit,  may  be  essentially  changed  in  the  course  of  its  pro- 
gress, by  default,  or  nolle  prosequi,  and  sometimes  by  verdict, 
their  case  deserves  a  distinct  consideration.  This  question  has 
arisen  in  cases  where  the  testimony  of  a  defendant,  thus  situated, 
is  material  to  the  defence  of  his  fellows.  And  here  the  general 
doctrine  is,  that  where  the  suit  is  ended  as  to  one  of  several  de- 
fendants, and  he  has  no  direct  interest  in  its  event  as  to  the 
others,  he  is  a  competent  witness  for  them,  his  own  fate  being 
at  all  events  certain.* 

§  356.  In  actions  of  contract.  In  actions  on  contracts,  the  opera- 
tion of  this  rule  was  formerly  excluded ;  for  the  contract  being 
laid  jointly,  the  judgment  by  default  against  one  of  several  de- 
fendants, it  was  thought,  would  operate  against  him,  only  in  the 
event  of  a  verdict  against  the  others ;  and  accordingly  he  has  been 
held  inadmissible  in  such  actions,  as  a  witness  in  their  favor.  ^  (a) 
On  a  similar  principle,  a  defendant  thus  situated  has  been  held 
not  a  competent  witness  for  the  plaintiff ;  on  the  ground  that,  by 
suffering  judgment  by  default,  he  admitted  that  he  was  liable  to 
the  plaintiff's  demand,  and  was  therefore  directly  interested  in 
throwing  part  of  that  burden  on  another  person. ^  But  in  another 
case,  where  the  action  was  upon  a  bond,  and  the  principal  suf- 
fered judgment  by  default,  he  was  admitted  as  a  witness  for  the 
plaintiff,  against  one  of  the  other  defendants,  his  surety ;  though 
here  the  point  submitted  to  the  court  was  narrowed  to  the  mere 
abstract  question,  whether  a  party  to  the  record  was,  on  that 
account  alone,  precluded  from  being  a  witness,  he  having  no  in- 
terest in  the  event.  ^     But  the  whole  subject  has  more  recently 

4  Infra,  §§  358-360,  363. 

1  Mant  V.  Mainwaring,  8  Taunt.  139  ;  Brown  v.  Brown,  4  Taunt.  752  ;  Schermer- 
horn  V.  Schermerhorn,  1  Wend.  119  ;  Columbian  Man.  Co.  v.  Dutch,  13  Pick.  125  ; 
Mills  V.  Lee,  4  Hill,  549. 

2  Green  v.  Sutton,  2  M.  &  Roh.  269. 

8  Worrall  v.  Jones,  7  Bing.  395.  See  Foxcroft  v.  Nevens,  4  Greenl.  72,  cmitra.  In 
a  case  before  Le  Blanc,  J.,  he  refused  to  permit  one  defendant,  who  had  sufiered  judg- 
ment to  go  by  default,  to  be  called  by  the  plaintiff  to  inculpate  the  others,  even  in  an 
action  of  trespass.  Chapman  v.  Graves,  2  Campb.  333,  334,  n.  See  ace.  Supervisors 
of  Chenango  v.  Birdsall,  4  Wend.  456,  457.     The  general  rule  is,  that  a  party  to  the 

{a)  Thornton  v.  Blaisdell,  37  Me.  190;  King  v.  Lowry,  20  Barb.  (N.  Y.)  532. 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  495 

been  reviewed  in  England,  and  the  rule  established,  that  where 
one  of  two  joint  defendants  in  an  action  on  contract  has  suffered 
judgment  by  default,  he  may,  if  not  otherwise  interested  in  'pro- 
curing a  verdict  for  the  plaintiff,  be  called  by  him  as  a  witness 
against  the  other  defendant.*  (6)  So,  if  the  defence,  in  an  action 
ex  contractu  against  several,  goes  merely  to  the  personal  discharge 
of  the  party  pleading  it,  and  not  to  that  of  the  others,  and  the 
plaintiff  thereupon  enters  a  nolle  prosequi  as  to  him,  which  in 
such  cases  he  may  well  do,  such  defendant  is  no  longer  a  party 
upon  the  record,  and  is  therefore  competent  as  a  witness,  if  not 
otherwise  disqualified.  Thus,  where  the  plea  by  one  of  several 
defendants  is  bankruptcy,^  or,  that  he  was  never  executor,  or,  as 
it  seems  by  the  latter  and  better  opinions,  infancy  or  coverture,^ 
the  plaintiff  may  enter  a  nolle  prosequi  as  to  such  party,  who,  be- 
ing thus  disengaged  from  the  record,  may  be  called  as  a  witness, 
the  suit  still  proceeding  against  the  others. ^  The  mere  pleading 
of  the  bankruptcy,  or  other  matter  of  personal  discharge,  is  not 

renord  can,  in  no  case,  be  examined  as  a  witness  ;  a  rule  founded  principally  on  the 
policy  of  preventing  perjury,  and  the  hardship  of  calling  on  a  party  to  charge  himself. 
Frazier  v.  Laughlin,  1  Gilm.  (III.)  3i7  ;  Flint  v.  AUyn,  12  Vt.  615  ;  Kennedy  v.  Niles, 
2  Shepl.  54  ;  Stone  v.  Bibb,  2  Ala.  100.  And  this  rule  is  strictly  enforced  against 
plaintiffs,  because  the  joining  of  so  many  defendants  is  generally  their  own  act,  though 
sometimes  it  is  a  matter  of  necessity.  2  Stark.  Evid.  581,  n.  a;  Blackett  v.  Weir, 
5  B.  &  C.  387  ;  Barret  v.  Gore,  3  Atk.  401  ;  Bull.  N.  P.  285  ;  Cas.  temp.  Hardw. 
163. 

*  Pipe  V.  Steel,  2  Q.  B.  733  ;  Cupper  v.  Newark,  2  C.  &  K.  24.  Thus,  he  has  been 
admitted,  with  his  own  consent,  as  a  witness  to  prove  that  he  is  the  principal  debtor, 
and  that  the  signatures  of  the  other  defendants,  who  are  his  sureties,  are  genuine. 
Mevey  v.  Matthews,  9  Barr,  112.  But  generally  he  is  interested  ;  either  to  defeat  the 
action  against  both,  or  to  throw  on  the  other  defendant  a  portion  of  the  demand,  or  to 
reduce  the  amount  to  be  recovered.  Bowman  v.  Noyes,  12  N.  H.  302  ;  George  v.  Sar- 
gent, Id.  313  ;  Vinal  v.  Burrill,  18  Pick.  29  ;  Bull  v.  Strong,  8  Met.  8  ;  Walton  v. 
Tomlin,  1  Ired.  593  ;  Turner  v.  Lazarus,  6  Ala.  875. 

6  Noke  V.  Ingham,  1  Wils.  89  ;  1  Tidd's  Pr.  602  :  1  Saund.  207  a.  But  see  Mills 
V.  Lee,  4  Hill,  549. 

6  1  Paine  &  Duer's  Pr.  642,  643  ;  Woodward  v.  Newhall,  1  Pick.  500  ;  Hartness  v. 
Thompson,  5  Johnson,  160  ;  Pell  v.  Pell,  20  Johns.  126  ;  Burgess  v.  Merrill,  4  Taunt. 
468.  The  ground  is,  that  these  pleas  are  not  in  bar  of  the  entire  action,  but  only  in 
bar  as  to  the  party's  pleading  ;  and  thus  the  case  is  brought  within  the  general  principle, 
that  where  the  plea  goes  only  to  the  personal  discharge  of  the  party  pleading  it,  the 
plaintiff  may  enter  a  nolle  prosequi.  1  Pick.  501,  502.  See  also  Minor  v.  Mechanics' 
Bank  of  Alexandria,  1  Peters,  74.  So,  if  the  cause  is  otherwise  adjudicated  in  favor  of 
one  of  the  defendants,  upon  a  plea  personal  to  himself,  whether  it  be  by  the  common 
law,  or  by  virtue  of  a  statute  authorizing  a  separate  finding  in  favor  of  one  defendant, 
in  an  action  upon  a  joint  contract,  the  result  is  the  same.  Blake  v.  Ladd,  10  N.  H. 
190  ;  Essex  Bnnk  v.  Rix,  Id.  201  ;  Brooks  v.  M'Kinney,  4  Scam.  309.  And  see  Camp- 
bell V.  Hood,  6  Mo.  211. 

■?  Mclver  v.  Humble,  16  East,  171,  per  Le  Blanc,  J.,  cited  7  Taunt.  607,  per  Park, 
J.;  Moody  v.  King,  2  B.  &  C.  558  ;  Aflalo  v.  Fourdriuier,  6  Bing.  306.  But  see  Irwin 
V.  Shumaker,  4  Barr,  199. 

(h)  Berry  v.  Stevens,  71  Me.  503  ;  Manchester  Bank  v.  Moore,  19  N.  H.  564  ; 
Kincaid  v.  Parcell,  1  Ind.  324. 


496  LAW   OF   EVIDENCE.  [PART   III. 

alone  sufficient  to  render  the  party  a  competent  witness ;  and  it 
has  been  held,  that  he  is  not  entitled  to  a  previous  verdict  upon 
that  plea,  for  the  purpose  of  testifying  for  the  others. ^ 

§  357.  In  actions  of  tort.  In  actions  on  torts,  these  being  in 
their  nature  and  legal  consequences  several,  as  well  as  ordinarily 
joint,  and  there  being  no  contribution  among  wrong-doers,  it  has 
not  been  deemed  necessary  to  exclude  a  material  witness  for  the 
defendants,  merely  because  the  plaintiff  has  joined  him  with  them 
in  the  suit,  if  the  suit,  as  to  him,  is  already  determined,  and  he 
has  no  longer  any  legal  interest  in  the  event,  i  Accordingly,  a 
defendant  in  an  action  for  a  tort,  who  has  suffered  judgment  to 
go  by  default,  has  uniformly  been  held  admissible  as  a  witness 
for  his  co-defendants. 2  Whether,  being  admitted  as  a  witness, 
he  is  competent  to  testify  to  the  amount  of  damages,  which  are 
generally  assessed  entire  against  all  who  are  found  guilty, ^  may 
well  be  doubted.  4  (a)     And  indeed  the  rule,  admitting  a  defendant 

8  Kaven  v.  Dunning,  3  Esp.  25  ;  Emmet  v.  Butler,  7  Taunt.  599  ;  s.  c.  1  Moore, 
322  ;  Schermerhorn  vrSchennerhorn,  1  Wend.  119.  But  in  a  later  case,  since  the 
49  G  III  c  121  Park,  J.,  permitted  a  verdict  to  he  returned  upon  the  plea,  in  order 
to  admit  the  witness.  Bate  v.  Kussell,  1  Mood.  &  M.  332.  Where,  by  statute,  the 
plaintiff,  in  an  action  on  a  parol  contract  against  several,  may  have  judgment  against 
one  or  more  of  the  defendants,  according  to  his  proof,  there  it  has  been  held,  that  a 
defendant  who  has  been  defaulted  is,  with  his  conseJit,  a  competent  witness  in  favor  ot 
his  co-defendants.  Bradlee  v.  Neal,  16  Pick.  501.  But  this  has  since  been  questioned, 
on  the  ground  that  his  interest  is  to  reduce  the  demand  of  the  plaintiff  against  the 
others  to  nominal  damages,  in  order  that  no  greater  damages  may  be  assessed  against 
him  upon  his  default.     Viiial  v.  Burrili,  18  Pick.  29.  (c)  r  ■c>^    ^  e 

i  As,  if  one  has  been  separately  tried  and  acquitted.     Carpenter  v.  Crane,  5  Blackt. 

119. 

••«  Ward  V.  Haydon,  2  Esp.  552,  approved  in  Hawkesworth  v.  Showier,  12  M.  &  W. 
48  •  Chapman  v.  Graves,  2  Campb.  334,  per  Le  Blanc,  J.  ;  Commonwealth  v  Marsh, 
10  Pick  57  58.  A  defendant,  in  such  case,  is  also  a  competent  witness  for  the  plain- 
tiff. Hadrick  v.  Heslop,  12  Jur.  600  ;  17  Law  Journ.  Q.  B.  N.  «•  313  ;  12  Q.  B.  267. 
The  wife  of  one  joint  trespasser  is  not  admissible  as  a  witness  for  the  other,  though  the 
rase  is  already  fully  proved  against  her  husband,  if  he  is  still  a  party  to  the  record. 
Hawkesworth  i'.  Showier,  12  M.  &  W.  45. 

3  2  Tidd's  Pr.  896.  ,  ,      ■.   .        .,    .  ^i 

4  In  Mash  v  Smith,  1  C.  &  P.  577,  Best,  C.  J.,  was  of  opinion,  that  the  witness 
ought  not  to  be  admitted  at  all,  on  the  ground  that  his  evidence  might  give  a  different 
complexion  to  the  case,  and  thus  go  to  reduce  the  damages  against  himself ;  but  on  the 
authority  of  Ward  v.  Haydon,  and  Chapman  v.  Graves,  he  thought  it  best  to  receive 
the  witness,  giving  leave  to  the  opposing  party  to  move  for  a  new  trial,  l.ut  the  point 
was  not  moved  ;  and  the  report  does  not  show  wiiich  way  was  the  verdict,  it  has, 
however,  more  recently  been  held  in  England,  that  a  defendant  in  trespass,  who  has 
suffered  iudcment  by  default,  is  not  a  competent  witness  for  his  co-defendant,  where 
the  jury  are  summoned  as  well  to  try  the  issue  against  the  one,  as  to  assess  damages 

tc)    Shaw,    C.  J.,  in  Gerrish  v.   Cum-  though  called  to  testify  to   matters  not 

miiUs,  4  Cash.  391,  distinguishes  Vinal  connected  with  the  question  of  damages ; 

V.  BTn'rill  from  Bradlee  v.  Neal.  because,  if  admissible  at  all,  he  is  liable  to 

(r,)  Where  one  of  two  defendants  in  an  he  examined  upon  all  matters  pertinent  to 

action  of  trover  is  defaulted,  he  is  not  a  the  issue  on  trial.     Gerrish  v.  Cummmgs, 

competent  witness   on   the   trial  for  the  4  Cush.  (Mass.)  391  ;  Chase  v.  Lovenng, 

other,   on   the  ground   of  interest,    even  27  N.  H.  295. 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  497 

as  witness  for  his  fellows  in  any  case,  must,  as  it  should  seem,  be 
limited  strictly  to  the  case  where  his  testimony  cannot  directly 
make  for  himself;  for  if  the  plea  set  up  by  the  other  defendants 
is  of  such  a  nature  as  to  show  that  the  plaintiff  has  no  cause  of 
action  against  any  of  the  defendants  in  the  suit,  the  one  who  suf- 
fers judgment  by  default  will  be  entitled  to  the  benefit  of  the  de- 
fence, if  established,  and  therefore  is  as  directly  interested  as  if 
the  action  were  upon  a  joint  contract.  It  is,  therefore,  only 
where  the  plea  operates  solely  in  discharge  of  the  party  pleading 
it,  that  another  defendant,  who  has  suffered  judgment  to  go  by 
default,  is  admissible  as  a  witness.^* 

§  358.  Misjoinder  of  parties.  If  the  person  who  is  a  material 
witness  for  the  defendants  has  been  improperly  joined  with  them 
in  the  suit,  for  the  purpose  of  excluding  his  testimony,  the  jury 
will  be  directed  to  find  a  separate  verdict  in  his  favor ;  in  which 
case,  the  cause  being  at  an  end  with  respect  to  him,  he  may  be 
admitted  a  witness  for  the  other  defendants.  But  this  can  be 
allowed  only  where  there  is  no  evidence  whatever  against  him, 
for  then  only  does  it  appear  that  he  was  improperly  joined  through 
the  artifice  and  fraud  of  the  plaintiff.  But  if  there  be  any  evi- 
dence against  him,  though,  in  the  judge's  opinion,  not  enough 
for  his  .conviction,  he  cannot  be  admitted  as  a  witness  for  his  fel- 
lows, because  his  guilt  or  innocence  must  wait  the  event  of  the 
verdict,  the  jury  being  the  sole  judges  of  the  fact.^  In  what 
stage  of  the  cause  the  party,  thus  improperly  joined,  may  be 
acquitted,  and  whether  before  the  close  of  the  case  on  the  part  of 
the  other  defendants,  was  formerly  uncertain ;  but  it  is  now  set- 
tled, that  the  application  to  a  judge,  in  the  coui'se  of  a  cause,  to 
direct  a  verdict  for  one  or  more  of  several  defendants  in  trespass, 
is  strictly  to  his  discretion;  and  that  discretion  is  to  be  regu- 
lated, not  merely  by  the  fact  that,  at  the  close  of  the  plaintiff's 
case,  no  evidence  appears  to  affect  them,  but  by  the  probabilities 
whether  any  such  will  arise  before  the  whole  evidence  in  the 
cause  closes. 2     The  ordinary  course,  therefore,  is  to  let  the  cause 

against  the  other.     Thorpe  v.  Barber,  5  M.  G.  &  Sc.  675  ;    17  Law  Journ.  n.  s.  C.  P. 
113.     And  see  Ballard  v.  Noaks,  2  Pike,  45. 

5  2  Tidd's  Pr.  895  ;  Briggs  v.  Greenfield  ef.  al.,  1  Str.  610;  8  Mod.  217  ;  s.  c.  2  Ld. 
Ravm.  1372  ;  Phil.  &  Am.  on  Evid.  53,  n.  (3)  ;  1  Phil.  Evid.  52,  n.  (1)  ;  Bowman  v. 
Noyes,  12  N.  H.  302. 

1  1  Gilh.  Evid.  by  Lofft,  p.  250  ;  Brown  v.  Howard,  14  Johns,  119,  122  ;  Van 
Deusen  v.  Van  Slyek,  15  Johns.  223.  The  admission  of  the  witness,  in  all  these  cases, 
seems  to  rest  in  the  discretion  of  the  judge.  Brothertou  v.  Living.ston,  3  Watts  &  Serg. 
334. 

2  Sowell  V.  Champion,  6  Ad.  &  El.  407  ;  White  v.  Hill,  6  Q.  B.  487,  491  ;  Com- 
monwealth V.  Eastman,  1  Gush.  189  ;  Over  r.  Blackstone,  8  Watts  &  Serg.  71  ; 
Prettyman  v.  Dean,  2  Haningt.  494  ;  Brown  v.  Burrus,  8  Mo.  26. 

VOL.   I.  —  32 


498  LAW    OF    EVIDENCE.  [PxlRT    III. 

go  on  to  the  end  of  the  evidence.  ^  But  if,  at  the  close  of  the 
plaintiff's  case,  there  is  one  defendant  against  whom  no  evidence 
has  been  given,  and  none  is  anticipated  with  any  probability,  he 
instantly  will  be  acquitted. H«)  The  mere  fact  of  mentioning  the 
party  in  the  simul  cum,  in  the  declaration,  docs  not  render  him 
incompetent  as  a  witness ;  but,  if  the  plaintiff  can  prove  the  per- 
son so  named  to  be  guilty  of  the  trespass,  and  party  to  the  suit, 
which  must  be  by  producing  the  original  process  against  him, 
and  proving  an  ineffectual  endeavor  to  arrest  him,  or  that  the 
process  was  lost,  the  defendant  shall  not  have  the  benefit  of 
his  testimony.^ 

§  359.  Witness  made  party  by  mistake.  If  the  plaintiff,  in 
trespass,  has  by  mistake  made  one  of  his  own  intended  witnesses 
a  defendant,  the  court  will,  on  motion,  give  leave  to  omit  him, 
and  have  his  name  stricken  from  the  record,  even  after  issue 
joined.  1     In  criminal  informations  the  same  object  is  attained  by 

«  6  Q.  B.  491,  per  Ld.  Denman. 

*  Child  V.  Chamberlain,  6  C.  &  P.  213.  It  is  not  easy  to  perceive  why  the  same 
principle  should  not  be  applied  to  actions  upon  contract,  where  one  of  the  defendants 
pleads  a  matter  in  his  own  personal  discharge,  such  as  infancy  or  bankruptcy,  and 
establishes  his  plea  by  a  certificate,  or  other  affirmative  proof,  which  the  plaintiff  does 
not  pretend  to  gainsaV  or  resist.  See  Bate  v.  Russell,  1  Mood.  &  M.  332.  Upon  Emmet 
V.  Butler,  7  Taunt.  599,  where  it  was  not  allowed,  Mr.  Phillips  very  justly  observes, 
that  the  plea  was  not  the  common  one  of  bankruptcy  and  certificate  ;  but  that  the 
plaintiffs  hud  proved  (under  the  commission),  and  thereby  made  their  election  ;  and 
that  where  a  plea  is  special,  and  involves  the  consideration  of  many  facts,  it  is  obvious 
that  there  would  be  much  inconvenience  in  splitting  the  case,  and  taking  separate 
verdicts  ;  but  there  seems  to  be  no  sucii  inconvenience  where  the  whole  proof  consists 
of  the  bankrupt's  certificate.     Phil.  &  Am.  on  Evid.  p.  29,  n.  (3). 

5  Bull  N  P.  286  ;  1  Gilb.  Evid.  bv  Eofft,  p.  251  ;  Lloyd  v.  Williams,  Gas.  temp. 
Hardw.  123  ;"  Cotton  i-.  Luttrell,  1  Atk.  452.  "  These  cases  appear  to  have  proceeded 
upon  the  o-round,  that  a  co-trespasser,  who  had  originally  been  made  a  party  to  the  suit 
upon  sufficient  "rounds,  ought  not  to  come  forward  as  a  witness  to  defeat  the  plaintiff, 
after  he  had  prevented  the  plaintiff  from  jjroceeding  effectually  against  hiin,  by  his  own 
wronc^ful  act  in  eluding  the  process."  Phil.  &  Am.  on  Ev.  p.  60,  n.  (2).  But  see 
Stockham  v.  Jones,  10  Johns.  21,  contra.  See  also  1  Stark.  Evid.  132.  In  Wakely  i-. 
Hart  6  Bin.  316,  all  the  defendants,  in  trespass,  were  arrested,  but  the  plauitiH  went 
to  issue  with  some  of  them  only,  and  did  not  rule  the  others  to  plead,  nor  take  judgment 
against  them  by  default  ;  and  they  were  h(dd  competent  witnesses  for  the  other  defen- 
dants. The  learned  Chief  Justice  placed  the  decision  partly  upon  the  general  ground, 
that  they  were  not  interested  in  the  event  of  the  suit  ;  citing  and  approving  the  case  ot 
Stockham  v.  Jones,  supra.  But  he  also  laid  equal  stress  upon  the  lact  that  the  plain- 
tiff mif  ht  have  conducted  his  cause  so  as  to  have  excluded  the  witnesses,  by  laying  them 
under  a  rule  to  plead,  and  taking  judgment  by  default.  In  Purviance  v.  Dryden,  3  S. 
&  R.  402,  and  Gibbs  v.  Bryant,  1  Pick.  118,  both  of  which  were  actions  upon  contract, 
where  the  process  was  not  served  as  to  one  of  the  persons  named  as  defendant  with  the 
other,  it  was  held  that  he  was  not  a  party  to  the  record,  not  being  served  with  process, 
and  so  was  not  incompetent  as  a  witness  on  that  account.  Neither  of  these  cases  there- 
fore, except  that  of  Stockham  v.  Jones,  touches  the  ground  ot  public  policy  for  the  pre- 
vention of  fraud  in  cases  of  tort,  on  which  the  rule  in  the  text  seems  to  have  been 
founded.  Ideo  Qucere.  See  also  Curtis  v.  Graham,  12  Mart.  289  ;  Heckert  v.  Fegely, 
6  Watts  &  Serff.  139. 

1  Bull.  N.  P.  285  ;  Berrington  d.  Dormer  v.  Fortescue,  Cas.  temp.  Hardw.  162,  163, 

(a)  Beasley  V.  Bradley,  2  Swan  (Tenn.),180  ;  Cochran  v.  Amnion,  16  111.  316. 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  499 

entering  a  nolle  prosequi  as  to  the  party  intended  to  be  examined ; 
the  rule  that  a  plaintiff  can  in  no  case  examine  a  defendant  bcin"- 
enforced  in  criminal  as  well  as  in  civil  cases.* 

§  360.  Same  subject.  If  a  material  witness  for  a  defendant 
in  ejectment  be  also  made  a  defendant,  he  may  let  judgment  go  bv 
default,  and  be  admitted  as  a  witness  for  the  other  defendant. 
But  if  he  plead,  thereby  admitting  himself  tenant  in  possession, 
the  court  will  not  afterwards,  upon  motion,  strike  out  his  name.^ 
But  where  he  is  in  possession  of  only  a  part  of  the  premises,  and 
consents  to  the  return  of  a  verdict  against  him  for  as  much  as 
he  is  proved  to  have  in  possession,  Mr.  Justice  Buller  said,  he 
could  see  no  reason  why  he  should  not  be  a  witness  for  another 
defendant.^  {a) 

§  361.  In  equity.  In  chancer ij,  parties  to  the  record  are  sub- 
ject to  examination  as  witnesses  much  more  freely  than  at  law. 
A  plaintiff  may  obtain  an  order,  as  of  course,  to  examine  a  de- 
fendant, and  a  defendant  a  co-defendant,  as  a  witness,  upon  affi- 
davit that  he  is  a  material  witness,  and  is  not  interested  on  the 
side  of  the  applicant,  in  the  matter  to  which  it  is  proposed  to 
examine  him,  the  order  being  made  subject  to  all  just  excep- 
tions. ^  And  it  may  be  obtained  ex  imrte,  as  well  after  as  before 
decree. 2  If  the  answer  of  the  defendant  has  been  replied  to,  the 
replication  must  be  withdrawn  before  the  plaintiff  can  examine 
him.  But  a  plaintiff  cannot  be  examined  by  a  defendant,  except 
by  consent,  unless  he  is  merely  a  trustee,  or  has  no  beneficial 
interest    in  the  matter  in  question. ^     Nor  can  a  co-plaintiff  be 

*  Ibid. 

5  Bull.  N.  P.  285  ;  Benington  d.  Dormer  v.  Fortescue,  Cas.  temp.  Hardw.  162,  163. 
8  Bull.  N.  P.  286.    But  where  the  same  jury  are  also  to  assess  damages  against  the  wit- 
ness, it  seems  he  is  not  admissible.     See  Mash  v.  Smith,  1  C.  &  P.  .577  ;  supra,  §  356. 

1  2  Daniel's  Chan.  Pr.  1035,  n.  (Perkins's  ed.)  ;  Id.  1043  ;  Ashton  v.  Parker,  14 
Sim.  632.  But  where  there  are  several  defendants,  one  of  whom  alone  has  an  interest 
in  defeating  the  plaintifl's  claim,  the  evidence  of  the  defendant  so  interested,  though 
taken  in  behalf  of  a  co-defendant,  is  held  inadmissible.  Clarke  v.  Wyburn,  12  Jur. 
613.  It  has  been  held  in  Massachusetts,  that  the  answer  of  one  defendant,  so  far  as  it 
is  responsive  to  the  bill,  may  be  read  by  another  defendant,  as  evidence  in  his  own 
favor.     Mills  v.  Gore,  20  Pick.  28. 

2  Steed  V.  Oliver,  11  Jur.  365  ;  Paris  v.  Hughes,  1  Keen,  1  :  Van  v.  Corpe,  3  My. 
&  K.  269.  i  '  y 

^  The  reason  of  this  rule  has  often  been  called  in  question  ;  and  the  opinion  of 
many  of  the  profession  is  inclined  in  favor  of  making  the  right  of  examination  of  par- 
fa)  Where  the  court  in  its  discretion  decision  of  them  ;  and  the  jury  should  be 
orders  several  actions,  di'pending  on  the  directed  to  confine  the  testimony  of  the 
same  evidence,  to  be  tried  together,  the  witness  to  the  case  in  wliieh  he  is  compe- 
testimony  of  a  witness  who  is  competent  tent.  Kimball  v.  Thompson,  4  Cush. 
in  one  of  the  actions,  is  not  to  be  excluded  (Mass.)  441.  See  also  Reeves  v.  Matthews, 
because  it  is  inadmissible  in  the  others,  17  Ga.  449. 
and  may  possibly  have  some  effect  on  the 


500  LAW   OF   EVIDENCE.  [PART   III. 

examined  by  a  plaintiff  without  the  consent  of  the  defendant. 
The  course  in  the  latter  of  such  cases  is,  to  strike  out  his  name 
as  plaintiff,  and  make  him  a  defendant;  and,  in  the  former,  to 
file  a  cross-bill."* 

§  3G2.  Rule  in  civil  and  criminal  cases  the  same.  The  princi- 
ples which  govern  in  the  admission  or  exclusion  of  parties  as  wit- 
nesses in  civil  cases  are  in  general  applicable,  with  the  like  force, 
to  criminal  prosecutions,  except  so  far  as  they  are  affected  by  par- 
ticular legislation,  or  by  considerations  of  public  policy.  In  these 
cases,  the  State  is  the  party  prosecuting,  though  the  process  is 
usually,  and  in  some  cases  always,  set  in  motion  by  a  private 
individual,  commonly  styled  the  prosecutor.  In  general,  this  in- 
dividual has  no  direct  and  certain  interest  in  the  event  of  the 
prosecution;  and  therefore  he  is  an  admissible  witness.  .  For- 
merly, indeed,  it  was  supposed  that  he  was  incompetent,  by  rea- 
son of  an  indirect  interest  arising  from  the  use  of  the  record  of 
conviction  as  evidence  in  his  favor  in  a  civil  suit;  and  this  opin- 
ion was  retained  down  to  a  late  period  as  applicable  to  cases  of 
forgery,  and  especially  to  indictments  for  perjury.  But  it  is  now 
well  settled,  as  will  hereafter  more  particularly  be  shown, ^  that 
the  record  in  a  criminal  prosecution  cannot  be  used  as  evidence 
in  a  civil  suit,  either  at  law  or  in  equity,  except  to  prove  the  mere 
fact  of  the  adjudication,  or  a  judicial  confession  of  guilt  by  the 
party  indicated. ^  The  prosecutor,  therefore,  is  not  incompetent 
on  the  ground  that  he  is  a  party  to  the  record ;  but  whether  any 


practiee.    Jil.  p.      ,    _ 

In  some  of  the  United  States  this  has  aheadv  been  done  bv  statute.  See  New  York, 
Code  of  Practice,  §§  390,  395,  396  ( lilatchford's  ed.)  ;  Ohio,  Rev.  Stat.  1841,  c.  87, 
§  26  ;  Missouri,  Rev.  Stat.  1845,  c.  137,  art.  2,  §§  14,  15  ;  New  Jersey,  Rev  Stat.  1846, 
tit.  23,  c.  1,  §  40  ;  Texas,  Hartley's  Dig.  arts.  735,  739  ;  Wisconsin,  Rev.  Stat.  1849, 
c.  84,  §  30  ;  California,  Rev.  Stat.  1850,  c.  142,  §§  296-303. 

<  1  Smith's  Ch.  Pr.  343,  344 ;  1  Hoffman's  Ch.  Pr.  485-488.  See  further,  Gresley 
on  Evid.  242-244  ;  2  Mad.  Chan.  415,  416  ;  Neilson  v.  McDonald,  6  Johns.  Ch.  201  ; 
Souverbye  v.  Arden,  1  Johns.  Ch.  240  ;  2  Daniel's  Ch.  Pr.  455,  456  ;  Piddoek  v. 
Brown,  3  P.  W.  288 ;  Murray  v.  Sliadwell,  2  V.  &  B.  401  ;  HoiTm.  Master  in  Chanc. 
18,  19  ;  Cotton  v.  Luttrell,  1  Atk.  451. 

i  Infra,  §  537. 

2  Rex  V.  Boston,  4  East,  572  ;  Bartlett  v.  Pickers^ill,  Id.  577,  n.  ;  Gibson  v.  Mc- 
Carty,  Cas.  temp.  Hardw.  311  ;  Richardson  v.  Williams,  12  Mod.  319  ;  Reg.  v.  Moreu, 
36  Leg.  Obs.  69  ;  11  Ac].  &  El.  1028  ;  ivfra,  §  537.  The  exception  which  had  grown 
up  in  the  case  of  forgery  was  admitted  to  be  an  anomaly  in  the  law,  in  4  East,  582,  per 
Lord  Ellenborough,  and  in  4  B.  &  Aid.  210,  per  Abbott,  C.  J.  ;  and  was  finally  re- 
moved by  the  declaratory  act,  for  such  in  effect  it  certainly  is,  of  9  Geo.  IV.  c.  32,  §  2. 
In  this  country,  with  the  exception  of  a  few  early  cases,  {Xv  iiarty  to  the  forged  instru- 
ment has  been  lield  admissible  as  a  witness,  on  the  general  principles  of  tlie  criminal 
law.  See  Commonwealth  v.  Snell,  3  Mass.  82  ;  People  v.  Dean,  6  Cowen.  27  ; 
Furber  r.  Milliard,  2  N.  H.  480 ;  Respublica  v.  Ross.  2  Dall.  239  ;  State  v.  Foster. 
3  McCord,  442. 


CHAP.    II.]  COMPETENCY   OP   WITNESSES.  601 

interest  which  he  may  have  in  the  conviction  of  the  offender  is 
sufficient  to  render  him  incompetent  to  testify  will  be  considered 
more  appropriately  under  the  head  of  incompetency  from  interest.^ 
§  363.  Defendants  in  criminal  cases.  In  regard  to  defendants  in 
criminal  cases,  if  the  State  would  call  one  of  them  as  a  witness 
against  others  in  the  same  indictment,  this  can  be  done  only  by 
discharging  him  from  the  record;  as,  by  the  entry  of  a  nolle 
prosequi^  or,  by  an  order  for  his  dismissal  and  discharge,  where 
he  has  pleaded  in  abatement  as  to  his  own  person,  and  the  plea 
is  not  answered  ;  2  or,  by  a  verdict  of  acquittal,  where  no  evidence, 
or  not  sufficient  evidence,  has  been  adduced  against  him.  In  the 
former  case,  where  there  is  no  proof,  he  is  entitled  to  the  verdict; 
and  it  may  also  be  rendered  at  the  request  of  the  other  defend- 
ants, who  may  then  call  him  as  a  witness  for  themselves,  as  in 
civil  cases.  In  the  latter,  where  there  is  some  evidence  against 
him,  but  it  is  deemed  insufficient,  a  separate  verdict  of  acquittal 
may  be  entered,  at  the  instance  of  the  prosecuting  officer,  who 
may  then  call  him  as  a  witness  against  the  others.^  On  the  same 
principle,  where  two  were  indicted  for  assault,  and  one  submitted 
and  was  fined,  and  paid  the  fine,  and  the  other  pleaded  "  not 
guilty,"  the  former  was  admitted  as  a  competent  witness  for  the 
latter,  because  as  to  the  witness  the  matter  was  at  an  end'.*  But 
the  matter  is  not  considered  as  at  an  end,  so  as  to  render  one  de- 
fendant a  competent  witness  for  another,  by  anything  short  of  a 
final  judgment  or  a  plea  of  guilty.^  (a)  Therefore,  where  two  were 
jointly  indicted  for  uttering  a  forged  note,  and  the  trial  of  one  of 
them  was  postponed,  it  was  held,  that  he  could  not  be  called  as  a 
witness  for  the  other. ^  So,  where  two,  being  jointly  indicted  for 
an  assault,  pleaded  separately  "not  guilty,"  and  elected  to  be 
tried  separately,  it  was  held,  that  the  one  tried  first  could  not 
call  the  other  as  a  witness  for  him.'^ 

8  Tnfm,  §§  412-414. 

1  Bull.  N.  P.  285  ;  Cas.  temp.  Hardw.  163. 

2  Rex  V.  Shei-nian,  Cas.  temp.  Hardw.  303. 

^  Rex  V.  Rowland,  Ry.  &  M.  401  ;  Rex  v.  Mutineers  of  the  "  Bounty,"  cited  arg. 
1  East,  312,  313. 

<  Rex  V.  Fletcher,  1  Stra.  633  ;  Reg.  v.  Lyons,  9  C.  &  P.  55.5  ;  Reg.  v.  Williams,  8 
C.  &  P.  284  ;  supra,  §  3r.8  ;  Commonvvealth  v.  Ea.stman,  1  Cush.  189. 

5  Reg.  V.  Hinks.  1  Denis.  C.  C.  84. 

6  Coninionwealth  v.  Maroh,  10  Pick.  57. 

■^  People  V.  Bill,  10  Joiins.  95.  In  Rex  v.  Lafone,  5  Esp.  154,  where  one  defend- 
ant suffered  judgment  by  default,  Lord  EUenborough  held  him  incomjietent  to  testify 
for  the  others  ;  apparently  on  the  ground,  that  there  was  a  community  of  guilt,  and 

{«)  Where  two  defendants  were  jointly  held  to  be  a  competent  witness  for  the 
indicted  for  an  assault,  and  one  was  de-  other  defendant.  State  v.  Worthing,  31 
faulted  on  his  recognizance,  his  wife  was    Me.  62. 


502  LAW    OF   EVIDENCE.  [PART   III. 

§  364.  Functions  of  judge  and  witness  incompatible.  Before  we 
dismiss  the  subject  of  parties,  it  may  be  proper  to  take  notice  of 
the  case  where  the  facts  are  personally  known  by  the  judge  before 
whom  the  cause  is  tried.  And  whatever  difference  of  opinion 
may  once  have  existed  on  this  point,  it  seems  now  to  be  agreed 
that  the  same  person  cannot  be  both  witness  and  judge  in  a  cause 
which  is  on  trial  before  him.  If  he  is  the  sole  judge,  he  cannot  be 
sworn;  and,  if  he  sits  with  others,  he  still  can  hardly  be  deemed 
capable  of  impartially  deciding  on  the  admissibility  of  his  own 
testimony,  or  of  weighing  it  against  that  of  another. ^  Whether 
his  knowledge  of  common  notoriety  is  admissible  proof  of  that 
fact  is  not  so  clearly  agreed. ^  On  grounds  of  public  interest  and 
convenience,  a  judge  cannot  be  called  as  a  witness  to  testify  to 
what  took  place  before  him  in  the  trial  of  another  cause, ^  though 
he  may  testify  to  foreign  and  collateral  matters  which  happened 
in  his  presence  while  the  trial  was  pending  or  after  it  was  ended. "* 
In  regard  to  attorneys,  it  has  in  England  been  held  a  very  objec- 
tionable proceeding  on  the  part  of  an  attorney  to  give  evidence 
when  acting  as  advocate  in  the  cause ;  and  a  sufficient  ground  for 
a  new  trial.  ^  But  in  the  United  States  no  case  has  been  found 
to  proceed  to  that  extent ;  and  the  fact  is  hardly  ever  known  to 
occur. 

§  365.  Mental  deficiencies.  We  proceed  now  to  consider  the 
SECOND   CLASS  of  pcrsons  incompetent   to   testify  as   witnesses; 

that  the  offence  of  one  was  the  offence  of  all.  But  no  authority  was  cited  in  the  case, 
and  the  decision  is  at  variance  with  the  general  doctrine  in  cases  of  tort.  The  reason 
aiven,  moreover,  assumes  the  very  point  in  dispute,  namely,  whether  there  was  any 
Suilt  at  all.  The  indictment  was  for  a  misdemeanor,  in  obstructing  a  revenue  officer 
Tn  the  execution  of  his  duty.  See  1  Phil.  Evid.  68.  But  where  two  were  jointly  in- 
dicted for  an  assault  and  battery,  and  one  of  them,  on  motion,  was  tried  first,  the  wife 
of  the  other  was  held  a  competent  witness  in  his  favor.  Jloffit  v.  State,  2  Humph.  99. 
And  see  Jones  v.  State,  1  Kellv  (Ga.),  610  ;  Commonwealth  «;.  Hansen,  2  Ashm.  31  ; 
supra,  §  335,  n.  ;  State  v.  Worthing,  1  Reddingt.  (31  Me.)  62. 

1  Ross  V.  Buhler,  2  Martin,  N.  s.  313.  So  is  the  law  of  Spain  (Partid.  3,  tit.  16, 
1.  19  ;  1  Moreau  &  Carleton's  Tr.  p.  200)  ;  and  of  Scothand.  Glassford  on  Evid.  p.  602  ; 
Tait  on  Evid.  432  ;  Stair's  Inst,  book  iv.  tit.  45,  4  ;  Erskine's  Inst,  book  iv.  tit.  2,  33. 
If  his  presence  on  the  bench  is  necessary  to  the  legal  constitution  of  the  court,  he  can- 
not be  sworn  as  a  witness,  even  by  consent  ;  and  if  it  is  not,  and  his  testimony  is  ne- 
cessary in  the  cause  on  trial,  lie  should  leave  the  bench  until  the  trial  is  finished. 
Morss  V.  Morss,  4  Am.  Law  Rep.  N.  s.  611.  This  principle  has  not  been  extended  to 
jurors.  Though  the  jurv  may  use  their  general  knowledge  on  the  subject  of  any  ques- 
tion before  them  ;  yet,  if  any  juror  has  a  particular  knowledge,  as  to  which  he  can  tes- 
tify, he  must  be  sworn  as  a  witness.  Rex  v.  Rosser,  7  C.  &  P.  648  ;  Stones  v.  Byron, 
4  Dowl.  &  L.  393.      See  infra,  §  386,  n.  ,        .  ,.      ,        -^ 

2  Lord  Stair  and  Mr.  Erskine  seem  to  have  been  of  opinion  that  it  was,  unless  it 
be  overruled  bv  pregnant  contrary  evidence."  But  Mr.  Glassford  and  Mr.  Tait  are  of 
the  contrary  opinion.     See  the  places  cited  in  the  preceding  note. 

3  Reg.  V.  Gazard,  8  C.  &  P.  595,  per  Patteson,  J. 

*  Rex  V.  Earl  of  Thanet,  27  Howell's  St.  Tr.  847,  848.  See  supra,  §  252,  as  to  the 
admissibility  of  jurors. 

6  Dunn  V.  Packwood,  11  Jur.  242  a. 


CHAP.  II.]  COMPETENCY   OP   WITNESSES,  503 

namely,  that  of  persons  deficient  in  understanding.  Wc  have 
already  seen,^  that  one  of  the  main  securities,  which  the  law  has 
provided  for  the  purity  and  truth  of  oral  evidence,  is,  that  it  be 
delivered  under  the  sanction  of  an  oath;  and  that  this  is  none 
other  than  a  solemn  invocation  of  the  Supreme  Being,  as  the 
Omniscient  Judge.  The  purpose  of  the  law  being  to  lay  hold  on 
the  conscience  of  the  witness  by  this  religious  solemnity,  it  is  ob- 
vious, that  persons  incapable  of  comprehending  the  nature  and 
obligation  of  an  oath  ought  not  to  be  admitted  as  witnesses.  The 
repetition  of  the  words  of  an  oath  would,  in  their  case,  be  but  an 
unmeaning  formality.  It  makes  no  difference  from  what  cause 
this  defect  of  understanding  may  have  arisen ;  nor  whether  it  be 
temporary  and  curable,  or  permanent ;  whether  the  party  be  hope- 
lessly an  idiot,  or  maniac,  or  only  occasionally  insane,  as  a  lunatic ; 
or  be  intoxicated ;  or  whether  the  defect  arises  from  mere  imma- 
turity of  intellect,  as  in  the  case  of  children,  (a)  While  the  defi- 
ciency of  understanding  exists^  be  the  cause  of  what  nature  soever, 
the  person  is  not  admissible  to  be  sworn  as  a  witness.  But  if 
the  cause  be  temporary,  and  a  lucid  interval  should  occur,  or  a 
cure  be  effected,  the  competency  also  is  restored.  2(6) 

1  Supra,  §  327. 

2  6  Com.  Dig.  351,  352,  Testmoiipie,  A,  1  ;  Livingston  v.  Kiersted,  10  Johns.  362  ; 
Evans  v.  Hettich,  7  Wheat.  453,  470  ;  Wliite's  Case.  2  Leach,  Cr.  Cas.  430  ;  Tait  on 
Evid.  pp.  342,  343.  The  fact  of  want  of  understanding  is  to  be  proved  by  the  object- 
ing party,  by  testimony  aliunde.  Robinson  v.  Dana,  16  Vt.  474.  See,  as  to  intoxi- 
cation, Hartford  v.  Palmer,  16  Johns.  143;  Gebhart  v.  Shindle,  15  S.  &  R.  235  ; 
Heinec.  ad  Pandect  Par.  3,  §  14.  Whether  a  monomaniac  is  a  competent  witness 
is  a  point  not  known  to  have  been  directly  decided  ;  and  uj)on  which  text-writers  differ 
in  opinion.  Mr.  Roscoe  deems  it  the  safest  rule  to  exclude  their  testimony.  Rose. 
Crim.  Evid.  p.  128.  Mr.  Best  considers  this  "  hard  measure."  Best,  Princ.  Evid. 
p.  163.  In  a  I'ccent  case  before  the  Privy  Council,  where  a  will  was  contested  on  the 
ground  of  incapacity  in  the  mind  of  the  testator,  it  was  held,  that  if  the  mind  is  un- 
sound on  one  subject,  and  this  unsoundness  is  at  all  times  existing  upon  that  subject, 
it  is  erroneous  to  sui)pose  the  mind  of  such  a  person  really  sound  on  other  subjects  ; 
and  that  therefore  the  will  of  such  a  jjcrson,  though  apparently  ever  so  rational  and 
proper,  was  void.  Waring  v.  Waring,  12  Jur.  947,  Priv.  C.  Here,  the  power  of  per- 
ceiving facts  is  sound,  but  the  faculty  of  comparing  and  of  judging  is  impaired.  But 
where,  in  a  trial  for  manslaughter,  a  lunatic  patient  was  admitted  as  a  witness,  who 
had  been  confined  in  a  lunatic  asylum,  and  who  labored  under  the  delusion,  both  at 
the  time  of  the  transaction  and  of  the  trial,  that  he  was  possessed  by  twenty  thousand 
spirits,  but  whom  the  medical  witness  believed  to  be  capable  of  giving  an  account  of 
any  transaction  that  happened  before  his  eyes,  and  who  appeared  to  understand  the 
obligation  of  an  oath,  and  to  believe  in  future  rewards  and  punishments,  —it  was  held, 
that  his  testimony  was  properly  received.     And  that  where  a  person,  under  an  insane 

(a]  In  many  of  the  States,  these  vari-  (b)  The  question  of  the  competency  of 

ous  cases  of  incompetencv  are  embodied  the  witness  is  for  the  judge  to  decide,  and 

in  the  statutes.     See  schedule  of  statutes,  he  may  conduct  the  examination   of  the 

ante,  §   329,    note  a.     The  effect  of  this  witness  as  he  sees  fit,    to  ascertain  that 

enactment   generally,    does  not  alter   the  competency.    Cannady  v.  Lynch,  27  Minn. 

common-law  rules,  and  the   common-law  435. 
rules  are  in  force  where  the  statute  con- 
tains no  mention  of  them. 


504  LAW    OP   EVIDENCE.  [PART   HI. 

§  366.  Deaf  and  dumb  persons.  In  regard  to  persons  deaf  and 
dumb  from  their  birth,  it  has  been  said  that,  in  presumption  of 
law,  they  are  idiots.  And  though  this  presumption  has  not  now 
the  same  degree  of  force  which  was  formerly  given  to  it,  that  un- 
fortunate class  of  persons  being  found  by  the  light  of  modern 
science  to  be  nmch  more  intelligent  in  general,  and  susceptible 
of  far  higher  culture,  than  was  once  supposed;  yet  still  the  pre- 
sumption is  so  far  operative,  as  to  devolve  the  burden  of  proof  on 
the  party  adducing  the  witness,  to  show  that  he  is  a  person  of 
sufficient  understanding.  This  being  done,  a  deaf  mute  may  be 
sworn  and  give  evidence,  by  means  of  an  interpreter. ^  If  he  is 
able  to  communicate  his  ideas  perfectly  by  writing,  he  will  be 
required  to  adopt  that,  as  the  more  satisfactory,  and  therefore 
the  better  method ;  ^  but  if  his  knowledge  of  that  method  is  im- 
perfect, he  will  be  permitted  to  testify  by  means  of  signs. ^ 

§  367.  Children.  But  in  respect  to  children^  there  is  no  pre- 
cise age  within  which  they  are  absolutely  excluded,  on  the  pre- 
sumption that  they  have  not  sufficient  understanding.  At  the  age 
of  fourteen,  every  person  is  presumed  to  have  common  discretion 
and  understanding,  until  the  contrary  appears;  but  under  that 
age  it  is  not  so  presumed ;  and  therefore  inquiry  is  made  as  to  the 
degree  of  understanding,  which  the  child  offered  as  a  witness 
may  possess ;  and  if  he  appears  to  have  sufficient  natural  intelli- 
gence, and  to  have  been  so  instructed  as  to  comprehend  the  na- 
ture and  effect  of  an  oath,  he  is  admitted  to  testify,  whatever  his 
age  may  be.  ^  (a)     This  examination  of  the  child,  in  order  to  ascer- 

delusion,  is  offered  as  a  witness,  it  is  for  tlie  jud^'e  at  the  time  to  decide  niton  his  com 
potency  us  a  witness,  and  for  the  jnrv  to  judge  of  the  credibility  of  his  evidence.  Keg, 
V.  Hill,  15  Jur.  470  ;  5  Eng.  Law  &  Eq.  547  ;  5  Cox,  C.  C.  259.  (c) 

1  Ruston's  Case,  1  Leach,  Cr.  Cas.  408  ;  Tait  on  Evid.  343  ;  1  Russ.  on  Crimes, 
p.  7  ;  1  Hale,  P.  C.  34.  Loi'd  Hale  refers,  for  authority  as  to  the  ancient  presumption, 
to  the  Laws  of  Knight  Alfred,  c.  14,  which  is  in  these  words  :  "Si  (]uis  mutus  vel  surdus 
natus  sit,  ut  peccata  sua  contiteri  nequeat,  nee  inficiari,  eniendet  ])ater  scelera  ipius.'" 
Vid.  Leges  Barbaror.  Antiq.  vol.  iv.  p.  249  ;  Ancient  Laws  and  Statutes  of  England, 
vol.  i.  ]).  71. 

2  Morrison  v.  Lennard,  3  C.  &  P.  127. 

3  State  V.  De  Wolf,  8  Conn.  93  ;  Commonwealth  v.  Hill,  14  Mass.  207 ;  Snyder  v. 
Nations,  5  Blackf.  295. 

1  McNally's  Evid.  p.  149,  c.  11  ;  Bull.  N.  P.  293  ;  1  Hale,  P.  C.  302  ;  2  Russ.  on 
Crimes,  p.  590  ;  Jackson  v  Gridley,  18  Johns.  98. 

(c)  Holcomb  V.  Holcomb,  28  Conn.  177.  case  where  the  trial  was  on  an  indictment 

I  f  the  witness  can  discern  right  from  wrong,  for  incest,  the  person  upon  whom  the  crime 

and  has  power  to  speak  from  memorv,  he  was  committed,  was  thirteen  years  of  age. 

is  competent.    Coleman  v.  Com.,  25  Graft.  When  she  was  offered  by  the  prosecution 

(Va.)  865.  as  a  witness  the  defendant  objected  that 

{a)  McGuire  v.  People,   44  Mich.  286 ;  she  was  ignorant  of  the  nature  and  obliga- 

McGufT  i\  State,   83   Ala.   151;    State  v.  tion  of  an  oath.    In  reply  to  the  presiding 

Severson,  43  N.   West.  Rep.   533.     In  a  judge,  she  said  she  knew  the  oath  was  to 


CHAP.    II.]  COMPETENCY    OF   WITNESSES.  605 

tain  his  capacity  to  be  sworn,  is  made  by  the  judge  at  his  discre- 
tion ;  and  though,  as  has  been  just  said,  no  age  has  been  precisely 
fixed,  within  which  a  child  shall  be  conclusively  presumed  in- 
capable, yet  in  one  case  a  learned  judge  promjjtly  rejected  the 
dying  declarations  of  a  child  of  four  years  of  age,  observing,  that 
it  was  quite  impossible  that  she,  however  precocious  her  mind, 
could  have  had  that  idea  of  a  future  state  which  is  necessary  to 
make  such  declarations  admissible. ^  On  the  other  hand,  it  is 
not  unusual  to  receive  the  testimony  of  children  under  nine,  and 
sometimes  even  under  seven  years  of  age,  if  they  appear  to  be  of 
sufficient  understanding;'^  and  it  has  been  admitted  even  at  the 
age  of  five  years. "*  If  the  child,  being  a  principal  witness,  appears 
not  yet  sufficiently  instructed  in  the  nature  of  an  oath,  the  c^urt 
Avill,  in  its  discretion,  put  off  the  trial,  that  this  may  be  done.^ 

2  Rex  V.  Pike,  3  C.  &  P.  598  ;  People  v.  McNair,  21  Wend.  608.  Neither  can  the 
declarations  of  such  a  child,  if  living,  be  received  in  evidence.  Rex  v.  Brasier,  1  East, 
P.  C.  443.(6) 

3  1  Kast,  P.  C.  442  ;  Commonwealth  v.  Hutchinson,  10  Mass.  225  ;  McNally's 
Evid.  p.  154  ;  State  v.  Whittier,  8  Shepl.  341. 

*  Rex  V.  Braiser,  1  Leach,  Cr.  Cas.  199  ;  s.  c.  Bull.  N.  P.  293  ;  s.  c.  1  East,  P.  C. 
443. 

*  McNally's  Evid.  p.  154  ;  Rex  v.  White,  2  Leach,  C.  Cas.  430,  n.  a;  Rex  o.  Wade, 
1  Mood.  Cr.  Cas.  86.  But  in  a  late  case,  before  Mr.  Justice  Patteson,  the  learned  judge 
said,  that  he  must  be  satisfied  that  the  child  felt  the  binding  obligation  of  an  oath, 
from  the  general  course  of  her  religious  education;  and  that  the  effect  of  the  oath  upon 
the  conscience  should  arise  from  religious  feelings  of  a  permanent  nature,  and  not  merely 
from  instructions,  confined  to  the  nature  of  an  oath,  recently  communicated,  for  the  pur- 
pose of  the  particular  trial.  And  therefore,  the  witness  having  been  visited  but  twice 
by  a  clergyman,  who  had  given  her  some  instructions  as  to  the  nature  of  an  oath,  but 
still  she  had  but  an  imperfect  understanding  on  the  subject,  her  evidence  was  rejected. 
Rex  V.  Williams,  7  C.  &  P.  320.  In  a  more  recent  case,  where  the  principal  witness  for 
the  prosecution  was  a  female  child  of  six  years  old,  wholly  ignorant  of  the  nature  of  an 
oath,  a  ]iosti)onement  of  the  trial  was  moved  for,  that  she  might  be  instructed  on  that 
subject  ;  but  Pollock,  C.  B.,  refused  the  motion  as  tending  to  endanger  the  safety  of 
public  justice  ;  observing  that  more  probably  would  be  lost  in  memory,  than  would  be 
gained  in  point  of  religious  education  ;  adding,  however,  that  in  cases  where  the  intel- 

tell  the  truth  and  that  she  would  be  pun-  discretion  to  allow  the  witness  to  be  in- 
ished  if  she  did  not  tell  the  truth  after  structed,  in  accordance  with  the  prevail- 
taking  it,  but  she  did  not  know  by  whom  ing  practice,  if  her  age  and  mental  ca- 
or  how.  The  prosecution  did  not  then  offer  pacity  were  sufficient  to  receive  such  in- 
her  as  a  witness,  and  the  judge  postponed  struction  intelligently.  The  court,  how- 
decision  as  to  her  competency,  that  she  ever,  based  its  opinion  upon  the  point  that 
might  be  further  instructed.  The  next  the  question  of  the  competency  of  the 
day  she  was  offered  aa  a  witness  and  found  witness  really  arose  when  she  was  actually 
competent,  iiaving  been  instructed,  as  ap-  offered  as  a  witness,  and  that  the  presid- 
peared  by  her  examination,  by  a  Christian  ing  judge,  determined  this  preliminary 
minister  since  the  adjournment  of  the  question  upon  the  facts  in  evidence  relat- 
court.  The  defendant  argued  before  the  ing  to  her  understanding  of  tlie  oath,  and 
Supreme  Court  that  the  witness  should  that  the  question  as  to  the  competency  of 
know  about  the  nature  of  the  oath  inde-  the  witness,  being  a  preliminary  (juestiou 
pendently  of  the  necessities  of  the  trial  of  fact  as  to  the  admissibility  of  evidence, 
and  could  not  be  especially  instructed  for  would  not  be  reviewed  by  the  Supreme 
that  purpose.  The  court  reviewed  the  Court.  Com.  v.  Lynes,  142  Mass.  577. 
practice  as  stated  above,  and  stated  tliat  (b)  Smith  v.  State,  41  Tex.  352. 
the  presiding  judge  had  authority  in  his 


506  LAW    OF   EVIDENCE.  [PART   III. 

But  whether  the  trial   ought  to  be  put  off  for  the  purpose  of 
instructing  an  adult  witness  has  been  doubted.^ 

§  368.  Moral  deficiencies.  The  THIRD  CLASS  of  persons  incom- 
petent to  testify  as  witnesses  consists  of  those  who  are  insensible 
TO  THE  OBLIGATIONS  OP  AN  OATH,  from  dcfcct  of  rcHgious  senti- 
ment and  belief.  The  very  nature  of  an  oath,  it  being  a  religious 
and  most  solemn  appeal  to  God,  as  the  Judge  of  all  men,  presup- 
poses that  the  witness  believes  in  the  existence  of  an  omniscient 
Supreme  Being,  who  is  "the  rewarder  of  truth  and  avenger  of 
falsehood ;  "  *  and  that,  by  such  a  formal  appeal,  the  conscience 
of  the  witness  is  affected.  Without  this  belief,  the  person  cannot 
be  subject  to  that  sanction,  which  the  law  deems  an  indispensable 
test  of  truth.  2  It  is  not  sufficient,  that  a  witness  believes  himself 
bound  to  speak  the  truth  from  a  regard  to  character,  or  to  the 
common  interests  of  society,  or  from  fear  of  the  punishment 
which  the  law  inflicts  upon  persons  guilty  of  perjury.  Such 
motives  have  indeed  their  influence,  but  they  are  not  considered 
as  affording  a  sufficient  safeguard  for  the  strict  observance  of 
truth.  Our  law,  in  common  with  the  law  of  most  civilized  coun- 
tries, requires  the  additional  security  afforded  by  the  religious 
sanction  implied  in  an  oath;  and,  as  a  necessary  consequence, 
rejects  all  witnesses,  who  are  incapable  of  giving  this  security.  ^ 
Atheists,  therefore,  and  all  infidels,  that  is,  those  who  profess 
no  religion  that  can  bind  their  consciences  to  speak  truth,  are 
rejected  as  incompetent  to  testify  as  witnesses.^  (a) 

lect  was  sufficiently  matured,  but  the  education  only  had  been  neglected,  a  postpoue- 
inent  might  be  very  proper.     Reg.  v.  Nicholas,  2  C.  &  K.  246. 
6  See  Rex  v.  Wade,  1  Mood.  Cr.  Cas.  86. 

1  Per  Lord  Hardvvicke,  1  Atk.  48.  The  opinions  of  the  earlier  as  well  as  later 
iurists,  concerning  the  nature  and  obligations  of  an  oath,  are  quoted  and  discussed 
inueh  at  large,  in  Omichund  v.  Barker,  1  Atk.  21,  and  in  Tyler  on  Oaths,  passim,  to 
which  the  learned  reader  is  referred. 

2  1  Stark.  Evid.  22.  "The  law  is  wise  in  requiring  the  highest  attainable  sanction 
for  the  truth  of  testimony  given;  and  is  consistent  in  rejecting  all  witnesses  incapable 
of  feelinf'  this  sanction,  or  of  receiving  this  test;  whetiier  this  incapacity  arises  from  the 
imbecility  of  their  understanding,  or  from  its  perversity.  It  does  not  im}mte  guilt  or 
blame  to  eitiier.  If  the  witness  is  evidently  intoxicated,  he  is  not  allowed  to  be  sworn; 
because,  for  the  time  being,  he  is  evidently  incapable  of  feeling  the  force  and  obligation 
of  an  oath.  The  non  compos,  and  the  infant  of  tender  age,are  rejected  lor  the  same  rea- 
son, but  without  blame.  The  atheist  is  also  rejected,  because  he,  too,  is  incapable  of 
realizincr  the  obligation  of  an  oath,  in  consequence  of  his  unbelief.  The  law  looks  only 
to  the  fact  of  incapacity,  not  to  the  cause,  or  the  manner  of  avowal.  Whether  it  be 
calmly  insinuated  with  the  elegance  of  Gibbon,  or  roared  forth  in  the  disgusting 
blasphemies  of  Paine,  still  it  is  atheism  ;  and  to  require  the  mere  ioiniahty  of  an  oath 
from  one  who  avowedly  despises,  or  is  incapable  of  feeling,  its  peculiar  sanction,  would 
be  but  a  mockerv  of  justice."     1  Law  Reporter,  pp.  346,  347. 

3  1  Phil.  Evid.  ]b  (9th  ed.). 

♦  Bull.  N.  P.  292  ;  1  Stark.  Evid.  22  ;  1  Atk.  40,  45  ;  1  Phil.  Evid.  10  (9th  ed.). 

{a)  In  addition  to  these  States  men-  ished  incompetency  from  lack  of  religious 
tioned  in  note  2,  the  following  have  abol-     belief  :—  Arizona  :  Comp.  Laws,  1877,  p. 


CHAP.    II.]  COiMPETENCY    OF   WITNESSES.  607 

§  3G9.  Nature  of  religious  faith  required.  As  to  the  nature  and 
degree  of  religious  faith  required  in  a  witness,  the  rule  of  law,  as 
at  present  understood,  seems  to  be  this,  that  the  person  is  compe- 
tent to  testify,  if  he  believes  in  the  being  of  God,  and  a  future 
state  of  rewards  and  punishments;  that  is,  that  Divine  punish- 
ment will  be  the  certain  consequence  of  perjury.  It  may  be  con- 
sidered as  now  generally  settled,  in  this  country,  that  it  is  not 
material,  whether  the  witness  believes  that  the  punishment  will 
be  inflicted  in  this  world,  or  in  the  next.  It  is  enough  if  he  has 
the  religious  sense  of  accountability  to  the  Omniscient  Being, 
who  is  invoked  by  an  oath.^ 

§  370.  Moral  competency  presumed.  It  should  here  be  observed 
that  defect  of  religious  faith  is  never  presumed.  On  the  contrary, 
the  law  presumes  that  every  man  brought  up  in  a  Christian  land, 
where  God  is  generally  acknowledged,  does  believe  in  him,  and 
fear  him.  The  charity  of  its  judgment  is  extended  alike  to  all. 
The  burden  of  proof  is  not  on  the  party  adducing  the  witness,  to 
prove  that  he  is  a  believer;  but  it  is  on  the  objecting  party,  to 
prove  that  he  is  not.  Neither  does  the  law  presume  that  any 
man  is  a  hypocrite.  On  the  contrary,  it  presumes  him  to  be  what 
he  professes  himself  to  be,  whether  atheist  or  Christian;  and  the 
state  of  a  man's  opinions,  as  well  as  the  sanity  of  his  mind,  being 

The  ohjection  of  incompetency,  from  the  want  of  belief  in  the  existence  of  God,  is 
abolished,  as  it  seems,  in  Michigan,  bj'  force  of  the  statute  which  enacts  that  no  person 
shall  be  deemed  incompetent  as  a  witness  "  on  account  of  his  opinions  on  the  subject 
of  religion."  Rev.  Stat.  1846,  c.  102,  §96.  So  in  Maine,  Hev.  Stat.  c.  82,  Rev. 
Stat.  1871,  §  81.  And  in  Wisconsin,  Const,  art.  1,  §18.  And  in  Missouri,  Rev.  Stat. 
1845,  c.  186,  §21.  And  in  Mass.  Gen.  Stat.  c.  131,  §  12,  Pub.  Stat.  1882,  c.  169, 
§  18.  In  some  other  States,  it  is  made  sufficient,  by  statute,  if  the  witness  believes  in 
the  existence  of  a  Supreme  Being.  Connecticut,  Rev.  Stat.  1849,  tit.  1,  §  140,  Gen. 
Stat.  1875,  p.  440  ;  New  Hampshire,  Rev.  Stat.  1842,  c.  188,  §  9,  Gen.  Laws,  1878, 
c.  228,  §  12.  In  others,  it  is  requisite  that  tiie  witness  should  believe  in  the  existence 
of  a  Supreme  Being,  tvho  loill  punish  fit/se  swairing.  New  York,  Rev.  Stat.  vol.  ii. 
p.  505  (3d  ed. );  Missouri,  Rev.  Stat.  1835,  p.  419. 

1  The  proper  test  of  the  competency  of  a  witness  on  the  score  of  a  religions  belief 
was  settled,  upon  great  consideration,  in  the  case  of  Omichund  v.  Barker,  Willes,  545, 
8.  c.  1  Atk.  21,  to  be  the  belief  of  a  God,  and  that  he  will  reward  and  punish  us  accord- 
ing to  our  deserts.  This  rule  was  recognized  in  Butts  v.  Swartwood,  2  Cowen,  431  ; 
People  V.  Matteson,  2  Cowen,  433,  473,  n.  ;  and  by  Story,  J.,  in  Wakefield  v.  Ross, 
5  Mason,  18  ;  s.  p.  9  Dane's  Abr.  317;  and  see  Brock  v.  Milligan,  10  Ohio,  125;  Arnold 
V,  Arnold,  13  Vt.  362.  Whether  any  belief  in  a  future  state  of  existence  is  necessary, 
provided  accountability  to  God  in  this  life  is  acknowledged,  is  not  perfectly  clear.     In 

469;  California,  Hittell's  Code,  §11879;  §5240),  Tennessee  Stat.  (1871,  §3807),  and 

Indiana,   Rev.   Stat.    1881,   §505;    Min-  other  States,  where  the  statutes  enact  that 

nesota,  Stat.  1878,    p.   792,  §7;    Missis-  "all  persons,"  or  "every  human  being," 

sippi.   Rev.    Code.  1880,   §  1604;   Texas,  or   "every  one   who   can   understnnd  an 

Rev.  Stat.    1879,  art.  2249  ;  Grim.  Coile,  oath,"  shall  be  competent,  probably  reli- 

art.     736;    Vermont,    Rev.    Stat.     1880,  gious  disbelief  would  not  ail'ect  the  compe- 

§    1007.      In    Iowa    (Rev.     Code,    1880,  tencv  of  the  witness. 
§  3636),  Ohio   (Rev.  Stat.  1880,  (2d  ed.) 


508  LAW   OF   EVIDENCE.  [PART   III. 

once  proved,  is,  as  wc  have  already  seen,^  presumed  to  continue 
unchanged,  until  the  contrary  is  shown.  The  state  of  his  reli- 
gious belief  at  the  time  he  is  offered  as  a  witness  is  a  fact  to  be 
ascertained ;  and  this  is  presumed  to  be  the  common  faith  of  the 
country,  unless  the  objector  can  prove  that  it  is  not.  The  ordi- 
nary mode  of  showing  this  is  by  evidence  of  his  declarations, 
previously  made  to  others ;  the  person  himself  not  being  inter- 
rogated ;  for  the  object  of  intei'rogating  a  witness,  in  these  cases, 
before  he  is  sworn,  is  not  to  obtain  the  knowledge  of  other  facts, 
but  to  ascertain  from  his  answers  the  extent  of  his  capacity,  and 
whether  he  has  sufficient  understanding  to  be  sworn. '^  (a) 

Commonwealth  v.  Bachelor,  4  Am.  Jurist,  81,  Tliacher,  J.,  seemed  to  think  it  was.  But 
in  Hunseom  v.  Hunscoiii,  15  Mass.  18i,  the  court  held,  that  mere  disbelief  in  a  future 
existence  went  only  to  the  credibility.  This  degree  of  tlisbelief  is  not  inconsistent  with 
the  faith  required  in  Oinicliund  v.  Barker.  The  only  case  clearly  to  the  contrary,  is 
Atwood  V.  Weltou,  7  C(jnn.  U6.  lu  Curtiss  v.  Strong,  4  Day,  51,  the  witness  did  not 
believe  in  the  obligation  of  an  oath;  and  in  Jackson  v.  Gridley,  18  Johns.  98,  he  was  a 
mere  atheist  without  any  sense  of  religion  wliatever.  All  that  was  said,  in  these  two 
cases,  beyond  the  point  in  judgment,  was  extra-judicial.  In  Maine,  a  belief  in  the  ex- 
istence of  the  Supreme  Being  was  rendered  sufficient  by  Stat.  1833,  c.  58,  without  any 
reference  to  rewards  or  punishments.  Smith  v.  Coffin,  6  Shepl.  157  ;  but  even  this 
seems  to  be  no  longer  required.  See  supra,  §  368,  n.  See  further,  People  i^.  McGarren, 
17  Wend.  460  ;  Cubbison  v.  McCreary,  2  Watts  &  Serg.  262  ;  Brock  v.  Milligan,  10 
Ohio,  121  ;  Thurston  v.  Whitney,  2  Law  Kep.  n.  s.  18. 

1  Supra,  §  42  ;  State  v.  Stinson,  7  Law  Reporter,  383. 

^  Swift's  Evid.  48  ;  Smith  v.  Coffin,  6  Shepl.  157.  It  has  been  questioned,  whether 
the  evidence  of  his  declarations  ought  not  to  be  confined  to  a  period  shortly  anterior  to 
the  time  of  proving  them,  so  that  no  change  of  opinion  might  be  presumed.  Brock  v, 
Milligan,  10  Ohio,  126,  per  Wood,  J. 

"  The  witness  himself  is  never  questioned  in  Twocfern.  practice,  as  to  his  religious  belief, 
though  formerly  it  was  otherwise  (1  Swift's  Dig.  739  ;  5  Mason,  19  ;  American  Jurist, 
vol.  iv.  j).  79,  n.).  It  is  not  allowed,  even  after  he  has  been  sworn  (The  Queen's  Case, 
2  Brod.  &  Bing.  284).  Not  because  it  is  a  question  tending  to  disgrace  him,  but  because 
it  would  be  a  personal  scrutiny  into  the  state  of  his  faith  and  conscience,  foreign  to  the 
spirit  of  our  institutions.  No  man  is  obliged  to  avow  his  belief,  but  if  he  voluntarily  does 
avow  it,  there  is  no  reason  why  the  avowal  should  not  be  proved,  like  any  other  fact.  The 
truth  and  sincerity  of  the  avowal,  and  the  continuance  of  the  belief  thus  avowed,  are 
presumed,  and  very  justly  too,  till  they  are  disproved.  If  his  opinions  have  been  sub- 
sequently changed,  this  change  will  generally,  if  not  always,  be  provable  in  the  same 
mode  (Atwood  v.  Welton,  7  Conn.  66  ;    Curtis  v.  Strong,  4  Daj',  51  ;    Swift's  Evid. 

(a)  It  seems  to  be  held  that  the  wit-  decided   in    Odell   v.    Koppee,    5    Heisk. 

ness    may  not   be    interrogated  as  to  his  (Tenn.)  88.     In  Arnd  i>.  Aniling,  53  Md. 

belief.     Shaw,  C.  J.,  in  Com.  v.  Smith,  2  192,  examination  of  the  witness  as  to  his 

Gray,  516,  says  :  "  The  want  of  such  reli-  religious   belief   was    had    by   the  judge 

gious  belief  must  be  established  by  other  before  he  offered  the  objecting  party  an 

means  than  the  examination  of  the  witness  opportunity  to  give  evidence  on  the  sub- 

npon  the  stand.      He  is  not  to  be  ques-  ject.     The  Court  of  Appeals  held  that  this 

tioned  as  to  his  religious  belief,  nor    re-  was  irregular,  yet  as  no  substantial  injury 

quired  to   divulge  his  opinion  upon  that  was  done,  the  judgment  was  affirmed, 

subject  in  answer  to  questions  put  to  him  The  question  whether  a  witness  is,  or 

while  under  examination.     If  he  is  to  be  is  not,  an  atheist,  and  so  an  incompetent 

set  aside  for  want  of  such  religious  belief,  witness,  is  a  question  of  fact  for  the  pre- 

the  fact  is  to  be  shown  by  other  witjiesses,  siding  judge  alone,  and  his  decision  is  not 

and    by   evidence    of    his   previously   ex-  open    to   excejjtion.     Com.    v.    Hills,    10 

pressed  opiiuons  voluntarily  made  known  Cush.  (Mass.)  530,  532. 
to  others  ;  "  and  this  point  was  expressly 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  509 

§  371.  "Witnesses,  how  sworn.  It  may  be  added,  in  this  place, 
that  all  witnesses  are  to  l)e  sworn  according  to  the  peculiar  cere- 
monies of  their  own  religion,  or  in  such  manner  as  they  may  deem 
binding  on  their  own  consciences.  If  the  witness  is  not  of  the 
Christian  religion,  the  court  will  inquire  as  to  the  form  in  which 
an  oath  is  administered  in  his  own  country,  or  among  those  of  his 
own  faith,  and  will  impose  it  in  that  form.  And  if,  being  a 
Christian,  he  has  conscientious  scruples  against  taking  an  oath 
in  the  usual  form,  he  will  be  allowed  to  make  a  solemn  religious 
asseveration,  involving  a  like  appeal  to  God  for  the  truth  of  his 
testimony,  in  any  mode  which  he  shall  declare  to  be  binding  on 
his  conscience.^     The  court,  in  ascertaining  whether  the  form  in 

48-50;  Scott  v.  Hooper,  14  Vt.  535;  Mr.  Christian's  note  to  3  Bl.  Comm.  369  ;  1  Phil. 
Evid.  18;  Commonwealth  v.  Bachelor,  4  Ani.Jiir.  7!),  n.).  If  the  change  of  opinion  is 
very  recent,  this  furnishes  no  good  ground  to  admit  the  witness  himself  to  declare  it  ; 
because  of  the  greater  inconvenience  which  would  result  from  thus  opening  a  door  to 
fraud,  than  from  adhering  to  the  rule  requiring  other  evidence  of  this  fact.  The  old 
cases,  in  which  the  witness  himself  was  questioned  as  to  his  belief,  have  on  this  point 
been  overrulfd.  See  Christian's  note  to  3  Bl.  Comm.  [369]  n.  (30).  The  law,  there- 
fore, is  not  reduced  to  any  absurdity  in  this  matter.  It  exercises  no  inrpiisitorial 
power  ;  neither  does  it  resort  to  secondary  or  hearsay  evidence.  If  the  witness  is 
objectetl  to,  it  asks  third  persons  to  testify,  whether  he  has  declared  his  belief  in  God, 
and  in  a  future  state  of  rewards  and  punishments,  kc.  Of  this  fact,  they  are  as  good 
witnesses  as  he  could  be,  and  the  testimony  is  primary  and  direct.  It  should  further  he 
noticed,  that  the  question,  whether  a  person,  about  to  be  sworn,  isanatheist  or  not,  can 
never  be  raised  by  any  one  but  an  adverse  party.  No  stranger  or  a  volunteer  has  a  right 
to  object.  There  must,  in  every  instance,  be  a  suit  between  two  or  more  parties,  one  of 
whom  offers  the  person  in  question  as  a  competent  witness.  The  presumption  of  law, 
that  every  citizen  is  a  believer  in  the  common  religion  of  the  country,  holds  good  until 
it  is  disproved ;  and  it  would  be  contrary  to  all  rule  to  allow  any  one,  not  party  to  the 
suit,  to  thrust  in  his  objections  to  the  course  pursued  by  the  litigants.  This  rule  and 
uniform  course  of  proceeding  shows  how  much  of  the  morbid  sympathy  expressed  for 
the  atheist  is  wasted.  For  there  is  nothing  to  prevent  him  from  taking  any  oath  of 
office;  nor  from  swearing  to  a  complaint  before  a  magistrate  ;  nor  from  making  oath  to 
his  answer  in  chancery.  In  this  last  case,  indeed,  he  i;ould  not  be  objected  to,  for  an- 
other reason  ;  namely,  that  the  plaintiff,  in  his  bill,  requests  the  court  to  require  him  to 
answer  upon  his  oath.  In  all  these,  and  many  other  similar  cases,  there  is  no  per.son 
authorized  to  raise  an  objection.  Neither  is  the  ([uestion  permitted  to  be  raised  against 
the  atheist,  where  he  himself  is  the  adverse  ]iarty,  and  offers  his  own  oath,  in  the  or- 
dinary course  of  proceeding.  If  he  would  make  affidavit,  in  his  own  cause,  to  the 
absence  of  a  witness,  or  to  hold  to  bail,  or  to  the  truth  of  a  plea  in  abatement,  or  to  the 
loss  of  a  paper,  or  to  the  genuineness  of  his  books  of  account,  or  to  his  fears  of  bodily 
harm  from  one  against  whom  he  re(juests  surety  of  the  peace,  or  would  take  the  poor 
debtor's  oath  ;  in  these  and  the  like  cases  the  uniform  course  is  to  receive  his  oath  like 
any  other  person's.  The  law,  in  such  cases,  does  not  know  that  he  is  an  atheist  ;  that 
is,  it  never  allows  the  objection  of  infidelity  to  be  made  against  any  man  seeking  his 
own  rights  in  a  court  of  justice  ;  and  it  conclusively  and  absolutely  presumes  that,  so 
far  as  religious  belief  is  concerned,  all  persons  are  capable  of  an  oath,  of  whom  it 
requires  one,  as  the  condition  of  its  protection,  or  its  aid  ;  probably  deeming  it  -i  less 
evil,  that  the  solemnity  of  an  oath  should,  in  few  instances,  be  mocked  by  those  who 
feel  not  its  force  and  meaning,  than  that  a  citizen  should,  in  any  case,  be  deprived  of 
the  benefit  and  protection  of  the  law,  on  the  ground  of  his  religious  belief.  The 
state  of  his  faith  is  not  imjuired  into,  where  his  ow7i  rights  are  concerned.  He  is  only 
})revented  from  being  made  the  instrument  of  taking  away  those  of  others."  1  Law 
Keporter,  i)p.  347,  348. 

^  Omichund  v.  Barker,  1  Atk.  21,  46;  s.  c.  Willes,  538,  545-549;  Ramkissenseat  v. 
Barker,  1   Atk.  19  ;  Atcheson  v.  Everitt,  Cowp.   389,  390  ;  iJull.  N.  P.   292  ;  1   Phil. 


510  LAW   OF   EVIDENCE.  [PART   III. 

which  the  oath  is  administered  is  binding  on  the  conscience  of 
the  witness,  may  inquire  of  the  witness  himself;  and  the  proper 
time  for  making  this  inquiry  is  before  he  is  sworn. ^  But  if  the 
witness,  without  making  any  objection,  takes  the  oath  in  the  usual 
form,  he  may  be  afterwards  asked,  whether  he  thinks  the  oath 
binding  on  his  conscience ;  but  it  is  unnecessary  and  irrelevant 
to  ask  him,  if  he  considers  any  form  of  oath  more  binding,  and 
therefore  such  question  cannot  be  asked.  ^  If  a  witness,  without 
objecting,  is  sworn  in  the  usual  mode,  but,  being  of  a  different 
faich,  the  oath  was  not  in  a  form  affecting  his  conscience,  as  if, 
being  a  Jew,  he  was  sworn  on  the  Gospels,  he  is  still  punishable 
for  perjury,  if  he  swears  falsely.* 

§  372.  Infamous  persons.  Under  this  general  head  of  exclusion, 
because  of  insensibility  to  the  obligation  of  an  oath,  may  be 
ranked  the  case  of  persons  infamous  ;  that  is,  persons  who,  what- 
ever may  be  their  professed  belief,  have  been  guilty  of  those 
heinous  crimes  which  men  generally  are  not  found  to  commit, 
unless  when  so  depraved  as  to  be  unworthy  of  credit  for  truth. 
The  basis  of  the  rule  seems  to  be,  that  such  a  person  is  morally 
too  corrupt  to  be  trusted  to  testify ;  so  reckless  of  the  distinction 
between  truth  and  falsehood  and  insensible  to  the  restraining 
force  of  an  oath,  as  to  render  it  extremely  improbable  that  he  will 
speak  the  truth  at  all.  Of  such  a  person  Chief  Baron  Gilbert 
remarks,  that  the  credit  of  his  oath  is  overbalanced  by  the  stain 
of  his  iniquity.!     ^he  party,  however,  must  have  been  legally  ad- 

Evid.  9-11;  1  Stark.  Evid.  22,  23;  Rex  v  Morgan,  1  Leach,  Cr.  Cas.  54;  Vail  v.  Nick- 
erson,  6  Mass.  262  ;  Edmonds  v.  Rowe,  Ry.  &  M.  77  ;  Com.  v.  Buzzell,  16  Pick.  153. 
"Quuinque  sit  adseveratio  religiosa,  satis  ))atet  jnsjurandum  atteniperandum  esse  cnj us- 
que religioni."  Heinec.  ad  Pand.  pars  3,  §§  13,  15.  "Quodcunque  nomen  dederis,  id 
utique  constat,  omne  jusjurandum  proficisci  ex  fide  et  persuasione  jnrantis  ;  et  inutile 
e.ssp,  nisi  quis  credat  Deuni,  quein  testem  advocat,  perjurii  sui  idoneum  esse  vendicem. 
Id  auteni  credat,  qui  jurat  per  Deum  suum,  per  sacra  sua,  et  ex  sua  ijisius  animi  reli- 
gione."  &('.     Bynkers.  Obs.  Jur.  Rom.  lib.  6,  c.  2. 

2  By  Stat.  1  &  2  Vict.  c.  105,  an  oath  is  binding,  in  whatever  form,  if  administered 
in  such  form  and  with  such  ceremonies  as  the  person  may  declare  binding.  But  the 
doctrine  itself  is  conceived  to  be  common  law. 

3  The  Queen's  Case,  2  Brod.  &  Bing.  284. 

*  Sells  V.  Hoare,  3  B.  &  B.  232  ;  State  v.  Whisenhurst,  2  Hawks.  458.  But  the 
adverse  party  cannot,  for  that  cause,  have  a  new  trial.  Whether  he  may,  if  a  wit 
ness  on  the  other  side  testified  without  having  been  sworn  at  all,  qucere.  If  the  omis- 
sion of  the  oath  was  known  at  the  time,  it  seems  he  cannot.  Lawrence  ?>.  Houghton, 
5  Johns.  129  ;  White  v.  Hawn,  Id.  351.  But  if  it  was  not  discovered  until  after  the 
trial,  he  may.     Hawks  o.  Baker,  6  Greenl.  72. 

1  1  Gilb.  Evid.  by  Lofft,  p.  256.  It  was  formerly  thought,  that  an  infamous  jyun- 
ishmcnt,  for  whatever  crime,  rendered  the  person  incompetent  as  a  witness,  by  reason 
of  infamy.  But  this  notion  is  exploded  ;  and  it  is  now  settled  that  it  is  the  crime  and 
not  the  punisliment  that  renders  the  man  infamous.  Bull.  N.  P.  292  ;  Pendock  v. 
Mackinder,  Willes,  666.  In  Connecticut,  the  infamy  of  the  witness  coes  now  only  to 
his  credibility.  Rev.  Stat.  1849,  tit.  1,  §  141  ;  Gen.  Stat.  1875,  p.  440.  So  in  Michi- 
gan.    Rev.  Stat.  1846,  c.  102,  §  99  ;  Laws,  1861,   c.  125,  p.  118.     And  in  Massachu- 


CHAP.    II.] 


COMPETENCY   OF   WITNESSES. 


611 


judged  guilty  of  the  crime.  If  he  is  stigmatized  by  public  fame 
only,  and  not  by  the  censure  of  law,  it  affects  the  credit  of  his 
testimony,  but  not  his  admissibility  as  a  witness. ^  The  record, 
therefore,  is  required  as  the  sole  evidence  of  his  guilt ;  no  other 
proof  being  admitted  of  the  crime ;  not  only  because  of  the  gross 
injustice  of  trying  the  guilt  of  a  third  person  in  a  case  to  which 
he  is  not  a  party,  but  also,  lest,  in  the  multiplication  of  the 
issues  to  be  tried,  the  principal  case  should  be  lost  sight  of,  and 
the  administration  of  justice  should  be  frustrated.^  (a)  [Ed.  This 
ground  of  exclusion  has  been  largely  done  away  with  by  statutes 
which  will  be  found  below  in  the  note  (a).] 

setts.  Gen.  Stat.  c.  131,  §  13  ;  Pub.  Stat.  c.  169,  §  18.  And  in  Iowa.  Code  of  1851, 
art.  2388  ;  Rev.  Code,  1880,  §  3636.  In  Florida,  a  conviction  of  perjury  is  a  perpetual 
obstacle  to  the  competency  of  the  party  as  a  witness,  notwithstanding  he  may  have 
been  pardoned  or  punished.'  But  convictions  for  other  crimes  go  only  to  the  credibility, 
e.Yc<-pt  the  crimes  of  murder,  perjury,  piracy,  forgery,  larceny,  robbery,  arson,  sodomy, 
or  buggery.  Convictions  for  any  crime  in  another  State  go  to  the  credibility  only. 
Thompson's  Dig.  pp.  334,  335  ;  Dig.  of  Laws,  1881,  p.  518. 

2  2  Dods.  186,  per  Sir  Wm.  Scott. 

3  Rex.  V.  Castell  Careinion,  8  East,  77  ;  Lee  v.  Gansel,  Cowp.  3,  per  Ld.  Mans- 
field. 


(a)  In  most  of  the  United  States,  this 
ground  of  incompetency  has  been  affected 
more  or  less  by  statutes  which  generally 
render  such  a  witness  competent,  but  pro- 
vide that  if  the  opposing  party  wishes  to 
impeach  the  credit  of  the  witness,  he  can 
introduce  evidence  that  the  witness  has 
been  convicted  of  crime,  using  therefor  the 
record  of  the  conviction.  In  many  States, 
however,  this  ground  of  incompetency  is 
not  wholly  done  away  with,  but  convic- 
tion of  certain  crimes,  of  which  the  princi- 
pal are  perjury  and  other  crimes  which 
have  a  direct  relation  to  lack  of  veracity 
in  a  witness,  is  still  a  ground  of  exclusion 
of  the  testimony  of  the  witness  entirely. 
The  statutes  of  tlie  various  States  are  as 
follows.  Alabama  (Code,  1886,  sec.  2766). 
In  this  State,  only  conviction  of  jierjury  or 
subornation  of  perjury  will  exclude  a  wit- 
ness ;  if  he  has  been  convicted  of  other  in- 
famous crimes  the  objection  goes  to  his 
credibility.  Arkansas  (Code,  sec.  2859). 
In  this  State,  persons  convicted  of  a  capital 
iilfence,  or  of  perjury,  subornation  of  per- 
jury, burglary,  robbery,  larceny  (a  con- 
viction for  petit  larceny  disqualilies  the 
defendant  as  a  witness  :  Hall  v.  Doyle,  35 
Ark.  445),  receiving  stolen  goods,  forgery 
or  counterfeiting  are  incompetent  to  testify 
except  by  consent  of  the  parties.  Ca!i- 
fornia  (Civ.  Code,  sec.  1879).  In  this 
State,  persons  convicted  of  crime  are  not 
incompetent,  but  their  credibility  may  be 
impeached  by  proof  of  such   conviction. 


Colorado  (Gen.  Laws,  sec.  3647).  In  this 
State,  those  who  have  been  convicted  of 
crime  are  competent  but  their  credibility 
may  be  impeached  thereby  ;  and  the  con- 
viction may  be  shown  for  the  purpose  of 
affecting  the  credibility  of  the  witness  ;  the 
fact  of  such  conviction  may  be  proved 
either  by  the  witness  himself  (who  shall 
be  compelled  to  testify  thereto)  or  by  any 
other  person  cognizant  of  such  conviction 
as  impeaching  testimony,  or  by  any  other 
competent  testimony.  Connecticut  (Gen. 
Stat.,  sec.  1098).  No  person  is  incom- 
petent as  a  witness  by  reason  of  his  con- 
viction of  crime,  but  such  conviction 
may  be  shown  for  the  ])urpose  of  affecting 
his  credit.  Delaware  (Laws,  vol.  17,  ch. 
598,  sec.  3).  No  person  is  excluded  from 
testifying  as  a  witness  by  reason  of  his 
having  been  convicted  of  a  felony,  but  evi- 
dence of  the  fact  may  be  given  to  affect 
his  credibility.  Florida  (Laws,  ch.  101, 
sec.  28).  A  proffered  witness  may  be  ques- 
tioned as  to  whether  he  has  been  con- 
victed of  any  felony  or  misdemeanor,  and 
if  he  either  denies  the  fact  or  refuses  to 
answer,  the  opposite  party  may  prove  such 
conviction.  And  a  certiticate  containing 
the  substance  an<l  effect  only  of  the  indict- 
ment and  conviction  of  such  offence,  signed 
by  the  clerk  of  the  court  where  the  offender 
w-as  convicted,  is,  with  proof  of  identity  of 
the  person,  sufficient  evidence  of  such  con- 
viction without  proof  of  the  signature  of 
official  character  of  the  person  appearing 


612 


LAW   OP    EVIDENCE. 


[part    III. 


§  373.    "What  constitutes  infamy.       It  is  a  point  of  110  Siuall  diffi- 


to  have  signed  the  certificate.  Florida 
( Laws,  ch.  202,  sec.  5).  A  person  con- 
victed of  perjury,  although  he  has  been 
pardoned  or  [lunished  is  incoinj)etent  to  be 
a  witness  ;  as  to  other  crimes  (sec.  6),  no 
person  is  incompetent  by  reason  of  liaving 
committed  any  crime  unless  he  has  been 
convicted  thereof  in  that  State,  but  the 
conviction  of  any  person  in  any  court 
without  the  State,  of  a  crime  which,  if  he 
had  been  convicted  thereof  within  this 
State  would  render  him  an  incom})etent 
witness,  may  be  given  in  evidence  to  affect 
his  credibility.  Georgia  (Code,  sec.  3854). 
Conviction  ot  crime  does  not,  in  this  State, 
exclude  an  offered  witness.  Illinois  (Rev. 
Stat.,  ch.  51,  sec.  1).  The  statute  is  the 
same  as  in  Colorado  as  to  civil  cases  ;  and 
(sec.  426,  ch.  38,  sec.  6)  no  person  is  dis- 
qualified as  a  witness  in  any  criminal  case 
by  reason  of  his  having  been  convicted  of 
any  crime.  Indiana  (Rev.  Stat.  1888, 
sees.  506,  1798).  A  witness  convicted  of 
crime  is  rendered  competent  by  the  stat- 
ute which  enacts  that  any  fact  which 
might  heretofore  be  shown  to  render  a 
witness  incompetent  may  be  thereafter 
shown  to  affect  his  credibility.  Iowa 
(Rev.  Code,  1886,  sec.  3637).  And  sim- 
ilarly, in  Iowa  facts  which,  at  common 
law,  caused  the  exclusion  of  testimony, 
may  still  be  shown  for  the  purpose  of  les- 
sening its  credibility;  and  (.sec.  3548)  a 
witness  may  be  interrogated  as  to  his  pie- 
vious  conviction  for  a  felony.  But  no 
other  proof  of  such  conviction  is  conii)e- 
teut  exce[)t  the  record  thereof.  Kanms 
(Gen.  Stat.  1889,  sec.  4414).  No  person 
is  disqualified  as  a  witness  in  any  civil  ac- 
tion by  reason  of  his  conviction  of  a  crime  ; 
but  such  conviction  may  be  shown  for  the 
ymrpose  of  affecting  his  credibility .  Ma  ine 
(Rev.  Stat.  1883,  ch.  82,  sec.  105).  No 
person  is  incompetent  to  testify  in  any 
court  or  legal  proceeding  in  consequence 
of  having  been  convicted  of  an  offence,  but 
such  conviction  may  be  shown  to  affect  his 
credibility.  Maryland  (Pub.  Gen.  Laws, 
art.  35,  sec.  1).  No  party  offered  as  a  wit- 
ness is  excluded,  by  reason  of  incapacity 
from  crime,  except  that  no  person  who  has 
been  convicted  of  the  crime  of  perjury 
shall  be  admitted  to  testify  in  any  cause 
or  proceeding  whatever  ;  and  (sec.  5)  in 
all  cases  it  is  competent  for  any  of  the  i)ar- 
ties  to  the  proceedings  to  prove  by  legal 
evidence  the  conviction  of  a  witness  of 
any  infamous  crime,  and  in  order  to  prove 
such  conviction  it  is  not  necessary  to  pro- 
duce tbe  whole  record  of  proceedings  show- 
ing such  conviction,  but  the  certificate  un- 


der seal  of  the  clerk  of  the  court  wherein 
such  proceedings  were  had,  stating  the  fact 
of  the  conviction  and  for  what  crime,  is 
sufhcient.  Massachusetts  (Pub.  Stat.,  ch. 
169,  sec.  19).  The  conviction  of  a  wit- 
ness of  a  crime  may  be  shown  to  affect  hi.s 
credibility,  but  does  not  render  him  in- 
competent. Mkhifjan  (Howell's  Anriot. 
Stat.,  sees.  7543,  7544).  No  person  is  ex- 
cluded from  giving  evidence  in  any  matter 
civil  or  criminal  by  reason  of  crime,  but 
such  conviction  of  crime  may  be  shown 
for  the  purpose  of  drawing  in  question  the 
credibility  of  such  witness.  Minnesota 
(Stat.  (Kelley)  sec.  5095).  Persons  who 
have  been  convicted  of  crime  are  not  in- 
competent witnesses  in  either  civil  or  crim- 
inal cases,  although  in  every  case  the  cred- 
ibility of  the  witness  may  be  drawn  in 
question  ;  (sec.  6534)  but  the  conviction 
may  be  jiroved  for  the  purpose  of  affecting 
tlie  weight  of  the  testimony,  either  by 
the  record  or  by  cioss-examination  of  the 
witness,  upon  which  he  must  answer  any 
pioper  question  relevant  to  th;it  inquiry, 
and  the  party  cross-examining  is  not  con- 
cluded by  the  answer  to  such  question. 
Mississippi  (Rev.  Code,  1880,  sec.  1600). 
No  conviction  of  any  person  for  any  of- 
fence except  perjury  and  subornation  of 
perjury  disqualifies  such  person  as  a  wit- 
ness, but  such  conviction  may  be  given 
in  evidence  to  impeach  his  credibility ; 
and  no  person  convicted  of  perjury  or 
subornation  of  peijury  shall  afterwards  be 
a  competent  witness  in  any  case,  although 
pardoned  or  punished  for  the  same.  Mis- 
souri (Rev.  Stat.  1889,  sec.  8925).  No 
])ro vision  of  statute  directly  atlects  this 
point,  but  all  persons  are  competent,  with 
few  exceptions.  Montana  (Compiled  Stat. 
Code  Civ.  Proc,  sec.  647).  Tho.se  who 
have  been  convicted  of  crime  are  compe- 
tent although  in  every  case  the  credibility 
of  the  witness  may  be  drawn  in  question  ; 
but  (sec.  648,  cl.  3)  persons  against  whom 
judgment  has  been  rendered  ujion  a  con- 
viction for  a  felony  are  incompetent,  un- 
less pardoned  by  the  governor,  or  such 
judgment  has  been  reversed  on  appeal. 
Nebraska  (Code,  p.  672,  sec.  330).  Facts 
which  have  heretofoie  caused  the  exclu- 
.sion  of  testimony  may  still  be  shown  for 
the  purpose  of  lessening  its  credibility  ; 
thus  admitting  persons  convicted  of  fel- 
ony ;  and  (sec.  338)  a  witness  may  be  in- 
terrogated as  to  his  ])revious  conviction 
for  a  felony.  But  no  other  proof  of  such 
conviction  is  competent  except  tbe  record 
thereof;  and  (p.  839,  sec.  473)  no  person 
shall  be  disqualified  as  a  witness  in  any 


CHAP.    II.] 


COMPETENCY    OF    WITNESSES. 


513 


culty  to  determine  precisely  the  crimes  which  render  the  pei- 


criminal  prosecution  by  reason  of  his  con- 
viction of  any  crime,  Init  such  conviction 
may  be  shown  for  the  purpose  of  affecting 
his  credibility.  Nevada  (Gen.  Stat.  1885, 
sec.  3399  (s.  377).  No  person  is  disqual- 
iKeil  as  a  witness  in  any  action  by  rea- 
son of  his  conviction  of  felony,  but  such 
conviction  may  be  shown  for  the  purpose 
of  affecting  his  credibility,  and  the  jury  is 
to  be  the  exclusive  judges  of  his  credibil- 
ity. New  Hampshire  (Pub.  Stat.  1891 
(Comm's  Rep.)  cli.  223,  sec.  26).  No  jier- 
son  is  incompetent  to  testify  on  account  of 
his  having  been  convicted  of  an  infamous 
crime,  but  the  record  of  such  conviction 
may  be  used  to  affect  his  credit  as  a  wit- 
ness. New  York  (Code  Civ.  Proc,  sec. 
831).  A  person  who  has  been  convicted 
of  a  crime  or  misdemeanor  is,  notwith- 
standin'^  a  competent  witness  in  a  civil 
or  criminal  action;  but  the  conviction  may 
be  proved  for  the  purpose  of  affecting  the 
weight  of  his  testimony,  either  by  the 
record  or  by  his  cross-examination,  upon 
which  he  must  answer  any  question  rele- 
vant to  that  inquiry,  and  the  party  cross- 
examining  him  is  not  concluded  by  his 
answer  to  such  question.  Ohio  (Rev.  Stat. 
1886,  sees.  5240,  7284).  No  person  is  dis- 
qualified as  a  witness  in  any  civil  case  or 
criminal  prosecution  by  reason  of  his  con- 
viction of  any  crime.  Oregon  (Hill's  An- 
not.  Law,  1887,  ch.  8,  title  III.  sec.  710). 
Tho.se  who  have  been  convicted  of  crime 
are  competent,  but  in  every  case  the  cred- 
ibility of  the  witnesses  may  be  drawn  in 
question,  as  provided  by  the  laws.  Penn- 
sylvania (Laws  of  1887,  ch.  89,  sec.  2). 
In  criminal  proceedings  a  person  who  has 
been  convicted  in  a  court  of  that  State  of 
perjury,  which  term  is  declared  to  include 
subornation  of  peijurj',  is  not  a  competent 
witness  for  any  purpose,  although  his  sen- 
tence may  have  been  fully  comjdied  with, 
unless  the  judgment  of  conviction  be  judi- 
cially set  aside  or  reversed,  or  unless  the 
{)roceeding  be  one  to  punish  or  prevent 
injury  or  violations  attempted,  done  or 
threatened  to  his  person  or  property,  in 
which  case  he  shall  be  competent  to  tes- 
tify ;  and  a  similar  act  (sec.  5)  covers  civil 
proceedings.  Rhode  Island  (Pub.  Stat., 
ch.  214,  sec.  38).  No  person  is  an  incom- 
petent witness  because  of  his  conviction  of 
any  crime  or  sentence  to  imprisonment 
therefor,  but  shall  be  admitted  to  testify 
like  any  other  witness,  except  that  such 
conviction  or  sentence  may  be  shown  to 
affect  his  credibility.  Tennessee  (Code, 
1884,  sec.  4562).  Persons  are  rendered 
incompetent  witnesses  by  conviction  and 

VOL.    I.  —  33 


sentence  for  the  following  crimes,  utihss 
they  have  been  lestored  to  full  citizenship 
under  the  law  provided  for  that  purpose, 
viz.  :  Abuse  of  female  child,  arson  an<i 
felonious  burning,  bigamy,  buggery,  coun- 
terfeiting or  violating  of  the  provisions  to 
suppress  the  same,  destroying  will,  for- 
gery, house  breaking,  incest,  larceny,  per- 
jury, robbery,  receiving  stolen  projierty, 
rape,  sodomy,  stealing  bills  of  exchange 
or  other  valuable  papers,  subornation  of 
peijury.  Texas  (Code,  Crim.  Proc,  art. 
730).  All  persons  who  have  been  con- 
victed of  felony,  either  within  or  without 
the  State,  are  incompetent  unless  sucii 
conviction  has  been  legally  set  aside,  or 
unless  the  convicted  person  has  been  iiar- 
doned  for  the  crime  of  which  he  was  con- 
victed. But  no  jierson  who  has  been 
convicted  of  the  crime  of  perjury  or  false 
swearing,  and  whose  conviction  has  not 
been  legally  set  aside,  shall  have  his  com- 
petency as  a  witness  restored  by  a  pardon, 
unless  such  pardon  by  its  terms  specifically 
restore  his  competency  to  testify  in  a 
court  of  justice.  But  a  defendant  in  a 
criminal  case,  who  testifies  in  his  own  be- 
half, cannot  be  excludeel  by  a  conviction 
of  felony.  Williams  v.  State,  27  Tex. 
466.  Utah  (Compiled  Laws,  1888,  vol. 
2,  title  10,  ch.  2,  sec.  3876).  Those  who 
have  been  convicted  of  crime  are  compe- 
tent, but  in  every  case  the  credibility  of 
the  witness  may  be  drawn  in  question,  by 
the  manner  in  which  he  testifies,  by  the 
character  of  his  testimony,  or  by  evi- 
dence affecting  his  character  for  truth, 
honesty,  or  integrity,  or  his  motives,  or  by 
contradictory  evidence  ;  and  the  jury  are 
the  exclusive  judges  of  his  credibility  ; 
and  (Crim.  Code,  ait.  9,  sec.  5196)  the 
rules  for  determining  the  competency  of 
witnesses  in  civil  actions  are  applicable 
also  to  criminal  actions  and  proceedings. 
Vermont  (Rev.  Law,  1880,  sec?  1008).  No 
person  is  incompetent  as  a  witness  in  any 
proceeding  by  reason  of  his  conviction  of 
a  crime  other  than  perjury,  subornation 
of  perjury,  or  endeavoring  to  incite  or  pro- 
cure another  to  commit  the  crime  of 
perjur}'  ;  but  the  conviction  of  a  crime 
involving  moral  turjntude  may  be  given 
in  evidence  to  affect  the  credibility  of  the 
witness.  Virginia  (Code,  1887,  sec. 
3898).  Except  where  it  is  otherwise  ex- 
pressly provided,  a  person  convicted  of 
felony  cannot  be  a  witness,  unless  he  has 
been  pardoned  or  punished  therefor,  and  a 
person  convicted  of  perjury  shall  not  be  a 
witness  although  pardoned  or  punisheil. 
West  Virginia  (Code,   ch.  152,  sec.   17). 


514 


LAW    OF    EVIDENCE. 


[part   III. 


petrator  thus  infamous.     The  rule  is  justly  stated  to  require, 


Except  where  it  is  otherwise  expressly 
provided,  a  person  convicted  of  felony  can- 
not be  a  witness  unless  he  has  been  par- 
doned or  punished  therefor  ;  but  a  person 
convicted  of  felony  and  sentenced  therefor, 
except  it  be  for  perjury,  may  by  leave  of 
court,  be  examined  as  a  witness  in  any 
criminal  prosecution,  though  he  has  not 
been  pardoned  or  punished  therefor,  but  a 
person  convicted  of  perjury  sliall  not  be 
a  witness  in  any  case,  although  he  may 
have  been  pardoned  or  punished.  Wash- 
ington (Hill's  Code,  vol.  2,  sec.  1647).  Ko 
person  offered  as  a  witness  shall  be  ex- 
cluded from  giving  evidence  by  reason  of 
conviction  of  crime,  but  such  conviction 
may  be  shown  to  affect  his  credibility  ; 
provided  that  any  person  who  shall  have 
been  convicted  of  the  crime  of  perjury 
shall  not  be  a  competent  witness  in  any 
case,  unless  such  conviction  shall  have 
been  reversed,  or  unless  he  shall  have  re- 
ceived a  pardon.  JVisconsiii  (Rev.  Stat. 
1878,  sec.  4073).  A  person  who  has  been 
convicted  of  a  criminal  offence  is,  notwith- 
standing, a  competent  witness  ;  but  the 
conviction  may  be  proved  to  affect  his 
credibility,  either  by  the  record  or  by  his 
own  cross-examination,  upon  which  he 
must  answer  any  question  relevant  to  that 
inquiry,  and  the  party  cross-examining 
him  is  not  concluded  by  his  answer. 

Under  these  statutes  various  decisions 
have  been  reached  by  the  courts  ;  some  of 
the  most  important  of  which  are  as  follows. 
Under  the  statute  which  provides  that  no 
conviction  for  crime  shall  disqualify  a 
witness,  a  witness  who  confesses  that  he 
had  previously  committed  perjury  in  re- 
gard to  the  same  things  to  which  he  testi- 
fies, is  not  thereby  rendered  incompetent, 
even  though  the  rule  at  one  time  was  that 
the  confession  of  the  witness  that  he  had 
committed  perjury  renilered  him  incompe- 
tent without  proof  of  his  conviction.  The 
court  in  this  case  argued  that  if  the  inten- 
tion of  the  legislature  was  that  a  conviction 
for  Clime  should  not  render  the  witness 
disqualified,  still  less  should  anything 
short  of  a  record  of  his  conviction  have 
that  effect.  People  v.  O'Neil,  48  Hun. 
36.  In  Kentucky  it  is  held  that  under 
the  statute  of  that  State  a  person  convicted 
of  a  felony  anywhere  in  the  United  States, 
is  incompetent  as  a  witness  unless  he  has 
been  pardoned.  Com.  v.  McGuire,  84 
Ky.  57.  Under  the  Louisiana  statutes, 
making  all  persons  of  proper  understand- 
ing competent  witnesses  in  criminal  mat- 
ters, a  conviction  of  a  crime  no  longer 
disqualifies  the  witness.     State  v.  Mack, 


41  La.  Ann.  1079;  State  v.  McManus,  42 
La.  Ann.  1194.  A  statute  exists  in  some 
States,  by  which  no  prisoner  in  a  peniten- 
tiary of  the  State,  or  of  any  other  country, 
shall  testify  in  civil  actions.  This  ground 
of  disqualification  is  related  to  the  exclu- 
sion for  conviction  of  crime,  but  is 
wholly  a  creation  of  statute,  and  in  Ken- 
tucky does  not  extend  to  criminal  cases. 
Com.  V.  Minor,  89  Ky.  555.  Under 
the  Texas  statutes,  providing  that  a  par- 
don makes  a  witness  competent,  a  pardon 
which  is  subject  to  revocation  by  the 
governor  of  the  State  whenever  the  person 
holding  the  same  has  violated  any  of  the 
criminal  laws  of  the  State,  does  not  restore 
the  witness  to  competency.  McGee  v. 
State,  16  South  West.  Rep.  422.  A  per- 
son who  has  been  tried  for  arson,  con- 
victed, but  not  yet  sentenced,  is  competent 
as  a  witness  in  Virginia.  Brown  v.  Com., 
86  Va.  935.  In  the  Federal  Courts  it  has 
been  held  that  a  defendant  who  takes  the 
stand  to  testify  in  his  own  behalf  is  liable 
to  exclusion  on  the  ground  that  he  has 
previously  been  convicted  of  an  infamous 
crime,  in  cases  where  such  conviction 
works  the  exclusion  of  the  witness. 
United  States  v.  Hollis,  43  Fed.  Rep. 
248.  Some  disagreement  exists  in  the 
statutes  of  the  various  States  in  regard  to 
the  mode  of  proving  the  conviction  in 
order  to  impeach  the  witness.  Some 
States  insist  upon  the  record,  in  other 
States  oral  testimony  of  the  conviction  is 
admissible.  See  statutes,  siqjra,  at  length. 
In  all  States,  however,  the  mere  fact  of 
arrest  or  accusation  is  not  admissible 
against  the  witness.  Thus,  in  Pullen  v. 
PuUen,  43  N.  J.  Eq.  139,  an  offer  was 
made  to  make  proof  of  criminal  conduct  of 
the  witness  by  producing  a  justice  of  the 
peace  with  his  docket,  and  asking  the  jus- 
tice respecting  his  actions  in  issuing  pro- 
cess, and  then  offering  to  prove  what  he 
had  done,  and  the  nature  of  the  offence 
charged  by  his  docket.  This  was  held  to 
be  inadmissible.  Moreover,  a  conviction 
from  which  an  appeal  has  been  taken,  and 
is  pending  at  the  time  of  trial,  cannot 
be  shown  to  impeach  the  witness's  credi- 
bility. Card  V.  Foot,  57  Conn.  431. 
When  a  conviction  of  crime  has  been  in- 
troduced to  affect  the  credibility  of  a 
witness,  evidence  of  the  good  reputation 
of  the  witness  at  the  present  time  for  truth 
may  be  introduced  to  rebut  the  evidence 
of  conviction.  Gertz  v.  Fitchburg  Rail- 
road. 137  Mass.  77  ;  Webb  v.  State,  29 
Oh.  St.  351  ;  Rex  v.  Clarke,  2  Stark.  241; 
see  post,  sec.  376.     But  such  evidence  is 


CHAP. 


II.] 


COMPETENCY    OP    WITNESSES. 


615 


that  "the  publicum  judicium  must  be  upon  an  offence,  implying 
such  a  dereliction  of  moral  principle,  as  carries  with  it  a  con- 
clusion of  a  total  disregard  to  the  obligation  of  an  oath."  ^  But 
the  difficulty  lies  in  the  specification  of  those  offences.  The  usual 
and  more  general  enumeration  is,  treason,  felony,  and  the  crimen 
falsi.^  In  regard  to  the  two  former,  as  all  treasons,  and  almost 
all  felonies,  were  punishable  v/ith  death,  it  was  very  natural  that 
crimes,  deemed  of  so  grave  a  character  as  to  render  the  offender 
unworthy  to  live,  should  be  considered  as  rendering  him  unwor- 
thy of  belief  in  a  court  of  justice.  But  the  extent  and  meaning 
of  the  term  crimen  falsi,  in  our  law,  is  nowhere  laid  down  with 
precision.  In  the  Roman  law,  from  which  we  have  borrowed  the 
term,  it  included  not  only  forgery,  but  every  species  of  fraud  and 
deceit.  3     If  the  offence  did  not  fall  under  any  other  head,  it  was 

1  2  Dods.  186,  per  Sir  Wra.  Scott. 

2  Phil.  &  Am.  on  Evid.  p.  17  ;  6  Com.  Dig.  353,  Testmoigne,  A,  4,  5 ;  Co.  Lit.  6  b; 
2  Hale,  P.  C.  277  ;  1  Stark.  Evid.  94,  95.  A  conviction  for  petty  larceny  disqualities, 
as  well  as  for  grand  larceny.     Pendock  v.  Mackinder,  Willes,  665. 

3  Cod.  lib.  9,  tit.  22,  ad  legem  Comeliam  de  falsis.  Cujac.  Opera,  tom.  ix.  in  locum 
(Ed.  Prati,  A.   D.   1839,   4to,  pp.  2191-2200;  1   Brown's  Civ.  &  Adm.   Law,  p.  525); 


inadmissible  to  rebut  evidence  of  self-con- 
tradictory statements  made  by  the  witness. 
Russell  V.  Coffin,  8  Pick.  143  ;  Brown  v. 
Mooers,  6  Gray,  451.  The  reason  of  its 
admissibility  in  the  former  case  is  that  the 
evidence  of  the  conviction  of  a  crime  is 
only  relevant  to  the  case,  as  impeaching 
the  character  of  the  witness.  The  argu- 
ment is  that  if  the  witness  has  committed 
a  crime  he  is  more  likely  to  perjure  himself 
than  if  he  had  not  committed  a  crime. 
Whatever  force  there  is  in  this  argument, 
comes  from  the  fact  that  it  shows  a  de- 
praved character  in  the  witness,  and,  since 
it  thus  attacks  his  character,  evidence  of 
his  reputation  or  character  for  truth  and 
integrity  is  admissible  to  rebut  such  at- 
tack. Gertz  V.  Fitchburg  Railroad,  supra. 
If  the  defendant  in  a  criminal  case  goes  on 
the  stand  as  a  witness,  his  credibility  may 
be  impeached  by  evidence  of  a  conviction  of 
crime.  Com.  v.  Ford,  146  Mass.  131. 
Under  the  statute  of  Massachusetts,  con- 
viction of  any  crime,  though  only  of  the 
rank  of  a  misdemeanor,  may  be  shown  to 
affect  the  credibility  of  the  witness.  Com. 
V.  Ford,  supra;  Quigley  v.  Turner,  150 
Mass.  108.  This  decision  is  based  on  the 
wording  of  the  statutes  of  Massachusetts, 
which  first  made  all  persons  competent 
witnesses,  and  then  provided  that  convic- 
tion of  a  crime  may  be  shown  to  affect  the 
credibility  of  the  witness.  That  is  not  in 
accord  with  the  decisions  in  Connecticut, 


where  the  statutes  provide  that  "  no  per- 
son shall  be  disqualified  as  a  witness  by 
reason  of  his  conviction  of  a  crime,  but 
such  conviction  may  be  shown  for  the 
purpose  of  affecting  his  credit."  Under 
this  statute  it  is  held  that  only  those 
crimes,  a  conviction  for  which  would  have 
rendered  the  witness  incompetent,  can 
now  be  shown  to  affect  his  credibility. 
Card  V.  Foot,  57  Conn.  431.  And  in  this 
the  decisions  in  Ohio  and  Illinois  agree. 
Coble  V.  State,  31  Oh.  St.  100  ;  Bartholo- 
mew V.  People,  104  111.  601.  It  was  for- 
merly held  to  be  the  rule,  that  where  the 
witness  was  .shown  to  have  wilful  1}'  sworn 
falsely  in  a  former  proceeding  in  the  case, 
or  upon  the  trial,  the  jury  should  be  in- 
structed to  disregard  the  testimony  of  such 
witness.  But  since  the  enactment  of 
statutes  by  which  a  person  convicted  of 
any  crime  is,  notwithstanding,  a  compe- 
tent witness,  but  proof  of  his  conviction 
is  allowed  for  the  purpose  of  affecting  the 
weight  of  his  testimony,  the  fact  that  a 
witness  has  sworn  falsely  affects  his  credi- 
bility only.  People  v.  Chapleau,  121  N. 
Y.  275.  In  People  v.  O'Neil,  109  N.  Y. 
251,  266,  the  court  refused  to  charge  that 
if  the  jury  should  find  that  certain  wit- 
nesses had  in  their  previous  testimony,  in 
respect  to  the  same  matters,  committed  wil- 
ful perjury,  the  jury  should  wholly  disre- 
gard their  testimony  given  on  the  trial ; 
and  this  was  on  appeal  held  not  to  be  error. 


516  LAW   OP   EVIDENCE.  [PART   III. 

called  stellionatus,'^  which  included  "all  kinds  of  cozenage  and 
knavish  practice  in  bargaining. "  But  it  is  clear,  that  the  com- 
mon law  has  not  employed  the  term  in  this  extensive  sense,  when 
applying  it  to  the  disqualification  of  witnesses;  because  convic- 
tions for  many  offences,  clearly  belonging  to  the  crimen  falsi  of  the 
civilians,  have  not  this  effect.  Of  this  sort  are  deceits  in  the 
quality  of  provisions,  deceits  by  false  weights  and  measures,  con- 
spiracy to  defraud  by  spreading  false  news,^  and  several  others. 
On  the  other  hand,  it  has  been  adjudged  that  persons  are  ren- 
dered infamous,  and  therefore  incompetent  to  testify,  by  having 
been  convicted  of  forgery,^  perjury,  subornation  of  perjury," 
suppression  of  testimony  by  bribery,  or  conspiracy  to  procure  the 
absence  of  a  witness,^  or  other  conspiracy,  to  accuse  one  of  a 
crime,^  and  barratry. ^^  And  from  these  decisions,  it  may  be  de- 
duced, that  the  crimen  falsi  of  the  common  law  not  only  involves 

Dig.  lib.  48,  tit.  10  ;  Heinec.  in  Pand.  pars  vii.  §§  214-218.  The  crimen  falsi,  as  re- 
cognized in  the  Roman  law,  might  be  committed.  1.  By  words,  as  in  perjury  ;  2.  By 
writing,  as  in  forgery  ;  3.  By  act  or  deed  ;  namely,  in  counterfeiting  or  adulterating 
the  public  money,  —  in  fraudulently  substituting  one  child  for  another,  or  a  suppositi- 
tious birth,  —  or  in  fraudulently  personating  another,  —  in  using  false  weights  or  mea- 
sures, —  in  selling  or  mortgaging  the  same  thing  to  two  several  persons,  in  two  several 
contracts,  and  in  officiously  supporting  the  suit  of  another  by  money,  &c.,  answering 
to  the  common-law  crime  of  maintenance.  Wood,  Instit.  Civil  Law,  pp.  282,  283  ; 
Halifax,  Analysis  Rom.  Law,  p.  134.  The  law  of  Normandy  disposed  of  the  whole 
subject  in  these  words  :  "  Notandum  siquidem  est,  quod  nemo  in  querela  sua  pro  teste 
recipiendus  est ;  nee  ejus  hseredes  nee  participes  querelae.  Et  hoc  intelligendum  est 
tarn  ex  parte  actoris,  quam  ex  parte  defensoris.  Omnes  autem  illi,  qui  perjurio  vel 
Imsione  Jidei  sunt  infames,  ob  hoc  etiam  sunt  repellendi,  et  omnes  illi,  qui  in  bello 
succnbuerunt."  Jura  Normaniae,  c.  62  (in  Le  Gnind  Coustumier,  fol.  edit.  1539).  In 
the  ancient  Danish  law,  it  is  thus  defined,  in  the  chapter  entitled  Falsi  crimen  quod- 
nam  censetur.  "  Falsum  est,  si  terminum,  finesve  quis  moverit,  monetam  nisi  venia 
vel  mandate  regio  cusserit,  argentum  adulteriuum  conflaverit,  nummisve  reprobis  dole 
malo  emat  vendatque,  vel  argento  adulterino."  Ancher,  Lex  Cimbrica,  lib.  3,  c.  65, 
p.  249. 

*  Dig.  lib.  47,  tit.  20,  1.  3,  Cujac.  (in  locum)  Opera,  torn.  ix.  (ed.  supra),  p.  2224. 
Stellionatus  nomine  significatur  onme  crimen,  quod  nomen  proprium  non  habet,  omnis 
fraus,  quae  nomine  proprio  vacat.  Translatum  autem  esse  nomen  stellionatus,  nemo 
est  qui  nesciat,  ab  animali  ad  hominem  vafrum,  et  decipiendi  peritum.  Id.  Heinec. 
ad  Pand.  pars  vii.  §§  147,  148  ;  1  Brown's  Civ.  &  Adm.  Law,  p.  426. 

5  The  Ville  de  Varsovie,  2  Dods.  174.     But  see  Crowther  v.  Hopwood,  3  Stark.  21. 

6  Rex  V.  Davis,  5  Mod.  74. 

'  Co.  Lit.  6  6/6  Com.  Dig.  353,  Testm..  A,  5. 

8  Clancpy's  Case,  Fortesc.  208  ;  Bushel  v.  Barrett,  Ry.  &  M.  434. 

9  2  Hale',  P.  C.  277  ;  Hawk.  P.  C.  b.  2,  c.  46,  §  101  ;  Co.  Lit.  6  b ;  Rex  v.  Priddle, 
2  Leach,  Cr.  Cas.  442  ;  Crowther  v.  Hopwood,  3  Stark.  21,  arg. ;  1  Stark.  Evid.  95; 
2  Dods.  191. 

10  Rex  V.  Ford,  2  Salk.  690 ;  Bull.  N.  P.  292.  The  receiver  of  stolen  goods  is  in- 
competent as  a  witness.  See  the  trial  of  Abner  Rogers,  pp.  136,  137.  (a)  If  a  statute 
declare  the  perpetrator  of  a  crime  "infamous,"  this,  it  seems,  will  render  him  incom- 
petent to  testify.     1  Gilb.  Evid.  by  Loff't,  pp.  256,  257  ;  Co.  Lit.  6  b. 

(a)  Com.  V.  Rogers,  7  Met.  (Mass.)  road  is  not  thereby  an  incompetent  wit- 
500.  A  person  convicted  of  maliciously  ness.  Commonwealth  v.  Dame,  8  Cush. 
obstructing  the  passing  of  cars  on  a  rail-     (Mass. )  384. 


CHAP,    IT.]  COMPETENCY    OF    WITNESSES.  617 

the  charge  of  falsehood,  but  also  is  one  which  may  injuriously 
affect  the  administration  of  justice,  by  the  introduction  of  false- 
hood and  fraud.  At  least  it  may  be  said,  in  the  language  of  Sir 
William  Scott,"  "so  far  the  law  has  gone  affirmatively;  and  it  is 
not  for  me  to  say  where  it  should  stop,  negatively. " 

§  374.  Extent  and  effect  of  disability  of  infamy.  In  regard  to 
the  extetit  arid  effect  of  the  disability  thus  created,  a  distinction 
is  to  be  observed  between  cases  in  which  the  person  disqualified 
is  a  party,  and  those  in  which  he  is  not.  In  cases  between  third 
persons,  his  testimony  is  universally  excluded.  ^  (a)  But  where 
he  is  a  party,  in  order  that  he  may  not  be  wholly  remediless,  he 
may  make  any  affidavit  necessary  to  his  exculpation  or  defence, 
or  for  relief  against  an  irregular  judgment,  or  the  like;^  but  it 
is  said  that  his  affidavit  shall  not  be  read  to  support  a  criminal 
charge. 3  If  he  was  one  of  the  subscribing  witnesses  to  a  deed, 
will,  or  other  instrument,  before  his  conviction,  his  handwriting 
may  be  proved  as  though  he  were  dead.* 

§  375.  Infamy  proved  only  by  judgment.  We  have  already  re- 
marked, that  no  person  is  deemed  infamous  in  law,  until  he  has 
been  legally  found  guilty  of  an  infamous  crime.  But  the  mere 
verdict  of  the  jury  is  not  sufficient  for  this  purpose;  for  it  may 
be  set  aside,  or  the  judgment  may  be  arrested,  on  motion  for  that 
purpose.  It  is  the  judgment,  and  that  only,  which  is  received  as 
the  legal  and  conclusive  evidence  of  the  party's  guilt,  for  the  pur- 
pose of  rendering  him  incompetent  to  testify.  ^  And  it  must 
appear  that  the  judgment  was  rendered  by  a  court  of  competent 
jurisdiction. 2  Judgment  of  outlawry,  for  treason  or  felony,  will 
have  the  same  effect ;  ^  for  the  party,  in  submitting  to  an  outlawry, 

11  2  Dods.  191.     See  also  2  Russ.  on  Crimes,  592,  593. 

1  Even  where  it  is  merely  otfered  as  an  affidavit  in  showing  cause  against  a  rule  call- 
in<T  upon  the  party  to  answer,  it  will  be  rejected.     In  re  Sawyer,  2  Q.  B.  721. 

°2  Davis  &  Carter's  Case,  2  Salk.  461 ;  Rex  v.  Gardner,  2  Burr.   1117  ;  Atcheson  v. 
Everitt,  Covvp.  382  ;  Skinner  v.  Perot,  1  Ashm.  57. 

3  Walker  v.  Kearney,  2  Stra.  1148  ;  Rex  v.  Gardner,  2  Burr.  1117. 
*  Jones  V.  Mason,  2  Stra.  833. 

1  6  Com.  Dig.  354,  Testm.  A,  5  ;  Rex  v.  Castell  Careinion,  8  East,  77  ;  Lee  v. 
Gansel,  Cowp.  3  ;  Bull.  N.  P.  292  ;  Fiteh  v.  Srnalbrook,  T.  Ray.  32  ;  People  v.  Whipple, 
9  Cowen,  707  ;  People  v.  Herrick,  13  Johns.  82  ;  Cushman  v.  Loker,  2  Mass.  108  ; 
Castellano  v.  Peiilon,  2  Martin,  N.  s.  466. 

2  Cooke  V.  Maxwell,  2  Stark.  183. 

3  Co.  Lit.  6  h:  Hawk.  P.  C.  b.  2,  c.  48,  §  22  ;  3  Inst.  212;  6  Com.  Dig.  354, 
Testm.  A,  5 ;  1  Stark.  Evid.  95,  96.  In  Scotland,  it  is  otherwise.  Tait's  Evid. 
p.  347. 

{a)  The  fact  that  such  a  witness  has     is   ground    for    setting    aside    a    verdict, 
been  admitted  to  testify,  even  though  he     State  v.  Mullen,  33  La.  An.  159. 
testifies  that  he  knows  nothing  of  the  case, 


518  LAW    OF    EVIDENCE,  [PART    III, 

virtually  confesses  his  guilt;  and  so  the  record  is  equivalent  to  a 
judgment  upon  confession.  If  the  guilt  of  the  party  should  be 
shown  by  oral  evidence,  and  even  by  his  own  admission  (though 
in  neither  of  these  modes  can  it  be  proved,  if  the  evidence  be  ob- 
jected to),  or,  by  his  plea  of  "guilty"  which  has  not  been  fol- 
lowed by  a  judgment,^  the  proof  does  not  go  to  the  competency 
of  the  witness,  however  it  may  affect  his  credibility.^ (a)  And 
the  judgment  itself,  when  offered  against  his  admissibility,  can 
be  proved  only  by  the  record,  or,  in  proper  cases,  by  an  authenti- 
cated copy,  which  the  objector  must  offer  and  produce  at  the  time 
when  the  witness  is  about  to  be  sworn,  or  at  farthest  in  the  course 
of  the  trial. 6  (b) 

§  376.  Judgment  of  foreign  tribunal.  Whether  judgment  of  an 
infamous  crime,  passed  by  a  foreign  tribunal,  ought  to  be  allowed 
to  affect  the  competency  of  the  party  as  a  witness,  in  the  courts 
of  this  country,  is  a  question  upon  which  jurists  are  not  entirely 
agreed.  But  the  weight  of  modern  opinion  seems  to  be,  that 
personal  disqualifications,  not  arising  from  the  law  of  nature,  but 
from  the  positive  law  of  the  country,  and  especially  such  as  are 
of  a  penal  nature,  are  strictly  territorial,  and  cannot  be  enforced 
in  any  country  other  than  that  in  which  they  originated.  ^  Ac- 
cordingly, it  has  been  held,  upon  great  consideration,  that  a  con- 
viction and  sentence  for  a  felony  in  one  of  the  United  States  did 
not  render  the  party  incompetent  as  a  witness  in  the  courts  of 
another  State;  though  it  might  be  shown  in  diminution  of  the 
credit  due  to  this  testimony.^  (c) 

*  Eex  V.  Hinks,  1  Denis.  Cr.  Cas.  84. 

6  Rex  V.  Castell  Careinion,  8  East,  77  ;  Wicks  v.  Smalbrook,  1  Sid.  51  ;  s.  c.  T.  Ray. 
32  ;  People  v.  Herrick,  13  Johns.  82. 

^  lb.  ;  Hilts  V.  Colvin,  14  Johns.  182;  Commonwealth  v.  Green,  17  Mass.  537.  In 
State  V.  Ridgely,  2  Har.  &  McHen.  120,  and  Clark's  Lessee  v.  Hall,  Id.  378,  which 
have  been  cited  to  the  contrary,  parol  evidence  was  admitted  to  prove  only  the  tact 
of  the  witness's  having  been  transported  as  a  convict,  not  to  prove  the  judgment  of 
conviction. 

i  Story  on  Confl.  of  Laws,  §§  91,  92,  104,  620-625  ;  Martens,  Law  of  Nations,  b.  3, 
c.  3,  §§  24,  25. 

2  Commonwealth  v.  Green,  17  Mass.  515,  539-549,  per  totam  Curiam  ;  contra, 
State  V.  Candler,  3  Hawks,  393,  per  Taylor,  C.  J.,  and  Henderson,  J.  ;  Hall,  J., 
diibitante,  but  inclining  in  favor  of  admitting  the  witness.  In  the  cases  of  State  v. 
Ridgely,  2  Har.  &  McHen.  120,  Clark's  Lessee  v.  Hall,  Id.  378,  and  Cole's  Lessee  v. 
Cole,  1  Har.  &  Johns.  572,  which  are  sometimes  cited  in  the  negative,  this  point  was 

(a)  People  v.  O'Neil,  109  N.  Y.  265.         The  judgment  must  be  shown.     Com.  v. 

(b)  The  same  rule    applies  when  it  is     Gorham,  99  Mass.  420. 

sought  to  to  impeach  the  credibility  of  a  (c)  Sims  v.  Sims,  75  N.  Y.   466;  Na- 

witness    by    showing    that    he    has    been  tional  Trust  Company  v.   Gleason,  77  Id. 

convicted    of  a  crime  which    would  have  400.     Contra,    State  v.  Foley,  15  Nev.  64, 

rendered  him  incompetent  at  common  law.  Cf.  Com.  v.  Hanlon,  3  Brewst.  (Pa.)  461. 


CHAP,    II.]  COMPETENCY    OF    WITNESSES.  519 

§  377.  How  this  disability  may  be  removed.  The  disahiHty  thus 
arising  from  infamy  may,  in  general,  be  removed  in  two  modes : 
(1)  by  reversal  of  the  judgment;  and  (2)  by  a  pardon.  The  re- 
versal of  the  judgment  must  be  shown  in  the  same  manner  that 
the  judgment  itself  must  have  been  proved;  namely,  by  produc- 
tion of  the  record  of  reversal,  or,  in  proper  cases,  by  a  duly  au- 
thenticated exemplification  of  it.  The  pardon  must  be  proved,  by 
production  of  the  charter  of  pardon,  under  the  great  seal.  And 
though  it  were  granted  after  the  prisoner  had  suffered  the  entire 
punislunent  awarded  against  him,  yet  it  has  been  held  sufficient 
to  restore  the  competency  of  the  witness,  though  he  would,  in 
such  case,  be  entitled  to  very  little  credit.^ 

§  378.  Pardon.  The  rule  that  a  pardon  restores  the  compe- 
tency and  completely  rehabilitates  the  party  is  limited  to  cases 
where  the  disability  is  a  consequence  of  the  judgment,  according 
to  the  principles  of  the  common  law.^  But  where  the  disability 
is  annexed  to  the  conviction  of  a  crime  by  the  express  words  of 
a  statute,  it  is  generally  agreed  that  the  pardon  will  not,  in  such 
a  case,  restore  the  competency  of  the  offender ;  the  prerogative  of 
the  sovereign  being  controlled  by  the  authority  of  the  express 
law.  Thus,  if  a  man  be  adjudged  guilty  on  an  indictment  for 
perjury,  at  common  law,  a  pardon  will  restore  his  competency. 
But  if  the  indictment  be  founded  on  the  statute  of  5  Eliz.  c.  9,  which 
declares  that  no  person,  convicted  and  attainted  of  perjury  or 
subornation  of  perjury,  shall  be  from  thenceforth  received  as  a 
witness  in  any  court  of  record,  he  will  not  be  rendered  competent 
by  a  pardon.  2 

not  raised  nor  considered  ;  they  bein,£f  cases  of  persons  sentenced  in  England  for  felony, 
and  transported  to  Maryland  under  the  sentence  prior  to  the  Revolution. 

3  United  States  v.  Jones,  2  Wheeler's  Cr.  Cas.  451,  per  Thompson,  J.  By  Stat. 
9  Geo.  IV.  c.  32,  §  3,  enduring  the  punishment  to  which  an  offender  has  been  sen- 
tenced for  any  felony  not  punishable  with  death  has  the  same  effect  as  a  pardon 
under  the  great  seal,  for  the  same  offence  ;  and  of  course  it  removes  the  disqualification 
to  testify.  And  the  same  eftect  is  given  by  §  4  of  the  same  statute,  to  the  endurance 
of  the  punishment  awarded  for  any  misdemeanor,  except  perjury  and  subornation  of 
perjury.  See  also  1  W.  IV.  c.  37,  to  the  same  effect ;  Tait  on  Evid.  pp.  346,  347.  But 
whether  these  enactments  have  proceeded  on  the  ground,  that  tlie  incompetency  is  in 
the  nature  of  punishment,  or,  that  the  offender  is  reformed  by  the  salutary  discipline 
he  has  undergone,  does  not  clearly  appear. 

1  If  the  pardon  of  one  sentenced  to  the  penitentiary  for  life  contains  a  proviso,  that 
nothing  therein  contained  shall  be  construed,  so  as  to  relieve  the  party  from  the  legal 
disabilities  consequent  upon  his  sentence,  other  than  the  imprisonment,  the  proviso  is 
void,  and  the  party  is  fully  rehabilitated.     People  v.  Pease,  3  Johns.  Cas.  333. 

2  Rex  V.  Ford,  2  Salk.  690  ;  Dover  v.  Maestacr,  5  Esp.  92,  94  ;  2  Kuss.  on  Crimes, 
595,  596  ;  Rex  v.  Greepe,  2  Salk.  513,  514  ;  Bull.  N.  P.  292  ;  Phil.  &  Am.  on  Evid. 
21,  22.  See  also  Mr.  Hargrave's  Juridical  Arguments,  vol.  ii.  p.  221  et  seq.,  where 
this  topic  is  treated  with  great  ability.  Whether  the  disability  is,  or  is  not,  made  a 
part  of  the  judgment,  and  entered  as  such  on  the  record,  does  not  seem  to  be  of  any  im- 
portance.    The  form  in  which  this  distinction  is  taken  in  the  earlier  cases  evidently 


520  LAW    OF   EVIDENCE.  [PART   III. 

§  379.  Accomplices.  The  case  of  accomplices  is  usually  men- 
tioned under  the  head  of  Infamy ;  but  we  propose  to  treat  it  more 
appropriately  when  we  come  to  speak  of  persons  disqualified  by 
interest,  since  accomplices  generally  testify  under  a  promise  or 
expectation  of  pardon  or  some  other  benefit.  But  it  may  here  be 
observed  that  it  is  a  settled  rule  of  evidence  that  a  particeps 
crimiius,  notwithstanding  the  turpitude  of  his  conduct,  is  not,  on 
that  account,  an  incompetent  witness  so  long  as  he  remains  not 
convicted  and  sentenced  for  an  infamous  crime.  The  admission 
of  accomplices,  as  witnesses  for  the  gOA^ernment,  is  justified  by 
the  necessity  of  the  case,  it  being  often  impossible  to  bring  the 
principal  offenders  to  justice  without  them.     The  usual  course  is, 

shows  that  its  force  was  understood  to  consist  in  this,  that  in  the  former  case  the  dis- 
ability was  declared  by  the  statute,  and  in  the  latter,  that  it  stood  at  common  law. 
"  Although  the  incapacity  to  testify,  especially  considered  as  a  mark  of  infamy,  may 
really  operate  as  a  severe  punishment  upon  the  party  ;  yet  there  are  other  considera- 
tions affecting  other  persons,  which  may  well  warrant  his  exclusion  from  the  halls  of 
justice.  It  is  not  consistent  with  the  interests  of  others,  nor  with  the  protection  which 
is  due  to  them  from  the  State,  that  they  should  be  exposed  to  the  peril  of  testimony 
from  ]iersons  regardless  of  the  obligation  of  an  oath  ;  and  hence,  on  grounds  of  public 
policy,  the  legislature  may  well  reipiire,  that  while  the  judgment  itself  remains  unre- 
versed, the  party  convicted  shall  not  be  heard  as  a  witness.  It  may  be  more  safe  to 
exclude  in  all  cases,  than  to  admit  in  all,  or  attempt  to  distinguish  by  investigating 
the  grounds  on  which  the  pardon  may  have  been  granted.  And  it  is  without  doubt  as 
clearly  within  the  jjower  of  the  legislature  to  modify  the  law  of  evidence,  by  declaring 
what  manner  of  persons  shall  be  competent  to  testify,  as  by  enacting,  as  in  the  Statute 
of  Frauds,  that  no  person  shall  be  heard  viva  voce  in  proof  of  a  certain  class  of  contracts. 
The  statute  of  Elizabeth  itself  seems  to  place  the  exception  on  the  ground  of  a  rule  of 
evidence,  and  not  on  that  of  a  penal  fulmination  against  the  offender.  The  intent  of 
the  legislature  appears  to  have  been  not  so  much  to  punish  the  party,  by  depriving  him 
of  the  privilege  of  being  a  witness  or  a  juror,  as  to  prohibit  the  courts  from  receiving 
the  oath  of  any  person  convicted  of  disregarding  its  obligation.  And  whether  this  con- 
sequence of  the  conviction  be  entered  on  tlie  record  or  not,  the  eHect  is  the  same.  The 
judgment  under  the  statute  being  properly  shown  to  the  judges  of  a  court  of  justice, 
their  duty  is  declared  in  the  statute,  independent  of  the  insertion  of  the  inhibition  as 
part  of  the  sentence,  and  unati'ected  by  any  subsequent  pardon.  The  legislature,  in  the 
exercise  of  its  yjower  to  punish  crime,  awards  fine,  imprisonment,  and  the  pillory  against 
the  offender  ;  in  the  discharge  of  its  duty  to  preserve  the  temple  of  justice  from  pollu- 
tion, it  repels  from  its  portal  tlie  man  who  feareth  not  an  oath.  Thus  it  appears  that 
a  man  convicted  of  peijury  cannot  be  sworn  in  a  court  of  justice,  while  the  judgment 
remains  unreversed,  though  his  offence  may  have  been  pardoned  after  the  judgment  ; 
but  the  reason  is  found  in  the  express  direction  of  the  statutes  to  the  courts,  and  not  in 
the  circumstances  of  the  disability  being  made  a  part  of  the  judgment.  The  pardon 
exerts  its  full  vigor  on  the  offender ;  but  is  not  allowed  to  operate  beyond  this,  upon 
the  rule  of  evidence  enacted  by  the  statute.  The  ])unishment  of  the  crime  belongs  to 
the  criminal  code  ;  the  rule  of  evidence  to  the  civil."  See  Amer.  Jur.  vol.  xi.  pp.  360- 
362.  In  several  of  the  United  States,  the  disqualification  is  expressly  declared  by 
statutes,  and  is  extended  to  all  the  crimes  therein  eimmerated  ;  comprehending  not 
only  all  the  varieties  of  the  crimen  falsi,  as  understood  in  the  common  law,  but  divers 
other  oH'ences.  In  some  of  the  States,  it  is  expressly  enacted,  that  the  pardon  of  one 
convicted  of  perjury  shall  not  restore  his  competency  as  a  witness.  See  Virginia,  Rev. 
Stat.  1849,  c.  199,  §  19  ;  Florida,  Thompson's  Dig.  p.  334  ;  Georgia,  Hotchkiss's  Dig. 
p.  730.  But  in  Ohio,  competency  is  restored  by  pardon.  Eev.  Stat.  1841,  c.  35,  §  41. 
In  Georgia,  convicts  in  the  penitentiary  are  competent  to  prove  an  escape  or  a  mutiny. 
Hotchk.  Dig.  supra.  And  see  New  Jersey,  Rev.  Stat.  1846,  tit.  8,  c.  1,  §  23  ;  Id.  tit. 
84,  c.  9,  §  1. 


CHAP.    II.]  COMPETENCY    OF   WITNESSES.  521 

to  leave  out  of  the  indictment  those  who  are  to  be  called  as  wit- 
nesses;  but  it  makes  no  difference  as  to  the  admissibility  of  an 
accomplice,  whether  he  is  indicted  or  not,  if  he  has  not  been  put 
on  his  trial  at  the  same  time  with  his  compnnions  in  crime.* 
He  is  also  a  competent  witness  in  their  favor ;  and  if  he  is  put  on 
his  trial  at  the  same  time  with  them,  and  there  is  only  very  slight 
evidence,  if  any  at  all,  against  him,  the  court  may,  as  we  have 
already  secn,'-^  and  generally  will,  forthwith  direct  a  separate  ver- 
dict as  to  him,  and,  upon  his  acquittal,  will  admit  him  as  a  wit- 
ness for  others.  If  he  is  convicted,  and  the  punishment  is  by  fine 
only,  he  will  be  admitted  for  the  others,  if  he  has  paid  the  fine.^ 
But  whether  an  accomplice  already  charged  with  the  crime,  by 
indictment,  shall  be  admitted  as  a  witness  for  the  government,  or 
not,  is  determined  by  the  judges,  in  their  discretion,  as  may  best 
serve  the  purpose  of  justice.  If  he  appears  to  have  been  the  prin- 
cipal offender,  he  will  be  rejected.^  And  if  an  accomplice,  hav- 
ing made  a  private  confession,  upon  a  promise  of  pardon  made  by 
the  attorney -general,  should  afterwards  refuse  to  testify,  he  may 
be  convicted  upon  the  evidence  of  that  confession.^ 

§  380.  How  far  credible.  The  degree  of  credit  which  ought  to 
be  given  to  the  testimony  of  an  accomplice  is  a  matter  exclusively 
within  the  province  of  the  jury.  It  has  sometimes  been  said  that 
they  ought  not  to  believe  him,  unless  his  testimony  is  corrobo- 
rated by  other  evidence ;  and,  without  doubt,  great  caution  in 
weighing  such  testimony  is  dictated  by  prudence  and  good  reason. 
But  there  is  no  such  rule  of  law;  it  being  expressly  conceded 
that  the  jury  may,  if  they  please,  act  upon  the  evidence  of  the 
accomplice,  without  any  confirmation  of  his  statement.*  {a)  But, 
on  the  other  hand,  judges,  in  their  discretion,  will  advise  a  jury 
not  to  convict  of  felony  upon  the  testimony  of  an  accomplice  alone 

1  See  Jones  f.  Georgia,  1  Kelly  (Ga.),  610. 

2  Supra,  §  302. 

3  2  Russ.  on  Crimes,  597,  600  ;  Rex  v.  Westheer,  1  Leach,  Cr.  Gas.  14  ;  Charnock's 
Case,  4  St.  Tr.  582  (ed.  1730);  s.  c.  12  Howell's  St.  Tr.  1454  ;  Rex  v.  Fletcher,  1  Stra. 
633.  The  rule  of  the  Roman  law,  "Nemo,  allegans  tnrpitudiuem  suam,  est  audien- 
diis,"  though  formerly  applied  to  witnesses,  is  now  to  that  extent  exploded.  It  can 
only  be  applied,  at  this  day,  to  the  case  of  a  party  seeking  relief.  See  infra,  §  383,  q. 
See  also  2  Stark.  Evid.  9,  10  ;  2  Hale,  P.  C.  280  ;  7  T.  R.  611  ;  Musson  v.  Fales,  16 
Mass.  335  ;  Churchill  v.  Suter,  4  Mass.  162  ;  Townsend  v.  Bush,  1  Conn.  267,  per 
Trumbull,  J. 

*  People  V.  Whipple,  9  Cowen,  707  ;  supra,  §  363. 

*  Commonwealth  v.  Knapp,  10  Pick.  477  ;  Rex  v.  Bnrley,  2  Stark.  Evid.  12,  n.  (r). 
1  Rex  V.  Hastings,  7  C.  &  P.  152,  per  Ld.  Denman,  C.  J.  ;  Rex  v.  Jones,  2  Campb. 

132,  per  Ld.  EUenborough  ;  s.  c.  31  Howell's  St.  Tr.  315  ;  Rex  v.  Atwood,  2  Leach, 
Cr.  Cas.  464  ;  Rex  v.  Durham,  Id.  478  ;  Rex  v.  Dawber,  3  Stark.  34  ;  Rex  v.  Barnard, 
1  C.  &  P.  87,  88  ;  People  v.  Gostello,  1  Denio  (N.  Y.).  83. 

(a)  Reg.  V.  Boyes,  9  Cox,  C.  C.  32. 


522  LAW    OP    EVIDENCE.  [PART   III. 

and  without  corroboration;  and  it  is  now  so  generally  the  prac- 
tice to  give  them  such  advice,  that  its  omission  would  be  regarded 
as  an  omission  of  duty  on  the  part  of  the  judge. 2(6)  And  con- 
sidering the  respect  always  paid  by  the  jury  to  this  advice  from 
the  bench,  it  may  be  regarded  as  the  settled  course  of  practice, 
not  to  convict  a  prisoner  in  any  case  of  felony  upon  the  sole  and 
uncorroborated  testimony  of  an  accomplice.  The  judges  do  not, 
in  cases,  withdraw  the  cause  from  the  jury  by  positive  direction  to 
acquit,  but  only  advise  them  not  to  give  credit  to  the  testimony. 

§  381.  What  corroboration  requisite.  But  though  it  is  thus  the 
settled  practice,  in  cases  of  felony,  to  require  other  evidence  in 
corroboration  of  that  of  an  accomplice,  yet,  in  regard  to  the 
manner  and  extent  of  the  corroboration  to  be  required,  learned 
judges  are  not  perfectly  agreed.  Some  have  deemed  it  sufficient, 
if  the  witness  is  confirmed  in  any  material  part  of  the  case;^ 

2  Roscoe's  Crim.  Evid.  p.  120  ;  2  Stark.  Evid.  12  ;  Eex  v.  Barnard,  1  C.  &  P.  87. 
For  the  limitation  of  this  practice  to  cases  of  felony,  see  Rex  v.  Jones,  31  Howell's  St. 
Tr.  315,  per  Gibbs,  Attor.-Gen.,  arg.  See  also  Rex  v.  Hargrave,  5  C.  &  P.  170,  where 
persons'present  at  a  fight,  which  resulted  in  manslaughter,  though  principals  in  the 
second  decrree,  were  held  not  to  be  such  accomplices  as  required  corroboration,  when  tes- 
tifying as  witnesses.  ,  ,     ,i  t  ^  i 

1  This  is  the  rule  in  Massachusetts,  where  the  law  was  stated  by  Morton,  J.,  as  fol- 
lows :  "1.  It  is  competent  for  a  jury  to  convict  on  the  testimony  of  an  accomplice 
alone.  The  principle  which  allows  the  evidence  to  go  to  the  jury,  necessarily  involves 
in  it  a  power  in  them  to  believe  it.  The  defendant  has  a  right  to  have  the  jury  decide 
upon  the  evidence  which  may  be  offered  against  him  ;  and  their  duty  will  require  of 
them  to  return  a  verdict  of  guilty  or  not  guilty,  according  to  the  conviction  which  that 
evidence  shall  produce  in  their  minds.  2  Hawk.  P.  C.  c.  46,  §  135  ;  1  Hale,  P.  C. 
304,  305  ;  Roscoe's  Crim.  Ev.  119  ;  1  Phil.  Ev.  32  ;  2  Stark.  Ev.  18,  20.  2.  But  the 
source  of  this  evidence  is  so  corrupt,  that  it  is  always  looked  upon  with  suspicion  and 
jealousy,  and  is  deemed  unsafe  to  rely  upon  without  confirmation.  Hence  the  court 
ever  consider  it  their  duty  to  advise  a  jury  to  acquit,  where  there  is  no  evidence  other 
than  the  uncorroborated  testimony  of  an  accomplice.  1  Phil.  Evid.  34  ;  2  Stark.  Evid. 
24  ;  Rex  v.  Durham,  2  Leach,  478  ;  Rex  v.  Jones,  2  Campb.  132  ;  1  Wheeler's  Crim. 
Cas.  418  ;  2  Rogers's  Recorder,  38  ;  5  Id.  95.  3.  The  mode  of  corroboration  seems  to  be 
less  certain.  It  is  perfectly  clear,  that  it  need  not  extend  to  the  whole  testimony  ;  but 
it  being  shown  that  the  accomplice  has  testified  truly  in  some  particulars,  the  jury  may 
infer  that  he  has  in  others.  But  what  amounts  to  corroboration  ?  We  think  the  rule 
is,  that  the  corroborative  evidence  must  relate  to  some  portion  of  the  testimony  which 
is' material  to  the  issue.  To  prove  that  an  accomplice  had  told  the  truth  in  relation  to 
irrelevant  and  immaterial  matters,  which  were  known  to  everybody,  would  have  no 
tendency  to  confirm  his  testimony,  involving  the  guilt  of  the  party  on  trial.  If  this 
were  the  ease,  every  witness,  not  incompetent  for  the  want  of  understanding,  could 
always  furnish  materials  for  the  corroboration  of  his  own  testimony.  If  he  could  state 
where  he  was  born,  where  he  had  resided,  in  whose  custody  he  had  been,  or  in  what 
jail,  or  what  room  in  the  jail,  he  had  been  confined,  he  might  easily  get  confirmation 
of  a'll  these  particulars.  But  these  circumstances  having  no  necessary  connection  with 
the  guilt  of  the  defendant,  the  proof  of  the  correctness  of  the  statement  in  relation  to 
them  would  not  conduce  to  prove  that  a  statement  of  the  guilt  of  the  defendant  was 
true.     Roscoe's  Crim.  Evid.  120;  Rex  v.  Addis,  6  C.  &  P.   388."  (a)     See  Common- 

(6)  Reg.  V.  Stubbs,  7  Cox,    C.   C.    48.  58  Me.  267  ;   Carroll  v.  Com.,  84  Pa.  St. 

But  not  a  sufficient  error  to  authorize  an  107. 

appellate   court    to    set   aside    a   verdict.  (a)  In  Com.  i).  Holmes,  127  Mass.  424, 

Reg.  V.  Stubbs,  sitpra  ;  State  v.  Litchfield,  it  was  held  that  the  evidence  should  tend 


CHAP.    II.] 


COMPETENCY    OF    WITNESSES. 


623 


others  have  required  conlirmatory  evidence  as  to  the  corpus  delicti 
only ;  and  others  have  thought  it  essential  that  there  should  be 
corroborating  proof  that  the  prisoner  actually  participated  in  the 
offence;  and  that,  when  several  prisoners  are  to  be  tried,  con- 
firmation is  to  be  required  as  to  all  of  them  before  all  can  be 
safely  convicted ;  the  confirmation  of  the  witness,  as  to  the  com- 
mission of  the  crime,  being  regarded  as  no  confirmation  at  all,  as 
it  respects  the  prisoner.     For,  in  describing  the  circumstances  of 

wealth  V.  Bosworth,  22  Pick.  397,  399,  400  ;  People  v.  Costello,  1  Denio,  83.  A  similar 
view  of  the  nature  of  corroborative  evidence,  in  cases  where  such  evidence  is  necessaiy, 
was  taken  by  Dr.  Lusliington,  who  held  that  it  meant  evidence,  not  merely  showing 
that  the  account  given  is  probable,  but  proving  facts  ejusdem  cjeneris,  and  tending  to 
produce  the  same  result.  Simmons  v.  Simmons,  11  Jur.  830.  And  see  Maddox  v. 
Sullivan,  2»iUch.  Etj.  4. 


to  connect  the  accused  with  the  crime. 
Gray,  C.  J.,  after  giving  a  thorough  re- 
view of  the  authorities  and  commenting 
on  the  decision  in  Com.  v.  Bosworth,  says  : 
"It  thus  appears  that  the  decision  in 
Com.  V.  Bosworth  establishes  two  points  : 
1.  That  if  any  evidence  is  admitted  as 
competent  by  way  of  corroborating  an  ac- 
complice, so  as  to  make  it  safe  for  the  jury 
to  convict,  which  is  not  legally  entitled  to 
that  effect,  it  is  a  subject  of  exceptions  and 
ground  for  a  new  trial.  2.  That  no  evi- 
dence can  be  legally  admitted  as  competent 
and  sufficient  for  such  corroboration  which 
does  not  tend  to  confirm  the  testimony  of 
the  accomplice  upon  a  point  material  to 
the  issue  in  the  sense  that  it  tends  to  prove 
the  guilt  of  the  defendant."  This  case  was 
corroborated  in  Com.  v.  Hayes,  140  i\Iass. 
366,  and  it  was  there  said  tliat  the  evidence 
of  the  accomplice  must  tend  to  connect  the 
defendant  with  the  crime  charged.  In 
that  case,  the  accomplice  testified  that  he 
and  the  defemlant  formed  a  plan  of  steal- 
ing goods  in  places  in  one  county  and  sell- 
ing them  at  places  in  another,  and  that 
larcenies  were  committed  in  the  said  places 
and  the  goods  disposed  of  as  arranged. 
This  testimony  of  the  accomplice  was  cor- 
roborated by  independent  evidence  of  the 
commission  of  the  larcenies.  The  indict- 
ment on  trial  was  for  lardfeny  in  the  county 
where  the  goods  were  sold,  said  larceny 
being* based  on  the  asportation  of  the  goods 
by  the  defendant  in  that  county.  It  was 
held  that  this  independent  evidence  tended 
to  corroborate  the  evidence  of  the  accom- 
plice by  showing  the  connection  of  the  de- 
fendant with  the  larcenies  which  the  ac- 
complice had  testified  to  as  being  the 
beginning  of  the  continuous  act  which  re- 
sulted in  the  crime  for  which  the  defen- 
dant was  indicted.  In  New  York,  the  rule 
is  enacted  by  statute,  section  399  of  the 


Code  of  Criminal  Procedure,  which  pro- 
vides that  "a  conviction  cannot  be  had 
upon  the  testimony  of  an  accomplice,  un- 
less he  be  corroborated  by  such  other  evi- 
dence as  tends  to  connect  the  defendant 
with  the  commission  of  the  crime."  Prior 
to  the  enactment  of  this  section,  it  was 
customary  forjudges  to  instruct  jurors  that 
they  should  not  convict  a  defendant  of 
crime  upon  the  evidence  of  an  accom- 
plice, unless  such  evidence  was  corrob- 
orated ;  and  yet  it  was  the  law  in  this 
State  that  a  defendant  could  be  con- 
victed upon  the  uncorroborated  evidence 
of  an  accomplice  if  the  jury  believed 
it.  This  section  has  changed  that  rule 
of  law  and  simply  requires  that  there 
should  be  corroborative  evidence,  which 
tends  to  connect  the  defendant  with 
the  commission  of  the  crime.  Peo|>le  v. 
Everhardt,  104  N.  Y.  594.  "  See  also  Peo- 
ple V.  Ogle,  104  N.  Y.  515.  The  rule 
embodied  in  the  statute  does  not  require 
that  the  whole  case  should  be  proved  out- 
side of  the  testimony  of  the  accomplice. 
Such  a  rule  would  render  the  testimony  of 
an  accomplice  in  most  cases  unnecessary, 
and  would  defeat  the  policy  of  the  law 
which  permits  the  use  of  accomplices  as 
witnesses  in  aid  of,  and  in  the  interest  of 
public  justice.  People  v.  Hooghkerk,  96 
N.  Y.  162.  In  a  recent  case  in  Pennsyl- 
vania, the  rule  as  stated  in  the  author's 
text  is  affirmed  as  follows  :  "A  jury  may 
believe  an  uncorroborated  accomplice,  and 
if  his  testimony  produces  in  their  minds  a 
conviction  of  the  defendant's  guilt,  beyond 
a  reasonable  doubt,  they  may  convict.  If 
the  testimony  of  the  accomplice,  his  man- 
ner of  testifying,  his  appearance  upon  the 
witness  stand,  imjjress  the  jury  with  the 
truth  of  his  statement,  there  is  no  inflexi- 
ble rule  of  law  which  prevents  a  convic- 
tion."    Cox  V.  Com.,  125  Pa.  St.  103. 


524  LAW   OF   EVIDENCE.  [PART   III. 

the  offence,  he  may  have  no  inducement  to  speak  falsely,  but  may 
have  every  motive  to  declare  the  truth,  if  he  intends  to  be  be- 
lieved, when  he  afterwards  fixes  the  crime  upon  the  prisoner.  ^ 
If  two  or  more  accomplices  are  produced  as  witnesses,  they  are 
not  deemed  to  corroborate  each  other ;  but  the  same  rule  is  ap- 
plied, and  the  same  confirmation  is  required,  as  if  there  were  but 


one, 


3 


§  382.  Apparent  accomplices.  There  is  one  class  of  persons 
apparently  accomplices,  to  whom  the  rule  requiring  corroborating 
evidence  does  not  apply ;  namely,  persons  who  have  entered  into 
communication  with  conspirators,  but  either  afterwards  repent- 
ing, or,  having  originally  determined  to  frustrate  the  enterprise, 
have  subsequently  disclosed  the  conspiracy  to  the  public> authori- 
ties, under  whose  direction  they  continue  to  act  with  their  guilty 
confederates  until  the  matter  can  be  so  far  advanced  and  matured, 
as  to  insure  their  conviction  and  punishment.  The  early  disclo- 
sure is  considered  as  binding  the  party  to  his  duty ;  and  though  a 
great  degree  of  objection  or  disfavor  may  attach  to  him  for  the 
part  he  has  acted  as  an  informer,  or  on  other  accounts,  yet  his 
case  is  not  treated  as  the  case  of  an  accomplice.^  (a) 

2  Rex  V.  Wilkes,  7  C.  &  P.  272,  per  Alderson,  B.  ;  Rex  v.  Moore,  Id.  270  ;  Rex  v. 
Addis,  6  C.  &  P.  388,  per  Patteson,  J.  ;  Hex  v.  Wells,  1  Mood.  &  M.  326,  per  Little- 
dale,  J.  ;  Rex  V.  Webb,  (3  C.  &  P.  f.95  ;  Reg.  v.  Dyke,  8  C.  &  P.  261  ;  Reg.  v.  Birkett, 
8  C.  &  P.  732  ;  Commonwealth  v.  Bosworth,  22  Pick.  399,  per  Mortqn,  J.  The  course 
of  opinions  and  practice  on  this  subject  is  stated  more  at  large  in  1  Phil.  Evid.  pp.  30- 
38  ;  2  Russ.  on  Crimes,  pp.  956-968,  and  in  2  Stark.  Evid.  p.  12,  n.  (.r),  to  which  the 
learned  reader  is  referred.  See  also  Roscoe's  Crini.  Evid.  p.  120.  Chief  Baron  Joy, 
after  an  elaborate  examination  of  English  authorities,  states  the  true  rule  to  be  this, 
that  "the  confirmation  ought  to  be  in  such  and  so  many  parts  of  the  accomplice's  nar- 
rative, as  may  reasonably  satisfy  the  jury  that  he  is  telling  truth,  without  restricting 
the  confirmation  to  any  particular  points,  and  leaving  the  effect  of  such  confirmation 
(which  may  vary  in  its  effect  according  to  the  nature  and  circumstances  of  the  par- 
ticular case)  to  the  consideration  of  the  jury,  aided  in  that  consideration  by  the  obser- 
vations of  the  judge."  See  Joy  on  the  Evidence  of  Accomplices,  pp.  98,  99.  By  the 
Scotch  law,  the  evidence  of  a  single  witness  is  in  no  case  sufficient  to  warrant  a  con- 
viction, unless  su{)ported  by  a  train  of  circumstances.  Alison's  Practice,  p.  551.  In 
Iowa,  it  is  required  by  statute,  that  the  corroboration  be  such  as  shall  tend  to  connect 
the  defendant  with  the  commission  of  the  offence  ;  and  not  merely  to  show  the  com- 
mission of  the  crime,  or  its  circumstances.     Code  of  1851,  art.  2998. 

3  Rex  V.  Noakes,  5  C.  &  P,  326,  per  Littledale,  J.  ;  Reg.^.  Bannen,  2  Mood.  Cr. 
Cas.  309.  The  testimony  of  the  wife  of  an  accomplice  is  not  considered  as  corrobora- 
tive of  her  husband.     Rex  v.  Neal,  7  C.  &  P.  168,  per  Park,  J. 

1  Rex  V.  Despard,  28  Howell's  St.  Tr.  489,  per  Lord  EUenborough. 

(a)  This  paragraph  about  disfavor,  and  liquor  sold  contrary  to  law,  for  the  express 

in  fact  the  whole    section    is  taken  from  purpose  of  prosecuting  the  seller   for   an 

Lord    Eilenborough's    charge    in    Rex    v.  unlawful  sale,  is  not  an  accomplice.     Com. 

Despard,  and,  whether  called  for  or  not  in  v.  Downing,  4  Gray  (Mass.),  29.     One  who 

this  case,  which  does  not  appear,  is  wholly  enters  into  communication  with  criminals, 

inappropriate  as  a  general  observation  ap-  and,  without  a  criminal  intent,  advises  or 

plying  to  all  who  so  aid  in  ferreting  out  aids  them  in  the  commission  of  crime,  but 

villains.     One  who  purchases  intoxicating  for  the  sole  purpose  of  detecting  the  crimi- 


Chap,  ii.]  competency  of  witnesses.  525 

§  383.  Parties  may  testify  to  their  own  fraud.  Whether  a  party 
to  a  negotiable  instrument^  who  has  given  it  credit  and  currency 
by  his  signature,  shall  afterwards  be  admitted  as  a  witness,  in  a 
suit  between  other  persons,  to  prove  the  instrument  originally 
void,  is  a  question  upon  which  judges  have  been  much  divided  in 
opinion.  The  leading  case  against  the  admissibility  of  the  witness 
is  that  of  Walton  v.  Shelley, 3  in  which  the  indorscr  of  a  prom- 
issory note  was  called  to  prove  it  void  for  usury  in  its  original 
concoction.  The  security  was  in  the  hands  of  an  innocent  holder. 
Lord  Mansfield  and  the  other  learned  judges  held  that  upon  gen- 
eral grounds  of  public  policy  the  witness  was  inadmissible;  it 
being  "of  consequence  to  mankind  that  no  person  should  hang 
out  false  colors  to  deceive  them,  by  first  affixing  his  signature  to 
a  paper,  and  then  afterwards  giving  testimony  to  invalidate  it. " 
And,  in  corroboration  of  this  opinion,  they  referred  to  the  spirit 
of  that  maxim  of  the  Roman  law,  "Nemo,  allegans  suam  turpi- 
tudinem,  est  audiendus.  "* 

§  384.  Same  subject.  The  doctrine  of  this  case  afterwards 
came  under  discussion  in  the  equally  celebrated  case  of  Jordaine 
V.  Lashbrooke.^  This  was  an  action  by  the  indorsee  of  a  bill  of 
exchange  against  the  acceptor.  The  bill  bore  date  at  Hamburg; 
and  the  defence  was,  that  it  was  drawn  in  London,  and  so  was 
void  at  its  creation,  for  want  of  a  stamp,  the  statute  ^  having  de- 

3  1  T.  R.  296. 

*  This  maxim,  though  it  is  said  not  to  be  expressed,  in  tenns,  in  the  text  of  the 
Corpus  Juris  (see  Gilmer's  Rep.  p.  275,  n.),  is  exceedingly  familiar  among  the  civilians; 
and  is  found  in  their  commentaries  on  various  laws  in  the  Code.  See  Corpus  Juris 
Glossatum,  tom.  iv.  col.  461,  1799;  Corp.  Juris  Gothofredi  (fol.  ed.)  Cod.  lib.  7,  tit.  8, 
1.  5,  in  margine;  Codex  Justiniani  (4to  Parisiis,  1550),  lib.  7,  tit.  16,  1.  1  ;  Id.  tit.  8, 
1.  5,  in  margine  ;  1  Mascard.  De  Prob.  Concl.  78,  n.  42.  And  see  4  Inst.  279.  It 
seems  formerly  to  have  been  deemed  sufficient  to  exclude  witnesses,  testifying  to  their 
own  turpitude;  but  the  objection  is  now  held  to  go  only  to  the  credibility  of  the  tes- 
timony. 2  Stark.  Evid.  9,  10  ;  2  Hale,  P.  C.  280  ;  7  T.  R.  609,  per  Grose,  J.  ;  Id. 
611,  per  Lawrence,  J.  Thus,  a  witness  is  competent  to  testify  that  his  former  oath 
was  corruptly  false.     Rex  v.  Teal,  11  East,  309;  Rands  v.  Thomas,  5  M.  &  S.  244. 

1  7  T.  R.  599. 

2  31  Geo.  III.  c.  25,  §§  2,  16.  This  act  was  passed  subsequent  to  the  decision  of 
Walton  V.  Shelley,  1  T.  R.  296. 

nals,  whether  a  public  officer  or  a  private  it  has  been  said,  will  depend  much  upon 
citizen,  is  not  an  accomplice.  State  v.  the  nature  of  the  crime  (Rex  v.  Jarvis,  2 
McKean,  36  Iowa,  343.  Nor  is  the  woman  M.  &  Rob.  40)  ;  and  if  the  offence  be  a 
upon  whom  an  abortion  is  procured.  To  statute  one,  as  the  non-repair  of  a  high- 
be  an  accomplice,  one  must  be  indictable  way  ;  or  involve  no  great  moral  delin- 
as  a  participator  in  the  offence.  Com.  quency,  as  being  present  at  a  prize-fight 
V.  Wood,  11  Gray  (Mass.),  85;  Com.  v.  which  terminated  in  manslaughter  (Rex i». 
Boynton,  116  Mass.  343.  The  practice  of  Hargrave,  5  C.  &  P.  170  ;  Reg.  v.  Young, 
caution  from  the  bench  is  not  so  uniform  19  Cox,  C.  C.  371)  ;  or  the  action  be  for 
in  the  case  of  misdemeanors  as  in  felonies,  a  penalty,  — the  caution  has  been  refused, 
though  the  distinction  is  rather  one  of  McCIory  v.  Wiight,  10  Ir.  Law,  614; 
degree  than  of  kind  (Reg.  v.  Farler,  8  C.  Magee  v.  Mark,  11  Id.  449. 
&  P.  106);  and  the  extent  of  corroboration. 


526  LAW    OF    EVIDENCE.  [PART    III, 

clarod  that  unstamped  bills  should  neither  be  pleaded,  given  in 
evidence,  nor  allowed  to  be  available  in  law  or  equity.  The  in- 
dorser  was  offered  by  the  defendant  as  a  witness  to  prove  this 
fact,  and  the  court  held  that  he  was  admissible.  This  case 
might,  perhaps,  have  formed  an  exception  to  the  general  rule 
adopted  in  Walton  v.  Shelley,  on  the  ground  that  the  general 
policy  of  the  law  of  commerce  ought  to  yield  to  the  public  neces- 
sity in  matters  of  revenue ;  and  this  necessity  was  relied  upon  by 
two  of  the  three  learned  judges  who  concurred  in  the  decision. 
But  they  also  concurred  with  Lord  Kenyon  in  reviewing  and  over- 
ruling the  doctrine  of  that  case.  The  rule,  therefore,  now  re- 
ceived in  England  is,  that  the  party  to  any  instrument,  whether 
negotiable  or  not,  is  a  competent  witness  to  prove  any  fact  to 
which  any  other  witness  would  be  competent  to  testify,  provided 
he  is  not  shown  to  be  legally  infamous,  and  is  not  directly  inter- 
ested in  the  event  of  the  suit.  The  objection,  that  thereby  he 
asserts  that  to  be  false  which  he  has  solemnly  attested  or  held 
out  to  the  world  as  true,  goes  only  to  his  credibility  with  the 
jury.  3 

§  385.  Rule  in  the  United  States  not  uniform.  The  courts  of 
some  of  the  American  States  have  adopted  the  later  English  rule, 
and  admitted  the  indorser,  or  other  party  to  an  instrument,  as  a 
competent  witness  to  impeach  it  in  all  cases  where  he  is  not  on 
other  grounds  disqualified.  In  other  States,  decisions  are  found 
which  go  to  the  exclusion  of  the  party  to  an  instrument  in  every 
case,  when  offered  as  a  witness  to  defeat  it,  in  the  hands  of  a 
third  person ;  thus  importing  into  the  Law  of  Evidence  the  maxim 
of  the  Roman  law  in  its  broadest  extent.  In  other  States,  the 
courts,  referring  the  rule  of  exclusion  to  the  ground  of  public 
convenience,  haye  restricted  its  application  to  the  case  of  negoti- 
able security  actually  negotiated  and  put  into  circulation  before 
its  maturity,  and  still  in  the  hands  of  an  innocent  indorsee,  with- 
out notice  of  the  alleged  original  infirmity,  or  any  other  defect  in 
the  contract.  And  in  this  case  the  weight  of  American  authority 
may  now  be  considered  as  against  the  admissibility  of  the  wit- 

3  1  Phil.  Evid.  39,  40.  On  this  ground,  parties  to  other  instruments,  as  well  as  sub- 
scribing witnesses,  if  not  under  some  other  disability,  are,  both  in  England  and  in  the 
United  States,  held  admissible  witnesses  to  impeach  the  original  validity  of  such  instru- 
ments. 7  T.  R.  611,  per  Lawrence,  J.  ;  Heward  v.  Shipley,  4  East,  180  ;  Lowe  v. 
Jolliffe,  1  W.  Bl.  365  ;  Austin  v.  Willes,  Bull.  N.  P.  264  ;  Howard  v.  Braithwaite,  1 
Ves.  &  B.  202,  208  ;  Title  v.  Grevett,  2  I.d.  Raym.  1008  ;  Dickinson  v.  Dickinson,  9 
Met.  471;  Twambly  v.  Henley,  4  Mass.  441.  It  has,  however,  been  held  in  Louisiana, 
that  a  notary  cannot  be  examined  as  a  witness,  to  contradict  a  statement  made  by  him 
in  a  protest  ;  and  that  the  p-  inciple  extends  to  every  public  officer,  in  regard  to  a  cer- 
tificate given  by  him  in  his  official  character.     Peet  v.  Dougherty,  7  Rob.  La.  85. 


CHAP.    II.]  COMPETENCY   OF    WITNESSES.  527 

ness  to  impeach  the  original  validity  of  the  security ;  although 
the  contrary  is  still  holden  in  some  courts,  whose  decisions,  in 
general,  are  received  with  the  highest  respect.  ^ 

1  The  rule,  that  the  inilorser  of  a  negotiable  security,  negotiated  before  it  was  due, 
is  not  admissible  as  a  witness  to  prove  it  originally  void,  when  in  the  hands  of  an  inno- 
cent indorsee,  is  sustained  by  the  Supreme  Court  of  the  United  Slates,  in  Bank  of  the 
United  States  v.  Dunn,  6  Peters,  51,  57,  explained  and  confirmed  in  Bank  of  the  Metro- 
polis V.  Jones,  8  Peters,  12,  and  in  the  United  States  v.  Leffler,  11  Peters,  86,  94,  95  ; 
Scott  V.  Lloyd,  12  Peters,  149;  Henderson  v.  Anderson,  3  Howard,  S.  C.  73;  Taylor w. 
Luther,  2  Sumner,  235,  per  Story,  J.  It  was  also  adopted  in  Massadiuaetts,  Churchill 
V.  Sute'r,  4  Mass.  156  ;  Fox  v.  Whitney,  16  Mass.  118  ;  Packard  v.  Richardson,  17 
Mass.  122.  See  also  the  case  of  Thayer  v.  Grossman,  1  Metcalf,  416,  in  which  the  deci- 
sions are  reviewed,  and  the  rule  clearly  stated  and  vindicated  by  Shaw,  C.  J.  And  in 
New  Hami)shire,  Bryant  v.  Rittersbush,  2  N.  H.  212;  Hadduck  v.  Wilniarth,  5  N.  H. 
187.  And  in  Maine,  Deering  ?;.  Sawtel,  4  Greenl.  191  ;  Chandler  v.  Morton,  5  Greenl. 
374.  And  in  Pennsylvania,  O'Brien  v.  Davis,  6  Watts,  498;  Harrisburg  Bank  v.  Fors- 
ter,  8  Watts,  304,  309;  Davenport  v.  Freeman,  3  Watts  &  Serg.  557.  In  Louisiana, 
the  rule  was  stated  and  conceded  by  Porter,  J.,  in  Shamburg  r.  Commagere,  10  Martin, 
18;  and  was  again  stated,  but  an  opinion  withheld,  by  Martin,  J.,  in  Cox  v.  Williams, 
5  Martin,  N.  s.  139.  In  Vermont,  the  case  of  Jordaine  v.  Lashbrooke  was  followed,  in 
Nichols  V.  Holgate,  2  Aik.  138  ;  but  the  decision  is  said  to  have  been  subsequently 
disapproved  by  all  the  judges,  in  Chandler  v.  Mason,  2  Vt.  198,  and  the  rule  in  Walton 
i;.  Shelley  apinoved.  In  Ohio,  the  indorser  was  admitted  to  prove  facts  subsequent,  to 
the  indorsement;  the  court  expressing  no  opinion  upon  the  general  rule,  though  it  was 
relied  upon  by  the  opposing  counsel.  Stone  v.  Vance,  6  Ohio,  246.  But  subseciuently 
the  rule  seems  to  have  been  admitted.  Rohrer  v.  Morningstar,  18  Ohio,  579.  In  Mis- 
sissippi, the  witness  was  admitted  for  the  same  purpose  ;  and  the  rule  in  Walton  v. 
Shelley  was  approved.  Drake  v.  Henly,  Walker,  541.  In  Illinois,  the  indorser  has 
been  admitted,  where,  in  taking  the  note,  he  acted  as  the  agent  of  the  indorsee,  to 
whom  he  immediately  transferred  it,  without  any  notice  of  the  rule.  Webster  v. 
Vickers,  2  Scam.  295.  But  the  rule  of  exclusion  has  been  rejected,  and  the  general  doc- 
trine of  Jordaine  v.  Lashbrooke  followed  in  New  York,  Stalford  v.  Rice,  5  Cowen,  23  ; 
Bank  of  Utica  v.  Hillard,  Id.  153;  Williams  v.  Walbridge,  3  Wend.  415.  And  in  Vir- 
ginia, Taylor  v.  Beck,  3  Randolph,  316.  And  in  Connecticut,  Townsend  v.  Bush,  1 
Conn.  260.  And  in  South  Carolina,  Knight  v.  Packard,  3  McCord,  71.  And  in  Ten- 
nessee, Stumpy.  Napier,  2  Verger,  35.  In  Maryland,  it  was  rejected  by  three  judges 
against  two  in  Ringgold  v.  Tyson,  3  H.  &  J.  172.  It  was  also  rejecited  in  New  Jersey, 
in  Freeman  v.  Brittin,  2  Harrison,  192.  And  in  North  Carolina,  Guy  v.  Hall,  3  Mur- 
phy, 151.  And  in  Georgia,  Slack  v.  Moss,  Dudley,  161.  And  in  Alabama,  Todd  v. 
Stafford,  1  Stew.  199 ;  Griffing  v.  Harris,  9  Porter,  226.  In  Kentucky,  in  the  case  of 
Gorham  v.  Carroll,  3  Littel,  221,  where  the  indorsee  was  admitted  as  a  witness,  it  is  to 
be  observed,  that  the  note  was  indorsed  without  recourse  to  him,  and  thereby  marked 
with  sus])icion;  and  that  the  general  rule  was  not  considered.  More  recently  in  New 
Hampshire,  doctrine  of  Walton  v.  Shelley  has  been  denied,  and  the  rule  of  the 
Roman  law  has  been  admitted  only  as  a  rule  of  estoppel  upon  the  parties  to  the  transac- 
tion and  in  regard  to  their  rights,  and  not  as  a  rule  of  evidence,  affecting  the  competency 
of  witnesses  ;  and  therefore  the  maker  of  a  note,  being  released  by  his  surety,  was  held 
competent  in  an  action  by  an  indorsee  against  the  surety,  to  testify  to  an  alteration  of 
the  note,  made  by  himself  and  the  pavee,  which  rendered  it  void  as  to  the  surety. 
Haines  v.  Dennett,  11  N.  H.  180.  See  "further,  2  Stark.  Evid.  179,  n.  («);  Bayley  on 
Bills,  p.  586,  n.  b  (Phillips  and  Sewall's  ed.).  But  all  these  decisions  against  the  rule 
in  Walton  v.  Shelley,  except  that  in  New  Jersey  and  the  last  cited  case  in  New  Hamp- 
shire, were  made  long  before  that  rule  was  recognized  and  adopted  by  the  Suprenre 
Court  of  the  United  States.  The  rule  itself  is  restricted  to  cases  where  th-!_  witness  is 
called  to  prove  that  the  security  was  actually  void  at  the  time  when  he  gave  it  currency 
as  good;  and  this  in  the  ordinary  course  of  business,  and  without  any  mark  or  intima- 
tion to  put  the  receiver  of  it  on  his  guard.  Hence  the  indorser  is  a  competent  witness, 
if  he  indorsed  the  note  "  without  recourse  "  to  himself  (Abbott  u.  Mitchell,  6  Shepl. 
35«)  ;  or,  is  called  to  prove  a  fact  not  going  to  the  original  infirmity  of  the  security 
(Buckr.  Appleton,  2  Sliepl.  284;  Wendell  v.  George,  R.  M.  Charlton,  51);  or,  if  the 
instrument  was  negotiated  out  of  the  usual  course  of  birsiness  (Parke  v.  Smith,  4  Watts 


528  LAW    OF    EVIDENCE.  '     [PART    III. 

§  886.  Disqualification  by  interest  in  the  result.  Another  class 
of  persons  incompetent  to  testify  in  a  cause  consists  of  those  who 
are  interested  in  its  result.'^  The  principle  on  which  these  are 
rejected  is  the  same  with  that  which  excludes  the  parties  them- 
selves, and  which  has  already  been  considered  ;2  namely,  the 
danger  of  perjury,  and  the  little  credit  generally  found  to  be  due 
to  such  testimony,  in  judicial  investigations.  This  disqualifying 
interest,  however,  must  be  some  legal,  certain,  and  immediate 
interest,  however  minute,  either  in  the  event  of  the  cause  itself, 
or  in  the  record,  as  an  instrument  of  evidence,  in  support  of  his 
own  claims,  in  a  subsequent  action.  ^  It  must  be  a  legal  interest, 
as  distinguished  from  the  prejudice  or  bias  resulting  from  friend- 
ship or  hatred,  or  from  consanguinity,  or  any  other  domestic  or 
social  or  any  official  relation,  or  any  other  motives  by  which  men 
are  generally  influenced;  for  these  go  only  to  the  credibility. 
Thus,  a  servant  is  a  competent  witness  for  his  master,  a  child  for 
his  parent,  a  poor  dependant  for  his  patron,  an  accomplice  for  the 
government,  and  the  like.  Even  a  wife  has  been  held  admissible 
against  a  prisoner,  though  she  believed  that  his  conviction  would 
save  her  husband's  life.^  The  rule  of  the  Roman  law  —  "Idonei 
non  videntur  esse  testes,  quibus  imperari  potest  ut  testes  fient."  ^ 
—  has  never  been  recognized  in  the  common  law,  as  affecting  the 
competency;  but  it  prevails  in  those  countries  in  whose  juris- 

&  Serg.  287).  So,  the  indorser  of  an  accommodation  note,  made  for  his  henefit,  being 
released  by  the  maker,  is  admissible  as  a  witness  for  the  latter,  to  prove  that  it  has  sub- 
sequently been  paid.  Greenough  v.  West,  8  N.  H.  400.  And  see  Kinsley  v.  Robinson, 
21  Pick.  327. 

1  In  Connecticut,  persons  interested  in  the  cause  are  now,  by  statute,  made  compe- 
tent witnesses,  the  objection  of  interest  going  only  to  their  credibility.  Rev.  Stat. 
1849,  tit.  1,  §  141.  In  New  York,  persons  interested  are  admissible,  except  those  for 
whose  immediate  benefit  the  suit  is  prosecuted  or  defended,  and  the  assignor  of  a  thing 
in  action,  assigned  for  the  purpose  of  making  him  a  witness.  Rev.  Stat.  vol.  iii.  p. 
769  (3d  ed.).  In  Ohio,  the  law  is  substantially  the  same.  Stat.  March  23,  1850,  §  3. 
In  Michigan,  all  such  persons  are  admissible,  except  parties  to  the  record,  and  persons 
for  whose"  immediate  benefit  the  suit  is  prosecuted  or  defended  ;  and  their  husbands 
ajid  wives.  Rev.  Stat.  1846,  c.  102,  §  99.  In  Virginia,  persons  interested  are  admis- 
sible in  criminal  cases,  when  not  jointly  tried  with  the  defendant.  Rev.  Stat.  1849, 
c.  199,  §  21.  In  Massachusetts,  the  objection  of  interest  no  longer  goes  to  the  compe- 
tency of  any  witnesses,  except  witnesses  to  wills.  Gen.  Stat.  c.  131,  §  14.  See  supra, 
§§  327,  329,  notes. 

2  Suirra,  §§  326,  327,  329.  And  see  the  observations  of  Best,  C.  J.,  in  HoviU  v. 
Stephenson,  5  Bing.  493. 

3  1  Stark.  Evid.  102  ;  Bent  v.  Baker.  3  T.  R.  27  ;  Doe  r.  Tyler,  6  Bmg.  390,  per 
Tindal,  C.  J.  ;  Smith  v.  Prager,  7  T.  R.  62  ;  Wilcox  v.  Farrell,  1  H.  Lords  Cas.  93 ; 
Bailey  v.  Lumkin,  1  Kelly,  392. 

4  Rex  V.  Rudd,  1  Leach,  Cr.  Cas.  115,  131.  In  weighing  the  testimony  of  watnesses 
naturally  biassed,  the  rule  is  to  give  credit  to  their  statements  of  facts,  and  to  view 
their  deductions  from  facts  with  suspicion.     Dillon  v.  Dillon,  3  Curt.  96. 

5  Dig.  lib.  22,  tit.  5,  1.  6  ;  Poth.  Obi.  [793].  In  Lower  Canada,  the  incompetency 
of  the  relations  and  connections  of  the  parties,  in  civil  cases,  beyond  the  degree  of  cou- 
sins-german,  is  removed  by  Stat.  41  Geo.  III.  c.  8.     See  Rev.  Code,  1845,  p.  144. 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  629 

prudence  the  authorit}-  of  the  Roman  law  is  recognized.  Neither 
does  the  common  law  regard  as  of  binding  force  the  rule  that  ex- 
cludes an  advocate  from  testifying  in  the  cause  for  his  client,  — 
"Mandatis  cavetur,  ut  Praesides  attendant,  ne  patroni,  in  causa 
cui  patrocinium  praestiterunt,  testimonium  dicant.  "^  But  on 
grounds  of  public  policy,  and  for  the  purer  administration  of  jus- 
tice, the  relation  of  lawyer  and  client  is  so  far  regarded  by  the 
rules  of  practice  in  some  courts,  as  that  the  lawyer  is  not  per- 
mitted to  be  both  advocate  and  witness  for  his  client  in  the  same 
cause. ' 

§  387.  Nature  of  disqualifying  interest.  The  interest^  too,  must 
be  real,  and  not  merely  apprehended,  by  the  party.  For  it  would 
be  exceedingly  dangerous  to  violate  a  general  rule,  because  in  a 
particular  case  an  individual  does  not  understand  the  nature  or 
extent  of  his  rights  and  liabilities.  If  he  believes  and  states  that 
he  has  no  interest,  the  very  statement  of  the  objection  to  his 
competency  may  inform  him  that  he  has ;  and,  on  the  other  hand, 
if  he  erroneously  thinks  and  declares  that  he  is  interested,  he 
may  learn,  by  the  decision  of  the  court,  that  he  is  not.  Indeed, 
there  would  be  danger  in  resting  the  rule  on  the  judgment  of  a 
"witness,  and  not  on  the  fact  itself;  for  the  apprehended  existence 
of  the  interest  might  lead  his  judgment  to  a  wrong  conclusion. 
And,  moreover,  the  inquiry  which  would  be  necessary  into  the 
grounds  and  degree  of  the  witness's  belief  would  always  be  com- 
plicated, vague,  and  indefinite,  and  productive  of  much  incon- 
venience. For  these  reasons,  the  more  simple  and  practicable 
rule  has  been  adopted  of  determining  the  admissibility  of  the 
witness  by  the  actual  existence,  or  not,  of  any  disqualifying 
interest  in  the  matter.^ 

§  388.  Honorary  obligation.  If  the  witness  believes  himself  to 
be  under  an  honorary  obligation,  respecting  the  matter  in  contro- 

6  Dig.  Lib.  22,  tit.  5,  1.  25  ;  Poth.  Obi.  [793]. 

T  Stones  V.  Byron,  4  Dowl.  &  L.  393  ;  Dunn  v.  Packwood,  11  Jur.  242  ;  Reg.  Gen. 
Sup.  Court,  N.  H.  Reg.  23,  6  N.  H.  580;  Mishler  v.  Raumgardner,  1  Anier.  Law  Jour. 
N.  s,  304.  But  see  contra.  Little  v.  Keon,  1  N.  Y.  Code  Rep.  4 ;  Sandf.  607  ;  Potter 
V.  "Ware,  1  Cusli.  519,  524,  and  cases  cited  by  Metcalf,  J. 

1  1  Phil.  Evid.  127,  128  ;  1  Stark.  Evid.  102  ;  Gresley  on  Evid.  p.  253  ;  Tait  on 
Evid.  p.  351.  In  America  and  in  England,  there  are  some  early  but  very  respectable 
authorities  to  the  point,  that  a  witness  believing  himself  interested  is  to  be  rejected  as 
incompetent.  See  Fotheringham  v.  Greenwood,  1  Stra.  129  ;  Trelawney  v.  Thomas,  1 
H.  Bl.  307,  per  Ld.  Loughborough,  C.  J.,  and  Gould,  J.;  L'Amitie,  6  Rob.  Ailni.  269, 
n.  (a)  ;  Plumb  v.  Whiting,  4  Mass.  518  ;  Richardson  v.  Hunt,  2  Muni.  118:  Freeman 
V.  Luckett,  2  J.  J.  Marsh,  390.  But  the  weight  of  modern  authority  is  clearly  the 
other  way.  See  Commercial  Bank  of  Albany  v".  Hughes,  17  Wend.  94,  101,  102;  Stall 
V.  Catskill  Bank,  18  Wend.  466,  475,  476  ;  Smith  v.  Downs,  6  Conn.  371  ;  Long  v. 
Bailie,  4  S.  &  R.  222  ;  Dellone  v.  Rehmer,  4  Watts,  9  ;  Stimmel  v.  Undt-rwood,  3  G, 
&  J.  282  ;  Havis  v.  Barklej',  1  Harper's  Law  Rep.  63.  And  see  infra,  §  423,  n. 
VOL.  I.  —  34 


630  LAW    OF    EVIDENCE.  [PART   III. 

vcrsv,  in  favor  of  the  party  calling  him,  he  is  nevertheless  a  com- 
petent witness,  for  the  reasons  already  given ;  and  his  credibility 
is  left  with  the  jury.^ 

§  889.  Interest  must  be  in  the  event  of  the  suit.  The  disquali- 
fying interest  of  the  witness  must  be  in  the  event  of  the  cause 
itself,  and  not  in  the  question  to  be  decided.  His  liability  to  a 
like  action,  or  his  standing  in  the  same  predicament  with  the 
party,  if  the  verdict  cannot  be  given  in  evidence  for  or  against 
him,  is  an  interest  in  the  question  only,  and  does  not  exclude 
him.^  Thus,  one  underwriter  may  be  a  witness  for  another  un- 
derwriter upon  the  same  policy ;  ^  or,  one  seaman  for  another, 
whose  claim  for  wages  is  resisted,  on  grounds  equally  affecting 
all  the  crew;^  or,  one  freeholder  for  another,  claiming  land  under 
the  same  title,  or  by  the  same  lines  and  corners ;  *  or,  one  devisee 
for  another,  claiming  under  the  same  will ;  ^  or,  one  trespasser 
for  his  co-trespasser ;  ^  or,  a  creditor  for  his  debtor ;  ^  or  a  tenant 
by  the  courtesy ;  or  tenant  in  dower,  for  the  heir  at  law,  in  a  suit 
concerning  the  title.''  And  the  purchaser  of  a  license  to  use  a 
patent  may  be  a  witness  for  the  patentee,  in  an  action  for  infring- 
ing the  patent.^ 

§  390.  Test  of  interest.  The  true  test  of  the  interest  of  a  wit- 
ness is,  that  he  will  either  gain  or  lose  by  the  direct  legal  opera- 
tion and  effect  of  the  judgment,  or  that  the  record  will  be  legal 
evidence  for  or  against  him,  in  some  other  action.  ^  It  must  be 
a  present,  certain,  and  vested  interest,  and  not  an  interest  uncer- 
tain, remote,  or  contingent.  Thus  the  heir  apparent  to  an  estate 
is  a  competent  witness  in  support  of  the  claim  of  his  ancestor ; 
though  one,  who  has  a  vested  interest  in  remainder,  is  not  com- 

2  Pederson  v.  Stoffles,  1  Campb.  144  ;  Solarte  v.  Melville,  1  Man.  &  Ryl.  198  ;  Gil- 
pin V.  Vincent,  9  Johns.  219  ;  Moore  v.  Hitchcock,  4  Wend.  292  ;  Union  Bank  v. 
Knapp,  3  Pick.  96,  108  ;  Smith  v.  Downs,  6  Conn.  365  ;  Stimmel  v.  Underwood,  3 
Gill  &  Johns.  282  ;  Howe  v.  Howe,  10  N.  H.  88. 

1  Evans  v.  Eaton,  7  "Wheat.  356,  424,  per  Story,  J. ;  Van  Nnys  v.  Terhune,  3  Johns. 
Cas.  82  ;  Stewart  v.  Kip,  5  Johns.  256  ;  Evans  v.  Hettich,  7  Wheat.  453  ;  Clapp  v. 
Mandeville,  5  How.  (Miss.)  197. 

2  Bent  V.  Baker,  3  T.  B.  27. 

'^  Spurr  V.  Pearson,  1  Mason,  104  ;  Hoyt  v.  Wildfire,  3  Johns.  518. 

*  Richardson  v.  Carey,  2  Rand.  87  ;  Owings  v.  Speed,  5  Wheat.  423. 

^  Jackson  v.  Xelson,  6  Cowen.  248. 

«  Per  Ashurst,  J.,  in  Walton  v.  Shelley,  1  T.  R.  301.  See  also  Blackett  v.  Weir,  5 
B.  &  C.  387,  per  Abbott,  C.  J.  ;  Duncan  v.  Meikleham,  3  C.  &  P.  172  ;  Curtis  v. 
Graham,  12  Martin,  289. 

">  Paul  V.  Brown,  6  Esp.  34  ;  Nowell  v.  Davies,  5  B.  &  Ad.  368. 

8  Jackson  v.  Brooks,  8  Wend.  426  ;  Doe  v.  Maisey,  1  B.  &  Ad.  439. 

9  De  Rosne  v.  Fairlie,  1  M.  &  Rob.  457. 

1  1  Gilb.  Evid.  by  Lotft,  p.  225  ;  Bull.,  N.  P.  284  ;  Bent  v.  Baker,  3  T.  R.  27; 
6  Bing.  394,  per  Tindal,  C.  J.  ;  siipra,  §  386  ;  Rex  v.  Boston,  4  East,  581,  per  Ld. 
Ellenborough. 


CHAP.    II.]  COMPRTENCY    OF   WITNESSES.  531 

petent.  *  And  if  the  interest  is  of  a  douhtful  nature,  the  objec- 
tion goes  to  the  credit  of  the  witness,  and  not  to  his  competency. 
For,  being  always  presumed  to  be  competent,  the  burden  of  proof 
is  on  the  objecting  party,  to  sustain  his  exception  to  the  compe- 
tency;  and  if  he  fails  satisfactorily  to  establish  it,  the  witness  is 
to  be  sworn. ^ 

§  391.  Degree  of  interest  immaterial.  The  magnitude  or  degree 
of  the  interest  is  not  regarded  in  estimating  its  effect  on  the  mind 
of  the  witness;  for  it  is  impossible  to  measure  the  influence 
which  any  given  interest  may  exert.  It  is  enough,  that  the  in- 
terest which  he  has  in  the  subject  is  direct,  certain,  and  vested, 
however  small  may  be  its  amount ;i  for,  interest  being  admitted 
as  a  disqualifying  circumstance  in  any  case,  it  must  of  necessity 
be  so  in  every  case,  whatever  be  the  character,  rank,  or  fortune, 
of  the  party  interested.  Nor  is  it  necessary  that  the  witness 
should  be  interested  in  that  which  is  the  subject  of  the  suit;  for, 
if  he  is  liable  for  the  costs,  as  in  the  case  of  a,  prochein  amy,  or  a 
guardian,  or  the  like,  we  have  already  seen,^  that  he  is  incom- 
petent. And  though,  where  the  witness  is  equally  interested  on 
both  sides,  he  is  not  incompetent ;  yet  if  there  is  a  certain  excess 
of  interest  on  one  side,  it  seems  that  he  will  be  incompetent  to 
testify  on  that  side ;  for  he  is  interested,  to  the  amount  of  the 
excess,  in  procuring  a  verdict  for  the  party,  in  whose  favor  his 
interest  preponderates.  ^ 

§  392.  Nature  of  interest  in  the  event  of  the  suit.  The  nature  of 
the  direct  interest  in  the  event  of  the  suit  which  disqualifies  th& 

*  Smith  I'.  Blackham,  1  Salk.  283  ;  Doe  v.  Tyler,  6  Bing.  390.  But  in  an  action 
for  waste,  brought  bj'  a  landlord,  who  is  tenant  for  life,  the  remainder-man  is  a  compe- 
tent witness  for  the  plaintiff;  for  the  damages  would  not  belong  to  the  witness,  but  to 
the  plaintiff's  executor.     Leacli  v.  Thomas,  7  C.  &  P.  327. 

6  Bent  V.  Baker,  3  T.  R.  27,  32  ;  Jackson  v.  Benson,  2  Y.  &  J.  45  ;  Rex  v.  Cole, 
1  Esp.  169;  Duel  v.  Fisher,  4  Denio,  515;  Comstock  i-.  Rayford,  12  S.  &  M.  369;^ 
Storv  V.  Saunders,  8  Humph.  663. 

1" Burton  v.  Hinde,  5  T.  R.  174  ;  Butler  v.  Warren,  11  Johns.  57  f  Doe  v.  Tooth,  3 
Y.  &  J.  19. 

2  Supra,  §  347.     See  also   infra,  §§  401,  402. 

'  Larbalestier  v.  Clark,  1  B.  &  Ad.  899.  Where  this  preponderance  arose  from  a 
liability  to  costs  only,  the  rule  formerly  was  to  admit  the  witness  ;  because  of  the 
extreme  difficulty  which  frequently  arose,  of  determining  the  question  of  his  liability  to 
pay  the  costs.  See  Ilderton  v.  Atkinson,  7  T.  R.  480  ;  Birt  v.  Karshaw,  2  East,  458. 
But  these  cases  were  broken  in  upon,  by  Jones  v.  Brooke,  4  Taunt.  464  ;  and  the  wit- 
ness is  now  held  incompetent,  wherever  there  is  a  preponderancy  of  interest  on  the  side 
of  the  party  adducing  liini,  though  it  is  created  only  by  the  liability  to  costs.  Town- 
send  V.  Downing,  14  East,  56.5;  Hubbly  v.  Brown,  16  Johns.  70,  Scott  v.  McLellan,  2 
Greenl.  199  ;  Bottomley  v.  Wilson,  3  Stark.  148  ;  Harman  v.  Lasbrey,  1  Holt's  Ca.s. 
390  ;  Edmonds  v.  Lowe,  8  B.  &  C.  407.  And  see  Mr.  Evans's  observations,  in  2  Poth. 
Obi.  p.  269,  App.  No.  16.  The  existence  of  such  a  rule,  however,  was  regretted  by 
Mr.  Justice  Littledale,  in  1  B.  &  Ad.  903  ;  and  by  some  it  is  still  thought  the  earlier 
cases,  above  cited,  are  supported  by  the  better  reason.  See  further  Barretto  v.  Snow- 
den,  5  Wend.  181 ;  Hall  v.  Hale,  8  Conn.  336. 


632  LAW    OF   EVIDENCE.  [PART    III. 

witncr:!S  may  be  illustrated  by  reference  to  some  adjudged  cases. 
Thus,  persons  having  become  bail  for  the  defendant  have  been 
held  incompetent  to  testify  as  witnesses  on  his  side ;  for  they  are 
immediately  made  liable,  or  discharged,  by  the  judgment  against 
or  in  favor  of  the  principal.  And  if  the  bail  have  given  security 
for  the  appearance  of  the  defendant,  by  depositing  a  sum  of  money 
with  the  officer,  the  effect  is  the  same.^  If  an  underwriter,  who 
has  paid  his  proportion,  is  to  be  repaid  in  the  event  of  the  plaintiff's 
success  in  a  suit  against  another  underwriter  upon  the  same 
policy,  he  cannot  be  a  witness  for  the  plaintiff.  ^  A  creditor, 
whether  of  a  bankrupt,  or  of  an  estate,  or  of  any  other  person,  is 
not  admissible  as  a  witness  to  increase  or  preserve  the  fund,  out 
of  which  he  is  entitled  to  be  paid,  or  otherwise  benefited.^  Nor 
is  a  bankrupt  competent,  in  an  action  by  his  assignees  to  prove 
any  fact  tending  to  increase  the  fund ;  though  both  he  and  his 
creditors  may  be  witnesses  to  diminish  it.*     The  same  is  true  of 

1  Lacon  t.  Higgins,  3  Stark.  182  ;  1  T.  E.  164,  per  BiiUer,  J.  But  in  such  cases, 
if  the  defendant  wishes  to  examiue  his  bail,  the  court  will  either  allow  his  name  to  be 
stricken  out,  on  the  defendant's  adding  and  justifying  another  person  as  his  bail ;  or, 
even  at  the  trial,  will  permit  it  to  be  stricken  out  of  the  bail-piece,  upon  the  defen- 
dant's depositing  a  sufficient  sum  with  the  proper  officer.  1  Tidd's  Pr.  259  ;  Baillie  v. 
Hole,  1  I\lood.  &  M.  289  ;  s.  c.  3  C.  P.  560  ;  Whartley  v.  Fearnley,  2  Chitty,  103. 
And  in  like  manner  the  surety  in  a  replevin  bond  may  be  rendered  a  competent  witness 
for  the  plaintitf.  Bailey  v.  Bailey,  1  Bing.  92.  And  so  of  the  indorser  of  a  writ,  who 
thereby  becomes  surety  for  payment  of  the  costs.  Robert  v.  Adams,  9  Greenl.  9.  So 
in  Indiana,  of  a  prochein  amy.  Harvey  v.  Coffin,  5  Blackf.  566.  See  further,  Salmon  v. 
Ranee,  3  S.  &  R.  311,  314  ;  Hall  v.  Baylies,  15  Pick.  51,  53  :  Beckley  i-.  Freeman,  Id. 
468 ;  Allen  v.  Hawks,  13  Pick.  79;  McCulloch  v.  Tyson,  2  Hawks,  336  ;  infra,  §  430  ; 
Comstock  V.  Paie,  3  Rob.  (La.)  440. 
_     2  Forrester  v.  Pigou,  3  Canipb.  380  ;  s.  c.  1  M.  &  S.  9. 

3  Craig  V.  Cundell,  1  Campb.  381  ;  Williams  v.  Stephens,  2  Campb.  301  ;  Shuttle- 
worth  V.  Bravo,  1  Stra.  507  ;  Powel  v.  Gordon,  2  Esp.  735  ;  Stewart  v.  Kip  ,  5  Johns. 
256  ;  Holden  v.  Hearn,  1  Beav.  445.  But  to  disqualify  the  witness,  he  must  be  legally 
entitled  to  payment  out  of  the  fund.  Phcenix  v.  Ingraham,  5  Johns.  427  ;  Peyton  v. 
Hallett,  1  Caines,  363,  379  ;  Howard  v.  Chadbourne,  3  Greenl.  461  ;  Marland  v.  Jeffer- 
son, 2  Pick.  240 ;  Wood  v.  Braynard,  9  Pick.  322.  A  mere  expectation  of  payment, 
however  strong,  if  not  amounting  to  a  legal  right,  has  been  deemed  insufficient  to  render 
him  incompetent.     Seaver  v.  Bradley,  6  Greenl.  60. 

*  Butler  V.  Cooke,  Cowp.  70  ;  f^wens  v.  Gold,  Bull.  N.  P.  43  ;  Green  v.  Jones,  2 
Camp.  411  ;  Loyd  v.  Stretton,  1  Stark.  40  ;  Rudge  v.  Ferguson,  1  C.  &  P.  253  ;  Mas- 
ters V.  Drayton,  2  T.  R.  496  ;  Clay  v.  Kirkland,  4  Martin,  405.  In  order  to  render 
the  bankrupt  competent,  in  such  cases,  he  must  release  his  allowance  and  surplus  ;  and 
he  must  also  have  obtained  his  certificate,  without  which  he  is  in  no  case  a  competent 
witness  for  his  assignees.  Masters  v.  Drayton,  2  T.  R.  496  ;  Goodhay  r.  Hindry,  1 
Mood.  &  M.  319.  And  though  his  certificate  has  been  allowed  by  the  competent  number 
of  creditors,  and  no  opposition  to  its  final  allowance  is  anticipated,  yet  until  its  allow- 
ance by  the  Lord  C'hancellor,  he  is  still  incompetent ;  nor  will  the  trial  for  that  pur- 
pose be  postponed.  Tennant  v.  Strachan,  1  Mood.  &  M.  377.  So,  if  his  certilicate  has 
been  finally  obtained,  yet,  if  his  future  effects  remain  liable  (as  in  the  case  of  a  second 
bankruptcy,  where  he  has  not  yet  paid  the  amount  necessary  to  exempt  his  future 
acquisitions),  he  is  still  incompetent  as  a  witness  for  the  assignees,  being  interested  to 
increase  th ;  fund.  Kennett  v.  Greenwollers,  Peake's  Cas.  3.  The  same  rules  apply  to 
the  case  of  insolvent  debtors.  Delafield  v.  Freeman,  6  Bing.  294  ;  s.  c.  4  C  &  P.  67  ; 
Rudj^e  V.   Ferguson,  1  C.  &  P.  253.     But  upon  grounds  of  public  policy  aim  conveui- 


CHAP.    II.]  COMPETENCY    OP    WITNESSES.  633 

a  legatee,  without  a  release,  and  also  of  an  heir  or  distributee,  in 
any  action  affecting  the  estate.^  So,  where  the  immediate  effect 
of  the  judgment  for  the  plaintiff  is  to  confirm  the  witness  in  the 
enjoyment  of  an  interest  in  possession,"  or,  to  place  him  in  the 
immediate  possession  of  a  right,'  he  is  not  a  competent  witness 
for  the  plaintiff.  Neither  can  a  lessor  be  admitted  as  a  witness, 
to  prove  a  right  of  possession  in  his  lessee  to  a  portion  of  land 
claimed  as  part  of  the  premises  leased.^ 

§  393.  Same  subject.  So  where  the  event  of  the  suit,  if  it  is 
adverse  to  the  party  adducing  the  witness,  will  render  the  latter 
liable  either  to  a  third  person,  or  to  the  party  himself,  whether 
the  liability  arise  from  an  express  or  implied  legal  obligation  to 
indemnify,  or  from  an  express  or  implied  contract  to  pay  money 
upon  that  contingency,  the  witness  is  in  like  manner  incompe- 
tent. The  cases  under  this  branch  of  the  rule  are  apparently 
somewhat  conflicting;  and  therefore  it  may  deserve  a  more  dis- 
tinct consideration.  And  here  it  will  be  convenient  to  distin- 
guish between  those  cases  where  the  judgment  will  be  evidence 
of  the  material  facts  involved  in  the  issue,  and  those  where  it  will 
be  evidence  only  of  the  amount  of  damages  recovered,  which  the 
defendant  may  be  compelled  to  pay.  In  the  former  class,  which 
Avill  hereafter  be  considered,  the  interest  of  the  party  is  in  the 
record,  to  establish  his  entire  claim ;  in  the  latter,  which  belongs 
to  the  present  head,  it  is  only  to  prove  the  amount  of  the  injury 
he  has  suffered. 

§  394.  Same  subject.  Thus,  in  an  action  against  the  principal 
for  damage  occasioned  by  the  neglect  or  misconduct  of  his  agent 
or  servant,  the  latter  is  not  a  competent  witness  for  the  defendant 
without  a  release ;  for  he  is,  in  general,  liable  over  to  his  master 
or  employer,   in  a  subsequent  action,   to  refund  the  amount  of 

ence,  a  bankrupt  is  held  inadmissible  to  prove  any  fact  which  is  material  to  support  or 
to  defeat  the  fiat  issued  against  him.  Nor  is  a  creditor  competent  to  sufiport  the  fiat, 
whether  he  has  or  has  not  availed  himself  of  the  right  of  proving  under  the  bankruptcy. 
See  1  Phil.  Ev.  94-96,  and  cases  there  cited.  ^ 

6  Hellianl  v.  Jennings,  1  Ld.  Raym.  505  ;  1  Burr.  424  ;  2  Stark.  546  ;  Green  v. 
Salmon,  3  N.  &  P.  388  ,  Bloor  v.  Davies,  7  M.  &  \V.  235.  And  if  he  is  a  residuary 
legatee,  his  own  release  of  the  debt  will  not  render  him  competent  for  the  executor,  in 
an  action  against  the  debtor  ;  for  he  is  still  interested  in  supporting  the  action,  in  order 
to  relieve  the  estate  from  the  charge  of  the  costs.  Baker  v.  Tyrwhitt,  4  Canipb.  27  ;  6 
Bing.  294,  per  Tindal,  C.  J.  ;  Matthews  v.  Smith,  2  Y.  &  J."426  ;  Alliiigton  v.  Bear- 
croft,  Peake's  Add.  Cas.  212;  West  v.  Randall,  2  Mason,  181  ;  Randall  v.  Phillips,  3 
Mason,  378  ;  Campbell  v.  Tousey,  7  Cowen,  64  ;  Carlisle  v.  Barley,  3  Greenl.  250. 
Nor  is  a  legatee  comi)etent  to  testify  against  the  validity  of  the  will,  if  it  is,  on  the 
whole,  for  his  interest  to  defeat  it.     Robert  v.  Trawick,  13  Ala.  68. 

s  Doe  V.  Williams,  Cowp.  621. 

'  Rex  V.  Williams,  9  B.  &  C.  549. 

8  Smith  V.  Chambers,  4  Esp.  164. 


534  LAW    OF    EVIDENCE.  [PART   III. 

damages  which  tlio  latter  may  have  paid.  And  though  the  record 
will  not  be  evidence  against  the  agent,  to  establish  the  fact  of 
misconduct,  unless  he  has  been  duly  and  seasonably  informed  of 
the  pendency  of  the  suit,  and  required  to  defend  it,  in  which  case 
it  will  be  received  as  evidence  of  all  the  facts  found ;  ^  yet  it  will 
always  be  admissible  to  show  the  amount  of  damages  recovered 
against  his  employer. ^  The  principle  of  this  rule  applies  to  the 
relation  of  master  and  servant,  or  employer  and  agent,  wherever 
that  relation  in  its  broadest  sense  may  be  found  to  exist ;  as,  for 
example,  to  the  case  of  a  pilot,  in  an  action  against  the  captain 
and  owner  of  a  vessel  for  mismanagement,  while  the  pilot  was  in 
charge; 3  or,  of  the  guard  of  a  coach,  implicated  in  the  like  mis- 
management, in  an  action  against  the  proprietor;*  or,  of  a  broker, 
in  an  action  against  the  principal  for  misconduct  in  the  purchase 
of  goods,  which  he  had  done  through  the  broker ;  ^  or,  of  a  sheriff's 
officer,  who  had  given  security  for  the  due  execution  of  his  duty, 
in  an  action  against  the  sheriff  for  misconduct  in  the  service  of 
process  by  the  same  officer ;  ^  or,  of  a  shop-master,  in  an  action  by 
his  owner  against  underwriters,  where  the  question  was,  whether 
there  had  been  a  deviation ;  '^  neither  of  whom  is  competent  to  give 
testimony,  the  direct  legal  effect  of  which  will  be,  to  place  him- 
self in  a  situation  of  entire  security  against  a  subsequent  action. 
But  the  liability  must  be  direct  and  immediate  to  the  party ;  for 
if  the  witness  is  liable  to  a  third  person,  who  is  liable  to  the 
party,  such  circuity  of  interest  is  no  legal  ground  of  exclusion.^ 
The  liability  also  must  be  legal ;  for  if  the  contract  be  against 
law,  as  for  example,  if  it  be  a  promise  to  indemnify  an  officer  for 
a  violation  of  his  duty  in  the  service  of  process,  it  is  void;  and 
the  promisor  is  a  competent  witness,  the  objection  going  only  to 
his  credibility.^ 

1  Hamilton  v.  Cutts,  4  Mass.  349  ;  Tyler  v.  Ulmer,  12  Mass.  163.  See  infra, 
§§  523,  527,  538,  539. 

2  rxieen  v.  New  River  Co.,  4  T.  R.  589. 

3  Hawkins  v.  Finlayson,  3  C.  &  P.  305.  But  the  pilot  has  been  held  admissible  in 
an  action  by  the  owners  against  the  underwriters,  for  the  loss  of  the  vessel  while  in  his 
charge,  on  the  ground  that  his  interest  was  balanced.  Vairin  v.  Canal  Ins.  Co.,  10 
Ohio,  223. 

*  Whitamore  v.  Waterhouse,  4  C.  &  P.  383. 

s  Field  V.  Mitchell,  6  Esp.  7l  ;  Gevers  v.  Mamwaring,  1  Holt's  Gas.  139  ;  Boorman 
V.  Browne,  1  P.  &  D.  364  ;  Morish  v.  Foote,  8  Taunt.  454. 

*^  Powel  V.  Hord,  1  Stra.  650  ;  s.  c.  2  Ld.  Raym.  1411  ;  Whitehouse  v.  Atkinson,  3 
C.  &  P.  344  ;  Groom  v.  Bradley,  8  C.  &.  P.  500.  So,  the  creditor  is  incompetent  to 
testify  for  the  officer,  where  he  is  liable  over  to  the  latter,  if  the  plaintiff  succeeds, 
Keightley  V.  Birch,  3  Campb.  521.  See  also  Jewett  v.  Adams,  8  Greenl.  30;  Turner 
V.  Austin,  16  Mass.  181  ;  Rice  v.  Wilkins,  8  Shepl.  558. 

^  De  Svmonds  v.  De  la  Cour,  2  N.  R.  374. 

*  Clark  V.  Lucas,  Ry.  &  M.  32. 

»  Hodsdon  v.  Wilkins,  7  Greenl.  113. 


CHAP.    II.]  COMPETENCY    OP    WITNESSES.  635 

§  395.  Same  subject.  The  same  principle  applies  to  other  cases, 
where  the  direct  eii'ect  of  the  judgment  will  be  to  create  a7iy  other 
legal  claim  against  the  witness.  Thus,  if  he  is  to  repay  a  sum  of 
money  to  the  plaintiff,  if  he  fails  in  the  suit  he  is  incompetent  to 
be  sworn  for  the  plaintiff. ^  So,  in  an  action  on  a  policy  of  in- 
surance, where  there  has  been  a  consolidation  rule,  an  under- 
writer, who  is  a  party  to  such  rule,  is  not  a  competent  witness  for 
others.^  The  case  is  the  same,  wherever  a  rule  is  entered  into, 
that  one  action  shall  abide  the  event  6i  another ;  for  in  both  these 
cases  all  the  parties  have  a  direct  interest  in  the  result.  And 
it  makes  no  differeiice  in  any  of  these  cases,  whether  the  witness 
is  called  by  the  plaintiff  or  by  the  defendant ;  for,  in  cither  case, 
the  test  of  interest  is  the  same ;  the  question  being,  whether  a 
judgment,  in  favor  of  the  party  calling  the  witness,  will  procure 
a  direct  benefit  to  the  witness.  Thus,  in  assumpsit,  if  the  non- 
joinder of  a  co-contractor  is  pleaded  in  abatement,  such  person  is 
not  a  competent  witness  for  the  defendant  to  support  the  plea,  un- 
less he  is  released ;  for  though,  if  the  defence  succeed,  the  wit- 
ness will  still  be  liable  to  another  action,  yet  he  has  a  direct 
interest  to  defeat  the  present  action,  both  to  avoid  the  payment  of 
costs,  and  also  to  recover  the  costs  of  the  defence.^  The  case  is 
the  same,  where,  in  a  defence  upon  the  merits,  a  witness  is  called 
by  the  defendant,  who  is  confessedly,  or  by  his  own  testimony,  a 
co-contractor,  or  partner  with  him  in  the  subject  of  the  action.* 
So,  in  a  suit  against  one  on  a  joint  obligation,  a  co-obligor,  not 
sued,  is  not  a  competent  witness  for  the  plaintiff,  to  prove  the 
execution  of  the  instrument  by  the  defendant;  for  he  is  interested 
to  relieve  himself  of  part  of  the  debt,  by  charging  it  on  the  defen- 
dant.^ And  upon  a  similar  principle,  where  an  action  was  brought 
upon  a  policy  of  insurance,  averred  in  the  declaration  to  have  been 
effected  by  the  plaintiffs,  as  agents,  for  the  use  and  benefit  and 
on  the  account  of  a  third  person,  it  was  held  that  this  third  per- 

1  Fotlieringham  i-.  Greenwood,  1  Stra.  129  ;  Rogers  v.  Turner,  5  West.  Law  Journ. 
406- 

'^  The  same  principle  also  applies  where  the  underwriter,  offered  as  a  witness  for  the 
defendant,  has  paid  the  loss,  upon  an  agreement  with  the  assured  that  the  money 
should  be  repaid,  if  he  failed  to  recover  against  the  other  underwriters.  Forrester  v. 
Pigou,  1  M.  &  S.  9  ;  s.  c.  3  Campb.  380. 

8  Young  V.  Bairner,  1  Esp.  103  ;  Lefferts  v.  DeMott,  21  Wend.  136. 

*  Birtv.  Hood,  1  Esp.  20  ;  Goodacrei;.  Breame,  Peake's  Cas.  174  ;  Cheynev.  Koops,  4 
Esp.  112  ;  Evans  v.  Yeatherd,  2  Bing.  133  ;  Hall  v.  Cecil,  6  Bing.  181  ;  Russell  v. 
Blake,  2  M.  &  G.  374,  381,  382  ;  Vanzant  v.  Kay,  2  Humph.  10(5,  112.  But  this  point 
has  in  some  cases  been  otherwise  decided.  See  Cossham  v.  Goldney,  2  Stark.  414  ; 
Blackett  v.  Weir,  5  B.  &  C.  385.     See  also  Poole  t;.  Palmer,  9  M.  &  W.  71. 

5  Marshall  v.  Thrailkill,  12  Ohio,  275;  Ripley  v.  Thompson,  12  Moore,  55  ;  Brown 
V.  Brown,  4  Taunt.  752  ;  AIar(|uand  v.  Webb,  16  Johns.  89  ;  Purviance  v.  Dryden,  3  S. 
&  R.  402,  407.     And  see  Latham  v.  Kenniston,  13  N.  H.  203. 


686  LAW    OP    EVIDENCE.  [PART    III. 

son  was  not  a  competent  witness  for  the  plaintiffs ;  and  that  his 
release  to  the  plaintiffs,  prior  to  the  action,  of  all  actions,  claims, 
&c.,  which  he  might  have  against  them  by  reason  of  the  policy, 
or  for  any  moneys  to  be  recovered  of  the  underwriters,  did  not 
render  him  competent;  neither  could  his  assignment  to  them, 
after  action  brought,  of  all  his  interest  in  the  policy,  have  that 
effect;  for  the  action  being  presumed  to  have  been  brought  by  his 
authority,  he  was  still  liable  to  the  attorney  for  the  costs. ^  So, 
in  an  action  on  a  joint  and'  several  bond  against  the  surety,  he 
cannot  call  the  principal  obligor  to  prove  the  payment  of  money 
by  the  latter  in  satisfaction  of  the  debt;  for  the  witness  has  an 
interest  in  favor  of  his  surety  to  the  extent  of  the  costs.''  So, 
also,  where  a  legatee  sued  the  executor,  for  the  recovery  of  a 
specific  legacy,  namely,  a  bond;  it  wa,s  held,  that  the  obligor, 
having  a  direct  interest  in  preventing  its  being  enforced,  was  not 
a  competent  witness  to  prove  that  the  circumstances,  under  which 
the  bond  was  given,  were  such  as  to  show  that  it  was  irrecoverable.*^ 
§  396.  Same  subject.  It  may  seem,  at  the  first  view,  that 
where  the  plaintiff  calls  his  own  servant  or  agent  to  prove  an  in- 
jury to  his  property,  while  in  the  care  and  custody  of  the  servant, 
there  could  be  no  objection  to  the  competency  of  the  witness  to 
prove  misconduct  in  the  defendant ;  because,  whatever  might  be 
the  result  of  the  action,  the  record  would  be  no  evidence  against 
him  in  a  subsequent  action  by  the  plaintiff.  But  still  the  wit- 
ness, in  such  case,  is  held  inadmissible ;  upon  the  general  prin- 
ciple already  mentioned,^  in  cases  where  the  master  or  principal 
is  defendant,  namely,  that  a  verdict  for  the  master  would  place 
the  servant  or  agent  in  a  state  of  security  against  any  action, 
which,  otherwise,  the  master  might  bring  against  him;  to  pre- 
vent which  he  is  directly  interested  to  fix  the  liability  on  the 
defendant.  Thus,  in  an  action  for  an  injury  to  the  plaintiff's 
cart,  or  coach,  or  horses,  by  negligently  driving  against  them, 
the  plaintiff's  own  driver  or  coachman  is  not  a  competent  witness 
for  him  without  a  release.^     So,  in  an  action  by  the  shipper  of 

«  Bell  V.  Smith,  5  B.  &  C.  188. 

^  Townsend  v.  Downing,  14  East,  565,  567,  per  Ld.  Ellenborough.  In  an  action 
against  the  sheriff,  for  a  negligent  escape,  the  debtor  is  not  a  competent  witness  for  the 
defendant,  he  being  liable  over  to  the  defendant  for  the  damages  and  costs.  Griffin  v. 
Brown,  2  Pick.  304. 

"  Davies  v.  Morgan,  1  Beav.  405. 

^  Supra,  §  393.  This  principle  is  applied  to  all  cases,  where  the  testimony  of  the 
witness,  adduced  by  the  plaintiff,  would  discharge  him  from  the  plaintifTs  demand  by 
establishing  it  against  the  defendant.  Thus,  in  an  action  by  A  against  B  for  the  board 
of  0,  the  latter  is  not  a  competent  witness  for  the  ])laintiff  to  prove  the  claim.  Emerlon 
V.  Andrews,  4  Mass.  653  ;  Hodson  r.  Marshall,  7  C  &  P.  16  [infra,  §  416]. 

*  Miller  v.   Falconer,  1  Campb.   251  ;  Morish  v.  Foote,  8  Taunt.  454;  Kerrison  v. 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  637 

goods,  on  a  policy  of  insurance,  the  owner  of  the  ship  is  not  a 
competent  witness  for  the  plaintiff  to  prove  the  seaworthiness  of 
the  ship,  he  having  a  direct  interest  to  exonerate  himself  from 
liability  to  an  action  for  the  want  of  seaworthiness,  if  the  plain- 
tiff should  fail  to  recover  of  the  underwriter.^  The  only  differ- 
ence between  the  case  where  the  master  is  plaintiff  and  where  he 
is  defendant,  is  this,  that  in  the  latter  case  he  might  claim  of  the 
servant  both  the  damages  and  costs  which  he  had  Ijeen  compelled 
to  pay;  but  in  the  former,  he  could  claim  only  such  damages  as 
directly  resulted  from  the  servant's  misconduct,  of  which  the 
costs  of  an  unfounded  suit  of  his  own  would  not  constitute  a 
part.'' 

§  397.  Interest  from  liability  over.  Where  the  interest  of  the 
witness  arises  from  liability  over,  it  is  sufficient  that  he  is  hound 
to  iiidemyiifu  the  party  calling  him  against  the  consequence  of 
some  fact  essential  to  the  judgment.  It  is  not  necessary  that 
there  should  be  an  engagement  to  indemnify  him  generally  against 
the  judgment  itself,  though  this  is  substantially  involved  in  the 
other;  for  a  covenant  of  indemnity  against  a  particular  fact, 
essential  to  the  judgment,  is  in  effect  a  covenant  of  indemnity 
against  such  a  judgment.  Thus,  the  warrantor  of  title  to  the 
property  which  is  in  controversy  is  generally  incompetent  as  a 
witness  for  his  vendee,  in  an  action  concerning  the  title.  And 
it  makes  no  difference  in  what  manner  the  liability  arises,  nor 
whether  the  property  is  real  or  personal  estate.  If  the  title  is  in 
controversy,  the  person  who  is  bound  to  make  it  good  to  one  of 
the  litigating  parties  against  the  claim  of  the  other  is  identified 
in  interest  with  that  party,  and  therefore  cannot  testify  in  his 
favor.  1  And  if  the  quality  or  soundness  is  the  subject  of  dispute, 
and  the  vendee  with  warranty  has  resold  the  article  with  similar 
warranty,  the  principle  is  still  the  same.  If  the  effect  of  the 
judgment  is  certainly  to  render  him  liable,  though  it  be  only  for 

Coatsworth,  1  C.  &  P.  645  ;  Wake  v.  Lock,  5  C.  &  P.  454.  In  Sherman  v.  Barnes,  1  M. 
&  Rob.  69,  the  same  point  was  so  ruled  by  Tindal,  C.  J.,  upon  the  aiKhority  of  Morish 
V.  Foote,  though  he  seems  to  have  thought  otherwise  upon  principle,  and  j)erhaps  with 
better  reason. 

3  Rotheroe  v.  Elton,  Peake's  Cases,  84,  cited  and  approved,  per  Gihbs,  C.  J.,  in  8 
Taunt.  457. 

4  Per  Tindal,  C.  J.,  in  Fancourt  v.  Bull,  1  Bing.  N.  C.  691,  683. 

1  Serle  v.  Serle,  2  Roll.  Abr.  685  ;  21  Vin.  Abr.  362,  tit.  Trial,  G,  f,  pi.  1  ;  Steers 
V.  Carwardine,  8  C.  &  P.  570.  But  if  tlie  vendor  sold  without  any  covenant  uf  title,  or 
with  a  covenant  restricted  to  claims  set  up  under  the  vendor  himself  alone,  the  vendor 
is  a  competent  witness  for  his  vendee.  Busby  v.  Greenslate,  1  Stra.  445  ;  Twambly  v. 
Henley,  4  Mass.  441  ;  Beidelman  v.  Foulk,  5  Watts,  308  ;  Adams  v.  Cuddy,  13  Pick. 
460  ;  Bridge  v.  Eggleston,  14  Mass.  245;  Davis  v.  Spooner,  3  Pick.  284  ;  Lothrop  v. 
Muzzy,  5  Greenl.  450. 


538  LAW    OF   EVIDENCE,  [PART   III. 

costs,  he  is  incompetent,^  but  if  it  is  only  to  render  it  more  or 
less  probable  that  he  will  be  prosecuted,  the  objection  goes  only 
to  his  credibility.  But  whatever  the  case  may  be,  his  liability 
must  be  direct  and  immediate  to  the  party  calling  him,  and  not 
circuitous  and  to  some  other  person,  as,  if  a  remote  vendor  with 
warranty  is  called  by  the  defendant  as  a  witness,  where  the  arti- 
cle has  been  successively  sold  by  several  persons  with  the  same 
warranty,  before  it  came  to  the  defendant.^ 

§  398.  Cases  of  warranty.  In  order  to  render  the  witness  liable, 
and  therefore  incompetent,  as  warrantor  of  the  title,  it  is  not 
necessary  to  show  an  express  contract  to  that  effect ;  for  an  iw- 
plied  warrant!/  is  equally  binding.  Thus,  the  vendor  of  goods, 
having  possession  and  selling  them  as  his  own,  is  held  bound  in 
law  to  warrant  the  title  to  the  vendee ;  ^  and  therefore  he  is  gen- 
erally not  competent  as  a  witness  for  the  vendee  in  support  of  the 
title.  2     This  implied  warranty  of  title,  however,  in  the  case  of 

2  Lewis  V.  Peake,  7  Taunt.  153.  In  this  case  the  buyer  of  a  horse  with  warranty 
resold  him  with  a  similar  warranty,  and,  being  sued  thereon,  he  gave  notice  of  the  action 
to  his  vendor,  offering  him  the  option  of  defending  it ;  to  which  having  received  no 
answer,  he  defended  it  himself,  and  failed  ;  it  was  holden,  that  he  was  entitled  to 
recover  of  his  vendor  the  costs  of  defending  that  action,  as  part  of  the  damages  he  had 
sustained  by  the  false  warranty.  In  the  later  case  of  Baldwin  v.  Dixon,  1  M.  &  Rob. 
59,  where  the  defendant,  in  an  action  on  a  warranty  of  a  horse,  called  his  vendor,  who 
had  given  a  similar  warranty.  Lord  Tenterden,  after  examining  authorities,  admitted 
the  witness.  A  vendor  was  admitted,  under  similar  circumstances,  by  Lord  Alvanley, 
in  Briggs  v.  Crick,  5  Esp.  99.  But  in  neither  of  these  cases  does  it  appear  that  the 
witness  had  been  called  upon  to  defend  the  suit.  In  the  still  more  recent  case  of  Biss 
V.  Mountain,  1  M.  &  Rob.  302,  after  an  examination  of  various  authorities,  Alderson, 
J.,  held  the  vendor  incompetent,  on  the  ground  that  the  effect  of  the  judgment  for  the 
defendant  would  be  to  relieve  the  witness  from  an  action  at  his  suit. 

3  Clark  V.  Lucas,  Ry.  &  M.  32  ;  1  C.  &  P.  156  ;  Briggs  v.  Crick,  5  Esp.  99  ;  Mar- 
tin V.  Kelly,  1  Stew.  (Ala.)  198.  Where  the  plaintifTs  goods  were  on  the  wagon  of  a 
carrier,  which  was  driven  by  the  carrier's  servant  ;  and  the  goods  were  alleged  to  be 
injured  by  reason  of  a  defect  in  the  highway  ;  it  was  held,  in  an  action  against  the 
town  for  this  defect,  that  the  carrier's  servant  was  a  comi>etent  witness  for  the  owner 
of  the  goods.     Littlefield  v.  Portland,  13  Shepl.  37. 

1  Bl.  Comm.  451.  See  also  2  Kent,  Comni.  478,  and  cases  there  cited.  See  also 
Emerson  v.  Brigham,  10  JIass.  203  (Rand's  ed.)  n. 

2  Heermance  v.  Vernoy,  6  Johns.  5  ;  Hale  v.  Smith,  6  Greenl.  416  ;  Baxter  v. 
Graham,  5  Watts,  418.  In  the  general  doctrine,  stated  in  the  text,  that  where  the 
vendor  is  liable  over,  though  it  be  only  for  costs,  he  is  not  a  competent  witness  for  the 
vendee,  the  English  and  American  decisions  agree.  And  it  is  believed  that  the  weight 
of  English  authority  is  on  the  side  of  the  American  doctrine,  as  stated  in  the  text  ; 
namely,  that  the  vendor  in  possession  stipulates  that  his  title  is  good.  But  where  the 
witness  claims  to  have  derived  from  the  plaintiff  the  same  title  which  he  conveyed  to 
the  defendant,  and  so  is  accountable  for  the  value  to  the  one  party  or  the  other,  in 
either  event  of  the  suit,  unless  he  can  discharge  himself  by  other  proof,  he  is  a  com- 
petent witness  for  the  defendant ;  unless  he  has  so  conducted  as  to  render  himself 
accountable  to  the  latter  for  the  costs  of  the  suit,  as  part  of  the  damages  to  be  recov- 
ered against  him.  Thus,  where,  in  trover  for  a  horse,  the  defendant  called  his  vendor 
to  prove  that  the  horse  was  pledged  to  him  for  a  debt  due  from  the  plaintiff,  with 
authority  to  sell  him  after  a  certain  day,  and  that  he  sold  him  accordingly  to  the 
defendant ;  he  was  held  a  competent  witness.  Nix  v.  Cutting,  4  Taunt.  18.  So,  in 
assumpsit,  for  the  price  of  wine  sold  to  the  defendant,  where  the  defence  was,  that  he 
bought  it  of  one  Faircloth,  and  not  of  the  plaintiff,  Faircloth  was  held  a  competent 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  539 

sales  by  slicriffs,  executors,  administrators,  and  other  trustees, 
is  understood  to  extend  no  farther  than  this,  that  they  do  not 
know  of  any  infirmity  in  their  title  to  sell  in  such  capacity,  and 
,  therefore  they  are  in  general  comj)ctent  witnesses.^ 

§  399.   Parties  to  bills  of  exchange.      In  regard  to  parties  to  bills 
of  exchange  and  negotiable  promissory  notes,  we  have  already  seen 
that  the  persons  who  have  put  them  into  circulation  by  indorse- 
ments are  sometimes  held  incompetent  witnesses,  to  prove  them 
originally  void.^     But,  subject  to  this  exception,  which  is  main- 
tained on  grounds  of  public  policy,  and  of  the  interest  of  trade, 
and  the  necessity  of  confidence  in  commercial  transactions,  and 
which,  moreover,  is  not  everywhere  conceded,   parties  to  these 
instruments  are  admitted  or  rejected,  in  suits  between  other  par- 
ties, like  any  other  witnesses,  according  as  they  are  interested  or 
not  in  the  event  of  the  suit.     In  general,  their  interest  will  be 
found  to  be  equal  on  both  sides;  and  in  all  cases  of  balanced 
interest,  the  witness,   as  we  shall  hereafter  see,   is  admissible.  ^ 
Thus,  in  an  action  against  one  of  several  makers  of  a  note,  an- 
other maker  is  a  competent  witness  for  the  plaintiff  as  he  stands 
indifferent;  for  if  the  plaintiff  should  recover  in  that  action,  the 
witness  will  be  liable  to  pay  his  contributory  share;  and  if  the 
plaintiff  should  fail  in  that  action,  and  force  the  witness  to  pay 
the  whole,  in  another  suit,  he  will  still  be  entitled  to  contribu- 
tion. ^     So,  in  an  action  against  the  acceptor  of  a  bill,  the  drawer 
|is  in  general  a  competent  witness  for  either  party;  for  if  the 
plaintiff  recovers,  the  witness  pays  the  bill  by  the  hands  of  the 
acceptor ;  if  not,  he  is  liable  to  pay  it  himself. *     And  in  an  action 
by  the  indorsee  of  a  note  against  the  indorser,  the  maker  is  a  com- 
petent witness  for  the  plaintiff;  for  if  the  plaintiff  prevails,  the 

witness  for  the  defendant  to  prove  that  he  himself  purchased  the  wine  of  the  plaintiff, 
and  sold  it  to  the  defendant,  who  had  paid  him  the  price.  Larbalastier  v.  Clark,  1  B. 
&  Ad.  899.  So,  the  defendant's  vendor  has  been  held  competent,  in  trover,  to  prove 
that  the  goods  were  his  own,  and  had  been  fraudulently  taken  from  liim  by  the  plaintiff. 
Ward  V.  Wilkinson,  4  B.  &  Aid.  410,  where  Nix  v.  Cutting  is  explained  by  Holroyd,  J. 
See  also  Baldwin  v.  Dixon,  1  M.  &  Rob.  59  ;  Briggs  v.  Crick,  5  Esp."99,  and  Mr. 
Starkie's  observations  on  some  of  these  cases  ;  1  Stark.  Evid.  109,  n.  ?i.  ;  2  Stark. 
Evid.  894,  n.  d. 

'  Peto  V.  Blades,  5  Taunt.  657  ;  Mockbee  v.  Gardner,  2  Har.  &  Gill,  176  ;  Peter- 
mans  V.  Laws,  6  Leigh,  523,  529. 

1  Supra,  §§  384,  385. 

2  Infra,  §  420. 

3  York  V.  Blott,  5  M.  &  S.  71.  He  has  also  been  held  admissible  for  the  defendant. 
Thompson  v.  Armstrong,  5  Ala.  883.  But  see  the  cases  cited  supra,  §  395,  notes,  and 
12  Ohio,  279.  r     ,  a        , 

*  Dickinson  v.  Prentice,  4  Esp.  32  ;  Lowber  v.  Shaw,  5  Mason,  241,  per  Story,  J.  ; 
Rich  V.  Topi)ing,  Poake's  Cas.  224.  But  if  he  is  liable  in  one  event  for  the  costs,  he 
has  an  interest  on  that  side,  and  is  inadmissible.  Scott  v.  McLellan,  2  Greenl.  199  • 
supra,  §  391,  and  n.  (3). 


540  LAW    OP    EVIDENCE.  [PART   III. 

witness  will  be  liable  to  pay  the  note  to  the  defendant;  and  if  the 
defendant  prevails,,  the  witness  will  be  liable,  to  the  same  extent, 
to  the  plaintiff.^ 

§  400.  Same  subject.  And  though  the  testimony  of  the  wit- 
nesses, by  defeating  the  present  action  on  the  bill  or  note,  may 
probably  deter  the  holder  from  proceeding  in  another  action 
against  the  witness,  yet  this  only  affords  matter  of  observation 
to  the  jury,  as  to  the  credit  to  be  given  to  his  testimony.  Thus, 
in  an  action  by  the  indorsee  of  a  note  against  the  indorser,  the 
maker  is  a  competent  witness  for  the  defendant,  to  prove  that  the 
date  has  been  altered.^  And  in  an  action  by  the  indorsee  of  a  bill 
against  the  drawer  or  acceptor,  an  indorser  is,  in  general,  a  com- 
petent witness  for  either  party;  for  the  plaintiff,  because,  though 
his  success  may  prevent  him  from  calling  on  the  indorser,  it  is 
not  certain  that  it  will ;  and  whatever  part  of  the  bill  or  note  he 
may  be  compelled  to  pay,  he  may  recover  again  of  the  drawer  or 
acceptor;  and  he  is  competent  for  the  defendant,  because,  if  the 
plaintiff  fails  against  the  drawer  or  acceptor,  he  is  driven  either 
to  sue  the  indorser  or  abandon  his  claim.^ 

§  401.  Liability  for  costs.  But  if  the  verdict  would  necessarily 
benefit  or  affect  the  witness,  as  if  he  would  be  liable,  in  one  event, 
to  the  costs  of  the  action,  then,  without  a  release,  which  will  annul 
his  interest  in  the  event,  he  will  not  be  admissible  as  a  witness 
on  the  side  of  the  party  in  whose  favor  he  is  so  interested.  Thus, 
the  party  for  whose  use  and  accommodation  note  or  bill  has  been 
drawn  or  accepted,  is  incompetent  as  a  witness,  when  adduced  by 
him  who  has  lent  his  own  name  and  liability  for  the  accommoda- 
tion of  the  witness.^  So,  in  an  action  against  the  drawer  of  a 
bill  of  exchange,  it  has  been  held,  that  the  acceptor  is  not  a  com- 
petent witness  for  the  defendant,  to  prove  a  set-off ;  because  he  is 
interested  in  lessening  the  balance,  being  answerable  to  the  de- 
fendant only  for  the  amount  which  the  plaintiff  may  recover 
against  him.^ 

s  Venning  v.  Shuttleworth,  Bayley  on  Bills,  p.  593  ;  Hubbly  v.  Brown,  16  Johns. 
70.  But  the  maker  of  an  accommodation  note,  made  for  his  own  benefit,  is  incompe- 
tent.    Peirce  v.  Butler,  14  Mass.  303,  312  ;  infra,  §  401. 

6  Levi  V.  Essex,  MSS.,  2  Esp.  Dig.  708,  per  Ld.  Mansfield  ;  Chitty  on  Bills,  p.  654, 
n.  (h),  (8th  ed.). 

■7  Bayley  on  Bills,  594,  595  (2d  Am.  ed.  by  Phillips  &  Sewall).  And  see  Bay  v. 
Gunn,  1  Denio,  108. 

1  Jones  V.  Brooke,  4  Taunt.  463  ;  supra,  §  391,  and  n.  See  also  Bottomley  v. 
Wilson,  3  Stark.  148  ;  Harman  v.  Lasbrey,  Holt's  Cas.  390  ;  Edmonds  v.  Lowe,  8  B, 
&  C.  407  ;  Hall  v.  Cecil,  6  Bing.  181  ;  Scott  v.  McLellan,  2  Greenl.  199 ;  Peirce  v. 
Butler,  14  Mass.  303,  312  ;  Southard  v.  Wilson,  8  Shepl.  494. 

2  Mainwai-ing  v.  Mytton,  1  Stark.  83.  It  is  deemed  unnecessary  any  further  to 
pursue  this  subject  in  this  place,  or  particularly  to  mention  any  of  the  numerous  cases, 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  541 

§  402.  Same  subject.  Where  a  UahiUty  to  costs  in  the  suit 
arises  in  any  other  manner,  it  is  still  an  interest  sufficient  to 
render  the  witness  incompetent.^  Thus,  where  the  witness  called 
by  the  plaintiff  had  'himself  employed  the  attorney,  to  whom  he 
had  made  himself  liable  for  the  costs,  he  was  held  incompetent, 
without  a  release  from  the  attorney. ^  So,  where  he  had  given  the 
plaintiff'  a  bond  of  indemnity  against  the  costs  of  the  suit,  he  was 
held  incompetent  as  a  witness  for  the  plaintiff,  as  to  any  point 
arising  in  the  action;  even  such  as  the  service  of  a  notice  on  the 
defendant,  to  produce  certain  papers  at  the  trial. ^  Thus,  also, 
where  an  attorney,^  or  an  executor,^  or  the  tenant,  on  whose 
premises  the  goods  of  the  plaintiff  in  replevin  had  been  distrained 
for  rent,^  or  the  principal  in  an  administration  bond,  the  action 
being  only  against  the  surety,'  have  been  found  personally  liable 
for  the  costs  of  the  suit,  they  have  been  held  incompetent  as  wit- 
nesses on  the  side  of  the  party  in  whose  favor  they  were  thus  in- 
terested. But  if  the  contract  of  indemnity  is  illegal,  as,  for 
example,  if  it  be  a  contract  to  bear  each  other  harmless  in  doing 
wrong,  it  creates  no  legal  liability  to  affect  the  witness.^ 

§  403.  In  criminal  cases.  This  doctrine  is  applied  in  the  same 
manner  in  criminal  cases,  where  the  witness  has  a  direct,  certain, 
and  immediate  interest  in  the  result  of  the  prosecution.  Thus, 
in  cases  of  summary  convictions,  where  a  penalty  is  imposed  by 
statute,  and  the  whole  or  a  part  is  given  to  the  informer  or  prose- 
cutor, who  becomes  entitled  to  it  forthwith  upon  the  conviction, 
he  is  not,  at  the  common  law,  a  competent  witness  for  the  prose- 
cution. ^  So,  in  a  prosecution  under  the  statutes  for  forcible  en- 
try, where  the  party  injured  is  entitled  to  an  award  of  immediate 

in  which  a  party  to  a  bill  or  note  has  been  held  competent,  or  otherwise,  on  the  ground 
of  being  free  from  interest,  or  interested,  under  the  particular  circumstances  of  the 
case.  It  will  sutfice  to  refer  the  reader  to  the  cases  collected  in  Bayley  on  Bills, 
pp.  586-599  (2d  Am.  ed.  by  Phillips  &  Sewall),  with  the  notes  of  the  learned  editors  ; 
Chitty  on  Bills,  654-659  (8th  ed.)  ;  2  Stark.  Evid.  179,  182  (6tb  Am.  ed.  with  Met- 
calf's,  Ingraham's,  and  Gerhard's  notes)  ;  Thayer  v.  Grossman,  1  Metcalf,  416. 

1  8ee  sitpra,  §  395. 

2  York  V.  Gril)l)le,  1  Esp.  319;  Marland  v.  Jefferson,  2  Pick.  240;  Handley  v. 
Edwards,  1  Curt.  722. 

8  Butler  V.  Warren,  11  Johns.  57. 

*  Chadwick  v.  Upton,  3  Pick.  442. 

6  Parker  v.  Vincent,  3  C.  &  P.  38. 

6  Rush  V.  Flickwire.  17  S.  &  R.  82. 

■^  Owens  V.  Collinson,  3  Gill  &  Johns.  26.  See  also  Cannon  v.  Jones,  4  Hawks.  368  ; 
Riddle  v.  Moss,  7  Cran(.h,  206. 

8  Humphreys  v.  Miller,  4  C.  &  P.  7,  per  Ld.  Tenterden  ;  Hodson  v.  Wilkins,  7 
Greenl.  113. 

1  Rex  V.  Williams,  9  B.  &  C.  549  ;  Commonwealth  v.  Paull,  4  Pick.  251  ;  Rex  v. 
Tilly,  1  Stra.  316  ;  2  Russ.  on  Crimes,  601,  602.  But  where  the  penalty  is  to  be  re- 
covered by  the  witness  in  a  subsequent  civil  action,  he  is  not  an  incdmpetent  witness 
upon  the  indictment.     Rex  v.  Luckup,  WiUes,  425,  n.  ;  9  B.  &  C.  557,  558. 


542  LAW   OF   EVIDENCE.  [PART   III. 

restitution  of  the  lands,  he  is  not  a  competent  witness. ^  This 
rule,  however,  is  subject  to  many  exceptions,  which  will  here- 
after be  stated.  ^  But  it  may  be  proper  here  to  remark,  that,  in 
general,  where  the  penalty  or  provision  for  restitution  is  evi- 
dently introduced  for  the  sake  of  the  party  injured,  rather  than 
to  insure  the  detection  and  punishment  of  the  offender,  the  party 
is  held  incompetent* 

§  404.  Interest  in  the  record.  Having  thus  briefly  considered 
the  subject  of  disqualification,  resulting  from  a  direct,  certain, 
and  immediate  interest  in  the  event  of  the  suit,  we  come  now  to 
the  second  branch  of  the  general  rule,  namely,  that  of  interest  in 
the  record,  as  an  instrument  of  evidence  in  some  other  suit,  to 
prove  a  fact  therein  alleged.  The  record  of  a  judgment,  as  here- 
after will  be  seen,  is  always  admissible,  even  in  an  action  between 
strangers,  to  prove  the  fact  that  such  a  judgment  was  rendered, 
and  for  such  a  sum ;  but  it  is  not  always  and  in  all  cases  admis- 
sible to  prove  the  truth  of  any  fact,  on  which  the  judgment  was 
founded.  Thus  the  record  of  a  judgment  against  the  master,  for 
the  negligence  of  his  servant,  would  be  admissible  in  a  subsequent 
action-  by  the  master  against  the  servant  to  prove  the  fact,  that 
such  a  judgment  had  been  recovered  against  the  master  for  such 
an  amount,  and  upon  such  and  such  allegations ;  but  not  to  prove 
that  either  of  those  allegations  was  true ;  unless  in  certain  cases, 
where  the  servant  or  agent  has  undertaken  the  defence,  or,  being 
bound  to  indemnify,  has  been  duly  required  to  assume  it.  But 
under  the  present  head  are  usually  classed  only  those  cases  in 
which  the  record  is  admissible  in  evidence  for  or  against  the  wit- 
ness, to  establish  the  facts  therein  alleged  or  involved,  in  order 
to  acquire  a  benefit  or  repel  a  loss:^  and  it  is  in  this  view  alone 
that  the  subject  will  now  be  considered. 

§  405.  Claims  of  customary  right.  The  usual  and  clearest  illus- 
tration of  this  branch  of  the  rule  is  the  case  of  an  action  brought 
by  or  against  one  of  several  persons,  who  claim  a  customary  right 
of  common,  or  some  other  species  of  customary  right.  In  gen- 
eral, in  all  cases  depending  on  the  existence  of  a  particular  cus- 
tom, a  judgment  establishing  that  custom  is  evidence,  though  the 
parties  are  different.  Therefore,  no  person  is  a  competent  wit- 
ness in  support  of  such  custom,  who  would  derive  a  benefit  from 
its  establishment ;  because  the  record  would  be  evidence  for  him 

2  Rex  V.  Beavan,  Ry.  &  M.  242. 

8  See  infra,  §  412. 

*  Rex  V.  Williams,  9  B.  &  C.  549,  per  Bayley,  J. 

1  1  Stark.  Evid.  114,  115  ;  Hunter  v.  King,  4  B.  &  Aid.  210. 


CHAP.    II.]  COMPETENCY    OF   WITNESSES.  543 

in  another  suit,  in  which  his  own  right  may  be  controverted. 
Thus,  where  the  plaintiff  prescribed  for  common  of  pasture  upon 
Hampton  Common,  as  appurtenant  to  his  ancient  messuage,  and 
charged  the  defendant  with  neglect  to  repair  the  fence;  it  was 
held,  that  another  commoner,  who  claimed  a  similar  prescription 
in  right  of  another  tenement,  was  not  a  competent  witness  to 
prove  the  charge  ;i  and  a  fortiori  ha  is  not,  where  the  prescrip- 
tion is,  that  all  the  inhabitants  of  the  place  have  common  there.  2 
Thus,  also,  an  inhabitant  of  a  town  is  not  a  competent  witness 
to  prove  a  prescription  for  all  the  inhabitants  to  dig  clams  in  a 
certain  place ;  ^  nor  to  prove  a  prescriptive  right  of  way  for  all  the 
inhabitants.*  So  where  the  right  to  a  seat  in  the  common  coun- 
cil of  a  borough  was  in  controversy,  and  it  was  insisted  that  by 
prescription  no  person  was  entitled,  unless  he  was  an  inhabitant 
and  also  had  a  burgage  tenure;  it  was  held,  that,  though  a  person 
having  but  one  of  these  qualifications  was  a  competent  witness  to 
prove  the  prescription,  one  who  had  them  both  was  not;  for  he 
would  thereby  establish  an  exclusive  right  in  favor  of  himself.^ 
So,  where  a  corporation  was  lord  of  a  manor,  and  had  approved 
and  leased  a  part  of  the  common,  a  freeman  was  held  incompetent 
to  prove  that  a  sufficiency  of  common  was  left  for  the  commoners.  ^ 
So,  one  who  has  acted  in  breach  of  an  alleged  custom  by  the  exer- 
cise of  a  particular  trade,  is  not  a  competent  witness  to  disprove 
the  existence  of  such  custom.  ^  Nor  is  the  owner  of  property  within 
a  chapelry  a  competent  witness  to  disprove  an  immemorial  usage, 
that  the  land-owners  there  ought  to  repair  the  chapel.^  And  it  is 
proper  here  to  add,  that  in  order  to  exclude  a  witness,  where  the 
verdict  depends  on  a  custom,  which  he  is  interested  to  support,  it 
seems  to  be  necessary  that  the  custom  should  be  stated  on  the 
record ;''  for  it  is  said,  that  the  effect  of  the  verdict  to  support  the 
custom  may  be  aided  by  evidence.  ^° 

1  Ansconib  v.  Shore,  1  Taunt.  261.  See  also  Parker  v.  Mitchell,  11  Ad.  &  El. 
788. 

2  Hockley  v.  Lamb,  1  Ld.  Raym.  731. 

8  Lnfkin  v.  Haskell,  3  Pick.  3.56  ;  Moore  v.  Griffin,  9  Shepl.  350. 

*  Odiorne  v.  Wade,  8  Pick.  .518.  The  statutes  which  render  the  inhabitants  of 
towns  competent  witnesses,  where  the  corporation  is  a  party,  or  is  interested,  apply 
only  to  cases  of  corporate  rights  or  interest,  and  not  to  cases  of  individual  and  private 
interest,  though  these  may  extend  to  every  inhabitant.     See  supra,  §  331. 

6  Stevenson  v.  Nevinson,  Mayor,  &c.,  2  Ld.  Raym.  1353. 

6  Burton  v.  Hinde,  5  T.  R.  174. 

■^  The  Carpenters,  &c.  of  Shrewsbury,  v.  Hayward,  1  Doug.  374. 

8  Rhodes  v.  Ainsworth,  1  B.  &  Aid.  87.  See  also  Lord  Falmouth  v.  George,  5  Bing. 
286. 

«  Lord  Falmouth  v.  George,  5  Bing.  286;  Stevenson  v.  Nevinson  et  al.,  2  Ld.  Raym. 
1353. 

w  1  Stark.  Evid.  115,  n.  e. 


544  LAW   OF    EVIDENCE.  [PART   III. 

§  406.  Interest  both  in  suit  and  record.  There  are  some  cases, 
in  which  the  interest  of  the  witness  falls  under  both  branches  of 
this  rule,  and  in  which  he  has  been  rejected,  sometimes  on  the 
ground  of  immediate  interest  in  the  event  of  the  suit,  and  some- 
times on  the  ground  of  interest  in  the  record,  as  an  instrument 
of  evidence.  Such  is  the  case  of  the  tenant  in  possession  in  an 
action  of  ejectment;  who  is  held  incompetent  either  to  support 
his  landlord's  title, ^  or,  to  prove  that  himself,  and  not  the  defen- 
dant, was  the  tenant  in  possession  of  the  land.^  And  where  a 
declaration  was  served  on  two  tenants,  in  possession  of  different 
parts  of  the  premises,  and  a  third  person  entered  into  a  rule  to 
defend  alone  as  landlord,  it  was  held,  that  neither  of  the  tenants 
was  a  competent  witness  for  the  landlord,  to  prove  an  adverse 
possession  by  the  other  of  the  part  held  by  him ;  for  as  they  were 
identified  with  the  landlord  in  interest,  the  judgment  for  the 
plaintiff  would  be  evidence  of  his  title,  in  a  future  action  against 
them  for  the  mesne  profits.^ 

§  407.  In  criminal  cases,  interest  in  record  disqualifies.  So,  in 
criminal  cases,  a  person  interested  in  the  record  is  not  a  com- 
petent witness.  Thus  an  accessory,  whether  before  or  after  the 
fact,  is  not  competent  to  testify  for  the  principal.^  And  where 
several  were  indicted  for  a  conspiracy,  the  wife  of  one  was  held 
not  admissible  as  a  witness  for  the  others ;  a  joint  offence  being 
charged,  and  an  acquittal  of  all  the  others  being  a  ground  of 
discharge  for  her  husband.  ^  Nor  is  the  wife  of  one  joint  tres- 
passer a  competent  witness  for  another,  even  after  the  case  is 
already  clearly  proved  against  her  husband. ^ 

§  408.  Illustrations  of  competency  for  want  of  interest.  The 
extent  and  meaning  of  the  rule,  by  which  an  interested  witness 

1  Doe  V.  Williams,  Cowp.  621  ;  Bourne  v.  Turner,  1  Stra.  632. 

2  Doe  V.  Wilde,  5  Taunt.  183  ;  Doe  v.  Bingham,  4  B.  &  Aid.  672. 

8  Doe  V.  Preece,  1  Tyrwh.  410.  Formerly,  it  was  not  material  in  England,  as  it 
still  is  not  in  the  United  States,  to  determine  with  precision  in  which  of  these  modes 
the  witness  was  interested.  But  by  Stat.  3  &  4  W.  IV.  c.  42,  §§  26,  27,  the  objection 
arisin<^  from  interest  in  the  record,  as  a  futuie  instrument  of  evidence,  is  done  away  ; 
the  co°irt  being  directed,  whenever  this  objection  is  taken,  to  indorse  the  name  of  the 
witness  on  the  record  or  document  on  which  the  trial  shall  be  had,  and  of  the  party  on 
whose  behalf  he  was  called  to  testify  ;  after  which  the  verdict  or  judgrnent  in  that 
action  shall  never  be  evidence  for  or  against  the  witness,  or  any  one  claiming  under 
him.  The  practice  under  this  statute  seems  to  be  not  yet  completely  settled  ;  but  the 
cases  which  have  arisen,  and  which  it  is  deemed  unnecessary  here  to  examine,  are 
stated  and  discussed  in  Phil.  &  Am.  on  Evid.  pp.  108-113  ;  1  Phil.  Evid.  114-117. 
See  also  Poole  v.  Palmer,  9  M.  W.  71. 

1  1  Stark.  Evid.  130.  But  the  principal  is  a  competent  witness  against  the  acces- 
sory.    People  V.  Lohman,  2  Barb.  S.  C.  216. 

'2  Rex  V.  Locker,  5  Esp.  107 ;  2  Euss.  on  Crimes,  602  ;  S2i.pra,  403 ;  Commonwealth 
V.  Robinson,  1  Gray,  .5.55 

8  Hawkesworth  v.  Showier,  12  M.  &  W.  45. 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  545 

is  rejected  as  incompetent,  may  be  ftirtlicr  illustrated  by  refer- 
ence to  some  cases,  in  which  the  witness  has  l)oen  deemed  not  dis- 
qualified. We  have  already  seen  that  mere  wishes  or  bias  on  the 
mind  of  the  witness  in  favor  of  the  party  producing  him,  or  strong 
hopes  or  expectations  of  benefit,  or  similarity  of  situation,  or  any 
other  motive,  short  of  an  actual  and  legal  interest  in  the  suit,  will 
not  disqualify  the  witness. ^  Such  circumstances  may  influence 
his  mind,  and  affect  his  opinions,  and  perhaps  may  tempt  him  at 
least  to  give  a  false  color  to  his  statements ;  and  therefore  they 
should  be  carefully  considered  by  the  jury,  in  determining  the 
weight  or  credibility  to  be  given  to  his  testimony ;  but  they  are 
not  deemed  sufficient  to  justify  its  utter  exclusion  from  the  jury. 
It  may  now  be  further  observed,  that  a  remote^  contingent,,  and 
uncertain  interest,  does  not  disqualify  the  witness.  Thus,  a  paid 
legatee  of  a  specific  sum,  or  of  a  chattel,  is  a  competent  witness 
for  the  executor;  for  though  the  money  paid  to  a  legatee  may 
sometimes  be  recovered  back,  when  necessary  for  the  payment  of 
paramount  claims,  yet  it  is  not  certain  that  it  will  be  needed  for 
such  purpose ;  nor  is  it  certain,  if  the  legacy  has  not  been  paid, 
that  there  are  not  other  funds  sufficient  to  pay  it.^  So,  also,  a 
creditor  of  an  estate,  not  in  a  course  of  liquidation  as  an  insol- 
vent estate,  is  a  competent  witness  for  the  administrator ;  for  he 
stands  in  the  same  relation  to  the  estate  now  as  he  did  to  the 
debtor  in  his  lifetime ;  and  the  probability  that  his  testimony  may 
be  beneficial  to  himself,  by  increasing  the  fund  out  of  which  he  is 
to  be  paid,  is  equally  remote  and  contingent  in  both  cases.  ^  It  is 
only  where  his  testimony  will  certainly  have  that  effect,  as  in  the 
case  of  a  creditor  to  an  insolvent  estate,  or  a  residuary  legatee,  or 
a  distributee,  that  the  witness  is  rendered  incompetent.*  Yet  in 
these  cases,  and  in  the  case  of  a  creditor  to  a  bankrupt  estate,  if 
the  legatee,  distributee,  or  creditor  has  assigned  his  interest  to 
another  person,  even  equitably,  his  competency  is  restored.^  In 
an  action  of  covenant  against  a  lessee,  for  not  laying  the  stipu- 
lated quantity  of  manure  upon  the  land ;  upon  a  plea  of  perfor- 
mance, a  sub-lessee  of  the  defendant  is  a  competent  witness  for 
him,  to  support  the  plea ;  ^  for  it  does  not  appear  that  he  is  under 

1  Supra,  §§  387,  389. 

2  Clarke  v.  Gannon,  R.  &  M.  31. 

^  Paull  V.  Brown,  6  Esp.  34;  Davies  v.  Davies,  1  Mood.  &  M.  345  ;  Carter  v. 
Pearce,  1  T.  R.  164.  An  annuitant  under  the  will  is  also  a  competent  witness  for  the 
executor,  in  an  action  against  him  for  the  debt  of  the  testator.  Nowell  v.  Davies,  5 
B.  &  Ad.  368. 

*  Supra,  §  392. 

^  Heath  v.  Hall,  4  Taunt.  326  ;  Boyuton  v.  Turner,  13  Mass,  391. 

8  Wishaw  V.  Barnes,  1  Camph.  341. 
VOL    r.  —  35 


546  LAW    OF    EVIDENCE.  [PART    IIT. 

the  like  duty  to  the  defendant,  or  that  a  recovery  by  the  latter 
would  place  the  witness  in  a  state  of  security  against  a  similar 
action.''  Upon  the  same  principle,  a  defendant  against  whom  a 
civil  action  is  pending  is  a  competent  witness  for  the  government 
on  the  trial  of  an  indictment  for  perjury,  against  one  who  has  been 
summoned  as  a  witness  for  the  plaintiff  in  the  civil  action.^ 

§  409.  Same  subject.  Thus,  also,  the  tenant  in  possession  is  a 
competent  witness  to  support  an  action  on  the  case,  brought  by 
the  reversioner,  for  an  injury  done  to  the  inheritance.^  So,  in  an 
action  against  an  administrator  for  a  debt  due  by  the  intestate,  a 
surety  in  the  administrator's  bond  in  the  ecclesiastical  court  is  a 
competent  witness  for  him,  to  prove  a  tender;  for  it  is  but  a  bare 
possibility  that  an  action  may  be  brought  upon  the  bond.'^  So,  in 
an  action  against  a  debtor,  who  pleads  the  insolvent  debtor's  act 
in  discharge,  another  creditor  is  a  competent  witness  for  the 
plaintiff,  to  prove  that,  in  fact,  the  defendant  is  not  within  the 
operation  of  the  act.  ^  An  executor  or  trustee  under  a  will,  taking 
no  beneficial  interest  under  the  will,  is  a  good  attesting  witness.* 
And  in  an  action  against  an  administrator  upon  a  bond  of  the  in- 
testate, and  a  plea  of  pleni  adminhtravit  by  the  payment  of  an- 
other bond  debt,  the  obligee  in  the  latter  bond  is  a  competent 
witness  to  support  the  plea.^  A  trespasser,  not  sued,  is  a  com- 
petent witness  for  the  plaintiff,  against  his  co-trespasser.^  In  a 
qui  tarn  action,  for  the  penalty  for  taking  excessive  usury,  the 
borrower  of  the  money  is  a  competent  witness  for  the  plaintiff.'^ 
A  person  who  has  been  arrested  on  mesne  process,  and  suffered  to 
escape,  is  a  competent  witness  for  the  plaintiff,  in  an  action 
against  the  sheriff  for  the  escape;^  for  though  the  whole  debt 

">  Supra,  §  394. 

8  Hart's  Case,  2  Rob.  (Va.)  819. 

1  Doddington  v.  Hudson,  1  Bing.  257.  Where  the  defence  rested  on  several  cogni- 
zances, it  was  held,  that  the  person  under  whom  one  of  the  cognizances  was  made,  was 
competent  to  prove  matters  distinct  from  and  independent  of  that  particular  cognizance. 
Walker  v.  Giles,  2  C.  &  K.  671. 

2  Carter  v.  Pearce,  1  T.  R.  163.  ^  Norcot  v.  Orcott,  1  Stra.  6.50. 

*  Phipps  V.  Pitcher,  6  Taunt.  220  ;  Comstock  v.  Hadlyme,  8  Conn.  254.  In  Mas- 
sachusetts, the  executor  has  been  held  incompetent  to  i)rove  the  will  in  the  court  of 
probate,  he  beinjj  party  to  the  proceedings,  and  liable  to  the  cost  of  the  trial.  Sears  v. 
Dillingham,  12  Mass.  358.  But  the  will  may  be  proved  by  the  testimony  of  the  other 
witnesses,  he  having  been  a  competent  witness  at  the  time  of  attestation.  Ibid.  Gen- 
erally speaking,  any  trustee  may  be  a  witness,  if  he  has  no  interest  in  the  matter  ;  but 
not  otherwise.  Main  v.  New.son,  Anthon,  11  ;  Johnson  v.  Cunningham,  1  Ala.  249  ; 
George  v.  Kimball,  24  Pick.  234  ;  Norwood  v.  Marrow,  4  Dev.  &  Bat.  442. 

6  Bull.  N.  P.  143  ;  1  Ld.  Raym.  745. 

^  Morris  v.  Daubigny,  5  Moore,  319.  In  an  action  against  the  printer  of  a  news- 
paper for  a  libel,  a  proprietor  of  the  paper  is  a  competent  witness,  as  he  is  not  liable  to 
contribution.     Moscati  v.  Lawson,  7  C.  &  P.  32. 

'  Smith  V.  Prager,  7  T.  R.  60. 
.     8  Cass  V.  Cameron,  Peaku's  Cas.  124 ;  Hunter  v.  King,  4  B.  &  Aid.  210.     If  the 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  647 

may  be  recovered  against  the  sheriff,  yet,  in  an  action  on  the 
judgment  against  the  original  debtor,  the  latter  can  neither  plead 
in  bar,  nor  give  in  evidence,  in  mitigation  of  damages,  the  judg- 
ment recovered  against  the  sheriff.  And  one  who  has  been  rescued 
is  a  competent  witness  for  the  defendant,  in  an  action  against  him 
for  the  rescue.^  So,  a  mariner,  entitled  to  a  share  in  a  prize,  is 
a  competent  witness  for  the  captain  in  an  action  brought  by  him 
for  part  of  the  goods  taken. i*'  In  all  these  cases,  it  is  obvious 
that  whatever  interest  the  witness  might  have,  it  was  merely  con- 
tingent and  remote ;  and  on  this  ground,  the  objection  has  been 
held  to  go  only  to  his  credibility. 

§  410.  Witness  may  testify  against  his  interest.  It  is  hardly 
necessary  to  observe  that,  where  a  witness  is  produced  to  testify 
against  his  interest,  the  rule,  that  interest  disqualifies,  does  not 
apply,  and  the  witness  is  competent. 

§  411.  Exceptions  to  rule  disqualifying  by  interest.  The  gen- 
eral rule,  that  a  witness  interested  in  the  subject  of  the  suit,  or 
in  the  record,  is  not  competent  to  testify  on  the  side  of  his  inter- 
est, having  been  thus  stated  and  explained,  it  remains  for  us  to 
consider  some  of  the  exceptions  to  the  rule,  which,  for  various 
reasons,  have  been  allowed.  These  exceptions  chiefly  prevail 
either  in  criminal  cases,  or  in  the  affairs  of  trade  and  commerce, 
and  are  admitted  on  grounds  of  public  necessity  and  convenience, 
and  to  prevent  a  failure  of  justice.  They  may  be  conveniently 
classed  thus:  (1.)  Where  the  witness,  in  a  criminal  case  is  enti- 
tled to  a  reward,  upon  conviction  of  the  offender;  (2.)  Where, 
being  otherwise  interested,  he  is  made  competent  by  statute; 
(3.)  The  case  of  agents,  carriers,  factors,  brokers,  or  servants, 
when  called  to  prove  acts  done  for  their  principals,  in  the  course 
of  their  employment;  and  (4.)  The  case  of  a  witness,  whose  in- 
terest has  been  acquired  after  the  party  had  become  entitled  to 
his  testimony.  To  these  a  few  others  may  be  added,  not  falling 
under  any  of  these  heads. 

§  412.  Witnesses  entitled  to  reward.  And  in  the  first  place,  it 
is  to  be  observed,  that  the  circumstance  that  a  witness  for  the 
prosecution  will  be  entitled  to  a  retvard  from  the  government  upon 
conviction  of  the  offender,  or  to  a  restoration,  as  owner  of  the 
property  stolen,  or  to  a  portion  of  the  fine  or  penalty  inflicted,  is 
not  admitted  as  a  valid  objection  to  his  competency.     By  the  very 

escape  was  committed  while  the  debtor  was  at  large,  under  a  bond  for  the  prison 
liberties,  the  jailor,  who  took  the  bond  is  a  competeut  witness  for  the  sheriff.  Stewart 
V.  Kip,  5  Johns.  256. 

y  Wilson  V.  Gary,  6  Mod.  211. 

1"  Anon.,  Skin.  403. 


548  LAW    OP    EVIDENCE.  [PART   III. 

statute,  conferring  a  benefit  upon  a  person,  who,  but  for  that  bone- 
fit,  would  have  been  a  witness,  his  competency  is  virtually  con- 
tinued, and  he  is  as  much  a  witness  after  that  benefit,  as  he  would 
have  been  before.  The  case  is  clear  upon  grounds  of  public  policy, 
with  a  view  to  the  public  interest,  and  because  of  the  principle  on 
which  rewards  are  given.  The  public  has  an  interest  in  the  sup- 
pression of  crime,  and  the  conviction  of  criminals ;  it  is  with  a 
view  to  stir  up  greater  vigilance  in  apprehending,  that  rewards 
are  given;  and  it  would  defeat  the  object  of  the  legislature  to 
narrow  the  means  of  conviction,  by  means  of  those  rewards,  and 
to  exclude  testimony,  which  otherwise  would  have  been  admis- 
sible. ^  The  distinction  between  these  excepted  cases,  and  those 
which  fall  under  the  general  rule,  is,  that  in  the  latter,  the  bene- 
fit resulting  to  the  witness  is  created  chiefly  for  his  own  sake,  and 
not  for  public  purposes.  Such  is  the  case  of  certain  summary 
convictions  heretofore  mentioned. ^  But  where  it  is  plain,  that 
the  infliction  of  a  fine  or  penalty  is  intended  as  a  punishment,  in 
furtherance  of  public  justice,  rather  than  as  an  indemnity  to 
the  party  injured,  and  that  the  detection  and  conviction  of  the 
offender  are  the  objects  of  the  legislature,  the  case  will  be  within 
the  exception,  and  the  person  benefited  by  the  conviction  will, 
notwithstanding  his  interest,  be  competent. ^  If  the  reward  to 
which  the  witness  will  be  entitled  has  been  offered  hy  a  private 
individual,  the  rule  is  the  same,  the  witness  being  still  compe- 
tent; but  the  principle  on  which  it  stands  is  different;  namely, 
this,  that  the  public  have  an  interest  upon  public  grounds,  in  the 
testimony  of  every  person  who  knows  anything  as  to  a  crime ;  and 
that  nothing  which  private  individuals  can  do  will  take  away  the 
public  right. ^  The  interest,  also,  of  the  witness  is  contingent; 
and,  after  all,  he  may  not  become  entitled  to  the  reward. 

§  413.  Or  pardon.  The  reason  of  this  exception  extends  to,  and 
accordingly  it  has  been  held  to  include,  the  cases  where,  instead 
of  a  pecuniary  reward,  2i  pardon  or  exemption  from  prosecution  is 
offered  by  statute  to  any  person  participating  in  a  particular  of- 
fence, provided  another  of  the  parties  should  be  convicted  upon 

1  Rex  V.  Williams,  9  B.  &  C.  549,  556,  per  Bayley,  J.  See  also  1  Gilb.  Evid.  by 
Lofft,  245-250. 

2  Supra,  §  403. 

3  Rex  V.  Williams,  9  B.  &  C.  549,  560,  per  Bayley,  J.  See  also  the  case  of  the 
Rioters.  1  Loach,  Cr.  Cas.  314,  n.  a,  where  the  general  question  of  the  admissibility  of 
witnesses,  to  whom  a  reward  was  offered  by  the  government,  being  submitted  to  the 
twelve  iudges,  was  resolved  in  the  affirmative.  McNally's  Evid.  p.  61,  Rule  12  ; 
United  States  v.  Murphy,  16  Peters,  203  ;  United  States  v.  Wilson,  1  Baldw.  99;  Com- 
monwealth V.  Moulton,  9  Mass.  30;  Rex  v.  Tensdale,  3  Esp.  68,  and  the  cases  cited  in 
Mr.  Day's  note  ;  Salisbury  v.  Connecticut,  6  Conu.  101. 

*  9  B.  &  C.  556,  per  Bayley,  J. 


CHAP.    II.]  COMPETENCY   OP    WITNESSES.  549 

his  evidence.  In  such  cases,  Lord  Ellenborough  remarked,  that 
the  statute  gave  a  parliamentary  capacitation  to  the  witness,  not- 
withstanding his  interest  in  the  cause ;  for  it  was  not  probable 
that  the  legislature  would  intend  to  discharge  one  offender,  upon 
his  discovering  another,  so  that  the  latter  might  be  convicted, 
without  intending  that  the  discoverer  should  be  a  competent 
witness.^ 

§  414.  Or  other  benefit.  And  in  like  manner,  where  the  wit- 
ness will  directly  derive  any  other  benejit  from  the  conviction  of 
the  offender,  he  is  still  a  competent  witness  for  the  government, 
in  the  cases  already  mentioned.  Formerly,  indeed,  it  was  held 
that  the  persoti  whose  name  was  alleged  to  be  forged  was  not  ad- 
missible as  a  witness  against  the  prisoner,  on  an  indictment  for 
the  forgery,  upon  the  notion  that  the  prosecution  was  in  the 
nature  of  a  proceeding  in  rem,  and  that  the  conviction  warranted 
a  judicial  cancellation  of  the  instrument.  And  the  prosecutor  in 
an  indictment  for  perjury  has  been  thought  incompetent,  where 
he  had  a  suit  pending,  in  which  the  person  prosecuted  was  a 
material  witness  against  him,  or  was  defendant  against  him  in  a 
suit  in  equity  in  which  his  answer  might  be  evidence.  But  this 
opinion  as  to  cases  of  perjury  has  since  been  exploded ;  and  the 
party  is,  in  all  such  cases,  held  admissible  as  a  witness,  his  credi- 
bility being  left  to  the  jury.  For  wherever  the  party  offers  as 
evidence,  even  to  a  collateral  point,  a  record  which  has  been  ob- 
tained on  his  own  testimony,  it  is  not  admitted ;  and,  moreover, 
the  record  in  a  criminal  prosecution  is  generally  not  evidence 
of  the  facts  in  a  civil  suit,  the  parties  not  being  the  same.^ 
And  as  to  the  person  whose  name  has  been  forged,  the  unsound- 
ness of  the  rule  by  which  he  was  held  incompetent  was  tacitly 
conceded  in  several  of  the  more  recent  cases,  which  were  held  not 
to  be  within  the  rule ;  and  at  length  it  was  repealed  in  England 
by  an  express  statute, ^  which  renders  the  party  injured  a  compe- 
tent witness  in  all  criminal  prosecutions  for  forgery.  In  America, 
though  in  some  of  the  earlier  cases  the  old  English  rule  of  exclu- 
sion was  followed,  yet  the  weight  of  authority,  including  the  later 
decisions,  is  quite  the  other  way,  and  the  witness  is  now  almost 
universally  held  admissible.^ 

5  Heward  r.  Shipley,  4  East,  180,  183.  See  also  Rex  v.  Rudd,  1  Leach,  Cr.  Cas. 
115  ;  Bush  V.  Railing,  Sayer,  289  ;  Mead  v.  Robinson,  Willes,  422  ;  Sutton  v.  Bishop, 
4  Burr.  2283. 

1  Gilb.  Evid.  by  Lofft,  pp.  33,  34  ;  Bull.  N.  P.  232.  245  ;  Rex  v.  Boston,  4  East, 
572  ;  Arahaius  v.  Bunn,  4  Burr.  2251.     See  further,  infra,  §  537. 

2  9  Geo.  IV.  c.  32. 

*  Respublica  v.  Keating,  1  Dall.  110  ;  Pennsylvania  v.  Farrel,  Addis.  246  ;  People 


550  LAW    OP    EVIDENCE.  [PART    III 

§  415.  Informers.  The  second  class  of  cases  in  which  the  gen- 
eral rule  of  incompetency  by  reason  of  interest  does  not  apply, 
consists  of  exceptions  created  by  express  statutes,  and  which  other- 
wise would  not  fall  within  the  reason  of  the  first  exception.  Of 
this  sort  are  cases  where  the  informer  and  prosecutor,  in  divers 
summary  convictions  and  trials  for  petty  offence,  is,  by  the  stat- 
utes of  different  States,  expressly  made  a  competent  witness,  not- 
withstanding his  interest  in  the  fine  or  forfeiture ;  but  of  which 
the  plan  of  this  Treatise  does  not  require  a  particular  enumeration. 

§  416.  Agents,  factors,  brokers,  &c.  The  third  class  of  cases 
excepted  out  of  the  general  rule,  is  that  of  agents,  carriers,  fac- 
tors, brokers,  and  other  servants,  when  offered  to  prove  the  mak- 
ing of  contracts,  the  receipt  or  payment  of  money,  the  receipt  or 
delivery  of  goods,  and  other  acts  done  within  the  scope  of  their 
employment.  This  exception  has  its  foundation  in  public  con- 
venience and  necessity  ;i  for  otherwise  affairs  of  daily  and  ordi- 
nary occurrence  could  not  be  proved,  and  the  freedom  of  trade 
and  commercial  intercourse  would  be  inconveniently  restrained. 
And  it  extends,  in  principle,  to  every  species  of  agency  or  inter- 
vention, by  which  business  is  transacted ;  unless  the  case  is  over- 
borne by  some  other  rule.  Thus,  where  the  acceptor  of  a  bill  of 
exchange  was  also  the  agent  of  the  defendant,  who  was  both 
drawer  and  indorser,  he  was  held  incompetent,  in  an  action  by 
the  indorsee,  to  prove  the  terms  on  which  he  negotiated  the  bill 
to  the  indorsee,  in  order  to  defeat  the  action,  though  the  facts 
occurred  in  the  course  of  his  agency  for  the  defendant,  for  whose 
use  the  bill  was  negotiated ;  it  being  apparent  that  the  witness 

V.  Howell,  4  Johns.  296,  302  ;  People  v.  Dean,  6  Cowen,  27  ;  Commonwealth  v.  Frost, 
5  Mass.  53  ;  Commonwealth  v.  Waite,  Id.  261;  State  v.  Stanton,  1  Ired.  424  ;  Sim- 
mons V.  State,  7  Ham.  Ohio,  116.  Lord  Denman  is  reported  to  have  ruled,  at  Nisi 
Prius,  that  where  the  prosecutor,  in  an  indictment  for  perjury,  expected  that  the  pris- 
oner would  be  called  as  a  witness  against  him  in  a  civil  action  about  to  be  tried,  he 
was  incompetent  as  a  witness  to  support  the  indictment.  Rex  v.  Hulme,  7  C.  &  P.  8. 
But  qace7-e,  and  see  Rex  v.  Boston,  4  East,  572  ;  supra,  §  362.  In  several  of  the 
United  States,  the  party  injured,  or  intended  to  be  injured,  or  entitled  to  satisfaction 
for  the  injury,  or  liable  to  pay  the  costs  of  the  prosecution,  is  by  statute  made  a  com- 
petent witness  upon  a  criminal  prosecution  for  the  offence.  See  Missouri  Rev.  Stat. 
1845,  c.  148,  §  22  ;  Illinois  Kev.  Stat.  1833,  Crim.  Code,  §§  154,  169,  pp.  208,  212  ; 
California  Rev.  Stat.  1850,  c.  99,  §  13.  In  New  Hampshire,  no  person  is  disqualified 
as  a  witness  in  a  criminal  ]irosecution  by  reason  of  interest,  "  except  the  respondent." 
Rev.  Stat.  1842,  c.  225,  §  17.  As  to  the  mode  of  examining  the  prosecutor,  in  a  trial 
for  forgery,  see  post,  vol.  iii.  §  106,  n. 

1  Bull.  N.  P.  289  ;  10  B.  &  C.  864,  per  Parke,  J.  ;  Benjamin  v.  Porteus,  2  H.  Bl. 
591  ;  Matthews  v.  Haydon,  2  Esp.  509.  This  necessity,  says  Mr.  Evans,  is  that  which 
arises  from  the  general  state  and  order  of  society,  and  not  that  which  is  merely  founded 
on  the  accidental  want  or  failure  of  evidence  in  the  particular  case.  Poth.  on  Obi.  by 
Evans,  App.  No.  16,  pp.  208,  267.  In  all  the  cases  of  this  class,  there  seems  also  to 
be  enough  of  contingency  in  the  nature  of  the  interest,  to  render  the  witness  admissi- 
ble under  the  general  rule. 


CHAP.    II.]  COMPETENCY   OP   WITNESSES.  551 

was  interested  in  the  costs  of  the  suit.'^  But  in  cases  not  thus 
controlled  by  other  rules,  the  constant  course  is  to  admit  the  wit- 
ness notwithstanding  his  apparent  interest  in  the  event  of  the  suit.^ 
Thus,  a  porter,  a  journeyman,  or  salesman,  is  admissible  to  prove 
the  delivery  of  goods.*  A  broker,  who  has  effected  a  policy,  is 
a  competent  witness  for  the  assured,  to  prove  any  matters  con- 
nected with  the  policy ;  even  though  he  has  an  interest  in  it  aris- 
ing from  his  lien.^  A  factor,  who  sells  for  the  plaintiff,  and  is  to 
have  a  poundage  on  the  amount,  is  a  competent  witness  to  prove 
the  contract  of  sale.^  So,  though  he  is  to  have  for  himself  all  he 
has  bargained  for  beyond  a  certain  amount,  he  is  still  a  compe- 
tent witness  for  the  seller.^  A  clerk,  who  has  received  money, 
is  a  competent  witness  for  the  party  who  paid  it,  to  prove  the  pay- 
ment, though  he  is  himself  liable  on  the  receipt  of  it.^  A  carrier 
is  admissible  fur  the  plaintiff,  to  prove  that  he  paid  a  sum  of  money 
to  the  defendant  by  mistake,  in  an  action  to  recover  it  back.^  So 
of  a  banker's  clerk.  ^"^  A  servant  is  a  witness  for  his  master,  in 
an  action  against  the  latter  for  a  penalty ;  such,  for  example,  as 
for  selling  coals  without  measure  by  the  bushel,  though  the  act 
were  done  by  the  servant.  ^^  A  carrier's  book-keeper  is  a  com- 
petent witness  for  his  master,  in  an  action  for  not  safely  carrying 
goods.  '2  A  shipmaster  is  a  competent  witness  for  the  defendant 
in  an  action  against  his  owner,  to  prove  the  advancement  of 
moneys  for  the  purposes  of  the  voyage,  even  though  he  gave  the 
plaintiff  a  bill  of  exchange  on  his  owner  for  the  amount,  i^  The 
cashier  or  teller  of  a  bank  is  a  competent  witness  for  the  bank, 
to  charge  the  defendant  on  a  promissory  note,^*  or  for  money  lent, 
or  overpaid,  15  or  obtained  from  the  officer  without  the  security 
which  he  should  have  received ;  and  even  though  the  officer  has 
given  bond  to  the  bank  for  his  official  good  conduct,  i**    And  an 

2  Edmonds  v.  Lowe,  8  B.  &  C.  407. 

3  Theobald  v.  Trego tt,  11  Mod.  262,  per  Holt,  C.  J. 

*  Bull.  N.  P.  289  ;  4  T.  R.  590  ;  Adams  v.  Davis,  3  Esp.  48. 

5  Hunter  v.  Leathley,  10  B.  &  C.  858. 

^  Dixon  V.  Cooi)er,  3  Wils.  40  ;  Shepard  v.  Palmer,  6  Conn.  95  ;  Depeau  v.  Hyams, 
2  McCord,  146  ;  Scott  v.  Wells,  6  Watts  &  Serg.  357. 

^  Benjamin  v.  Porteus,  2.H.  Bl.  590;  Caune  v.  Sagory,  4  Martin,  81. 

8  Matthews  v.  Haydon,  2  Esp.  509. 

8  Barker  v.  Macrae,  3  Campb.  144. 
1"  Martin  v.  Horrell,  1  Stra.  647. 

"  E.  Ind.  Co.  V.  Gosling,  Bull.  N.  P.  289,  per  Lee,  C.  J. 
^■■^  Spencer  v.  Gouldiiig,  Parke's  (''as.  129. 

1'  Descadillas  v.  Harris,  8  Greenl.   398  ;   Milward  v.  Hallett,  2  Caines,   77.     And 
see  Martineau  v.  Woodland,  2  C.  &  P.  65. 
"  Strafford  Bank  v.  Cornell,  1  N.  H.  192. 

15  O'Brien  v.  Louisiana  State  Bank,  5  Martin,  n.  s.  305  ;  United  States  Bank  v. 
Johnson,  Id.  310. 

16  Franklin  Bank  v.  Freeman,  16  Pick,  535  ;  U.  S.  Bank  v.  Stearns,  15  Wend.  314. 


552  LAW    OF    EVIDENCE.  [PART    III. 

api;cnt  is  also  a  competent  witness  to  prove  his  own  authority,  if 
it  be  by  parol.  ^^ 

§  417.  Limitations  of  exception  in  favor  of  agents,  &c.  This 
exception  being  thus  founded  upon  considerations  of  public  ne- 
cessity and  convenience,  for  the  sake  of  trade  and  the  common 
usage  of  business,  it  is  manifest  that  it  cannot  he  extended  to 
cases  where  the  witness  is  called  to  testify  to  facts  out  of  the  usual 
and  ordinary  course  of  business,  or  to  contradict  or  deny  the  effect 
of  those  acts  which  he  has  done  as  agent.  He  is  safely  admitted, 
in  all  cases,  to  prove  that  he  acted  according  to  the  directions  of 
his  principal,  and  within  the  scope  of  his  duty ;  both  on  the  ground 
of  necessity,  and  because  the  principal  can  never  maintain  an 
action  against  him  for  any  act  done  according  to  his  own  direc- 
tions, whatever  may  be  the  result  of  the  suit  in  which  he  is  called 
as  a  witness.  But  if  the  cause  depends  on  the  question,  whether 
the  agent  has  been  guilty  of  some  tortious  act  or  some  negligence 
in  the  course  of  executing  the  orders  of  his  principal,  and  in  re- 
spect of  which  he  would  be  liable  over  to  the  principal  if  the 
latter  should  fail  in  the  action  pending  against  him,  the  agent, 
as  we  have  seen,  is  not  a  competent  witness  for  his  principal, 
without  a  release.  ^^ 

§  418.  Interest,  when  and  how  acquired.  In  the  fourth  class  of 
exceptions  to  the  rule  of  incompetency  by  reason  of  interest, 
regard  is  paid  to  the  time  and  manner  in' which  the  interest  was 
acquired.  It  has  been  laid  down  in  general  terms,  that  where 
one  person  becomes  entitled  to  the  testimony  of  another,  the  lat- 
ter shall  not  be  rendered  incompetent  to  testify  by  reason  of  any 
interest  subsequently  acquired  in  the  event  of  the  suit.^  But 
though  the  doctrine  is  not  now  universally  admitted  to  that  ex- 
tent, yet  it  is  well  settled  and  agreed,  that  in  all  cases  where  the 
interest  has  been  subsequently  created  by  the  fraudulent  act  of  the 
adverse  party,  for  the  purpose  of  taking  off  his  testimony,  or  by 
any  act  of  mere  wantonness  and  aside  from  the  ordinary  course 
of  business  on  the  part  of  the  witness,  he  is  not  thereby  rendered 
incompetent.  And  where  the  person  was  the  original  witness  of 
the  transaction  or  agreement  between  the  parties,  in  whose  tes- 
timony they  both  had  a  common  interest,  it  seems  also  agreed, 

"  Lowber  v.  Shaw,  5  Mason,  242,  per  Story,  J.  ;  McGunnagle  v.  Thornton,  10  S. 
&  R.  251  ;  Ilderton  v.  Atkinson,  7  T.  R.  480  ;  Birt  v.  Kershaw,  2  East,  458. 

18  Supra,  §§  394-396  ;  Miller  v.  Falconer,  1  Campb.  251  ;  Theobald  v.  Tregott,  11 
Mod.  262  ;  Gevers  v.  Mainwaring,  1  Holt's  Gas.  139  ;  McBiain  v.  Fortune,  3  Gampb. 
317  ;  1  Stark.  Evid.  113,  Fuller  v.  Wheelock,  10  Pick.  135,  138  ;  McDowell  v.  Simp- 
son, 3  Watts,  129,  135,  per  Kennedy,  J. 

1  See.  Bent  v.  Baker,  3  T.  R.  27,  per  Ld.  Keuyon,  and  Ashhurst,  J.  ;  Barlow  v. 
Vowcll,  Skin.  586,  per  Ld.  Holt ;  s.  c.  Gowp.  736  ;  Jackson  v.  Rumsey,  3  Johns.  Cas. 
234,  237  ;  supra,  §  167. 


CHAP.    II  ]  COMPETENCY   OP    WITNESSES.  553 

that  it  shall  not  be  in  the  power,  either  of  the  witness  or  of  one 
of  the  parties,  to  deprive  the  other  of  his  testimony  by  reason  of 
any  interest  subsequently  acquired,  even  though  it  were  acquired 
without  any  such  intention  on  the  part  of  the  witness  or  of  the 
party. 2  But  the  question  upon  which  learned  judges  have  been 
divided  in  oi)inion  is,  whether,  where  the  witness  was  not  the 
agent  of  both  parties,  or  was  not  called  as  a  witness  of  the  origi- 
nal agreement  or  transaction,  he  ought  to  be  rendered  incompe- 
tent by  reason  of  an  interest  subsqeuently  acquired  in  good  faith 
and  in  the  ordinary  course  of  business.  On  this  point  it  was  held 
by  Lord  Ellenborough  that  the  pendency  of  a  suit  could  not  pre- 
vent third  persons  from  transacting  business  bona  fide  with  one  of 
the  parties;  and  that,  if  an  interest  in  the  event  of  the  suit  is 
thereby  acquired,  the  common  consequence  of  law  must  follow, 
that  the  person  so  interested  cannot  be  examined  as  a  witness  for 
that  party  from  whose  success  he  will  necessarily  derive  an  advan- 
tage. ^  And  therefore  it  was  held,  that  where  the  defence  to  an 
action  on  a  policy  of  insurance  was  that  there  had  been  a  fraudu- 
lent concealment  of  material  facts,  an  underwriter,  who  had  paid 
on  a  promise  of  repayment  if  the  policy  should  be  determined  in- 
valid, and  who  was  under  no  obligation  to  become  a  witness  for 
either  party,  was  not  a  competent  witness  for  another  underwriter 
who  disputed  the  loss.*  This  doctrine  has  been  recognized  in  the 
courts  of  several  of  the  United  States  as  founded  in  good  reason, ^ 
but,  the  question  being  presented  to  the  Supreme  Court  of  the 
United  States,  the  learned  judges  were  divided  in  opinion,  and 
no  judgment  was  given  upon  the  point. ^  If  the  subsequent  in- 
terest has  been  created  by  the  agency  of  the  party  producing  the 
witness,  he  is  disqualified ;  the  party  having  no  right  to  complain 
of  his  own  act.'' 

§  419,  Witness  may  divest  himself  of  interest.  It  may  here  be 
added,  that  where  an  interested  witness  does  all  in  his  power  to 
divest  himself  of  his  interest,  by  offering  to  surrender  or  release  it, 

2  Forrester  v.  Pigou,  3  Campb.  381  ;  1  Stark.  Evid.  118  ;  L»ng  v.  Bailie,  4  S.  & 
R.  222  ;  14  Pick.  47  ;  Phelps  v.  Riley,  3  Conn.  266,  272  ;  Rex  v.  Fox,  1  Stra.  652; 
supra,  §  167. 

8  Forrester  v.  Pigou,  3  Campb.  381  ;  s.  c.  1  M.  &  S.  9 ;  HoviU  v.  Stephenson,  5 
Bing.  493  ;  supra,  §  167. 

*  Forrester  v.  Pigou,  3  Campb.  381  ;  s.  c.  1  M.  &  S.  9. 

5  Phelps  V.  Riley,  3  Conn.  266,  272  ;  Eastman  v.  Winship,  14  Pick.  44,  47  ;  Long 
V.  Bailie,  4  Serg.  &  K.  222  ;  Manchester  Iron  Manufacturing  Co  v.  Sweeting,  10  Wend. 
162.  In  Maine,  the  court  seems  to  have  held  the  witness  admissible  in  all  cases, 
where  the  party  objecting  to  the  witness  is  himself  a  party  to  the  agreement  by  which 
his  interest  is  acquired.     Burgess  v,  Lane,  3  Greenl.  165,  170;  supra,  107. 

6  Winship  v.  Bank  of  United  States,  5  Peters,  529,  552. 
■^  HoviU  V.  Stephenson,  5  Bing.  493  ;  supra,  §  167. 


554  LAW   OP   EVIDENCE.  [PART   III. 

which  the  surrenderee  or  releasee,  even  though  he  be  a  stranger, 
refuses  to  accept,  the  principle  of  the  rule  of  exclusion  no  longer 
applies,  and  the  witness  is  held  admissible.  Thus,  in  an  eject- 
ment, where  the  lessors  of  the  plaintiff  claimed  under  a  will, 
against  the  heir  at  law,  and  the  executor  was  called  by  the  plain- 
tiff to  prove  the  sanity  of  the  testator,  and  was  objected  to  by  the 
defendant,  because  by  the  same  will  he  was  devisee  of  the  rever- 
sion of  certain  copyhold  lands,  to  obviate  which  objection  he  had 
surrendered  his  estate  in  the  copyhold  lands  to  the  use  of  the  heir 
at  law,  but  the  heir  had  refused  to  accept  the  surrender, —  the  court 
held  him  a  competent  witness.*  So,  if  the  interest  may  be  re- 
moved by  the  release  of  one  of  the  parties  in  the  suit,  and  such 
party  offers  to  remove  it,  but  the  witness  refuses,  he  cannot 
thereby  deprive  the  party  of  his  testimony.  ^ 

§  420.  Equal  interest  for  both  parties  no  disqualification.  Where 
the  witness,  though  interested  in  the  event  of  the  cause,  is  so 
situated  that  the  event  is  to  him  a  matter  of  indifference,  he  is 
still  a  competent  witness.  This  arises  where  he  is  equally  inter- 
ested on  both  sides  of  the  cause,  so  that  his  interest  on  one  side  is 
counterbalanced  by  his  interest  on  the  other.  ^  But  if  there  is  a 
preponderance  in  the  amount  or  value  of  the  interest  on  one  side, 
this  seems,  as  we  have  already  seen,  to  render  him  an  interested 
witness  to  the  amount  of  the  excess,  and  therefore  to  disqualify 
him  from  testifying  on  that  side.^  Whether  the  circumstance 
that  the  witness  has  a  remedy  over  against  another,  to  indemnify 
hira  for  what  he  may  lose  by  a  judgment  against  the  party  calling 
him,  is  sufficient  to  render  him  competent  by  equalizing  his  in- 
terest, is  not  clearly  agreed.  Where  his  liability  to  costs  appears 
from  his  own  testimony  alone,  and  in  the  same  mode  it  is  shown 
that  he  has  funds  in  his  hands  to  meet  the  charge,  it  is  settled 
that  this  does  not  render  him  incompetent.^  So,  where  he  stated 
that  he  was  indemnified  for  the  costs,  and  considered  that  he  had 
ample  security.  *     And  where,  upon  this  objection  being  taken  to 

8  Goodtitle  v.  Welford,  1  Doug.  139  ;  5  T.  R.  35,  per  Buller,  J.  The  legatee  in  a 
will,  who  has  been  paid,  is  considered  a  competeut  witness  to  support  the  will  in  a  suit 
at  law.     Wyndham  v.  Chetwynd,  1  Burr.  414. 

9  1  Phil.  Evid.  149. 

1  Supra,  §  399.  See  also  Ciishman  v.  Loker,  2  Mass.  108  ;  Emerson  v.  Providence 
Hat  Manuf.  Co.,  12  Mass.  237  ;  Roberts  v.  Whiting,  16  Mass.  186  ;  Rice  i'.  Austin, 
17  Mass.  197;  Prince  v.  Shepard,  9  Pick.  176  ;  Lewis  v.  Hodgdoii,  5  Sliepl.  267. 

2  Supra,  §§  391,  399,  and  cases  there  cited.  Where  the  interest  of  the  witness  is 
prima  facie  balanced  between  the  parties,  the  possibility  of  a  better  defence  against 
one  than  the  other  will  not  prevent  his  being  sworn.  Starkweather  v.  Mathews,  2 
Hill,  131. 

3  Collins  V.  Crummen,  3  Martin,  n.  s.  166;  Allen  r.  Hawks,  13  Pick.  79. 

*  Chatfee  v.  Thomas,  7  Co  wen,  358  ;  contra,  Pond  v.  Hartwell,  17  Pick.  272,  per 
Shaw,  C.  J. 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  655 

the  witness,  the  party  calling  him  forthwith  executed  a  bond  to 
the  adverse  party,  for  the  payment  of  all  costs,  with  sureties, 
whom  the  counsel  for  the  obligee  admitted  to  be  abundantly  re- 
sponsible, but  at  the  same  time  he  refused  to  receive  the  bond,  the 
court  held  the  competency  of  the  witness  to  be  thereby  restored ; 
observing,  however,  that  if  the  solvency  of  the  sureties  had  been 
denied,  it  might  have  presented  a  case  of  more  embarrassment,  it 
being  very  questionable  whether  the  judge  could  determine  upon 
the  sufficiency  of  the  obligors  so  as  to  absolve  the  witness  from 
liability  to  costs. ^  The  point  upon  which  the  authorities  seem  to 
be  conflicting  is  where  there  is  merely  a  right  of  action  over,  irre- 
spective of  the  solvency  of  the  party  liable ;  the  productiveness  of 
the  remedy,  in  actual  satisfaction,  being  wholly  cohtingent  and 
uncertain.  But  in  such  cases  the  weight  of  authority  is  against 
the  admissibility  of  the  witness.  Thus,  in  an  action  against  the 
sheriff  for  taking  goods,  his  officer,  who  made  the  levy,  being 
called  as  a  witness  for  the  defence,  stated  upon  the  voir  dire  that 
he  gave  security  to  the  sheriff,  and  added  that  he  was  indemni- 
fied by  the  creditor,  meaning  that  he  had  his  bond  of  indemnity. 
But  Lord  Tenterden  held  him  not  a  competent  witness ;  observ- 
ing that  if  the  result  of  the  action  were  against  the  sheriff,  the 
witness  was  liable  to  a  certainty,  and  he  might  never  get  repaid 
on  his  indemnity;  therefore  it  was  his  interest  to  defeat  the 
action.^  So,  where  the  money  with  which  the  surety  in  a  re- 
plevin bond  was  to  be  indemnified,  had  been  deposited  in  the 
hands  of  a  receiver  designated  by  the  judge,  it  was  held  that  this 
did  not  restore  the  competency  of  the  surety  as  a  witness  in  the 
cause  for  the  principal ;  for  the  receiver  might  refuse  to  pay  it 
over,  or  become  insolvent,  or,  from  some  other  cause,  the  remedy 
over  against  him  might  be  unproductive.''  The  true  distinction 
lies  between  the  case  where  the  witness  must  resort  to  an  action 
for  his  indemnity,  and  that  in  which  the  money  is  either  subject 
to  the  order  of  the  court,  and  within  its  actual  control  and  cus- 
tody, or  is  in  the  witness's  own  hands.  Therefore  it  has  been 
laid  down  by  a  learned  judge,  that  where  a  certain  sum  of  money 
can  be  so  placed,  either  with  the  witness  himself  or  with  the  court 

5  Brandigee  v.  Hale,  13  Johns,  125  ;  s.  p.  Lake  v.  Auburn,  17  Wend.  18  ;  siqn-a, 
§  392. 

6  Whitehouse  v.  Atkinson,  3  C.  &  P.  344  ;  Jewett  v.  Adams,  8  Greenl.  30  ;  Paine 
V.  Hussey,  5  Shepl.  274. 

■?  Wallace  v.  Twymaii,  3  J.  J.  Marsh.  459-461.  See  also  Owen  v.  Mann,  2  Day,  399, 
404  ;  Brown  v.  Lynch,  1  Paige,  147.  157  ;  Allen  v.  Hawks,  13  Pick.  85,  per  Shaw, 
C.  J.  ;  Schillinger  v.  McCann,  6  Greenl.  364  ;  Kendall  v.  Field,  2  Shepl.  30  ;  Shelby 
V.  Smith,  2  A.  K.  Marsh.  504.  The  cases  in  which  a  mere  remedy  over  seems  to  have 
been  thouglit  sufficient  to  equalize  the  interest  of  the  witness,  are  Martineau  v.  Wood- 
land, 2  C.  &  P.  65  ;  Banks  v.  Kain,  Id.  597  ;  Gregory  v.  Dodge,  14  Wend.  693. 


556  LAW    OP    EVIDENCE.  [PART   III. 

and  its  oflicers,  under  a  proper  rule  directing  and  controlling  its 
application  according  to  the  event,  as  that  the  interest  creating 
the  disability  may  be  met  and  extinguished  before  the  witness  is 
or  can  be  damnified,  it  shall  be  considered  as  balancing  or  ex- 
tinguishing that  interest,  so  as  to  restore  the  competency  of  the 
witness.^ 

§  421.  Objection  on  account  of  interest.  In  regard  to  the  time 
of  taking  the  objection  to  the  competency  of  a  witness,  on  the 
ground  of  interest,  it  is  obvious  that,  from  the  preliminary  nature 
of  the  objection,  it  ought  in  general  to  be  taken  before  the  wit- 
ness is  examined  in  chief.  If  the  party  is  aware  of  the  existence 
of  the  interest,  he  will  not  be  permitted  to  examine  the  witness, 
and  afterwards  to  object  to  his  competency  if  he  should  dislike 
his  testimony.  He  has  his  election,  to  admit  an  interested  per- 
son to  testify  against  him  or  not;  but  in  this,  as  in  all  other 
cases,  the  election  must  be  made  as  soon  as  the  opportunity  to 
make  it  is  presented ;  and  failing  to  make  it  at  that  time,  he  is 
presumed  to  have  waived  it  for  ever.  ^  But  he  is  not  prevented 
from  taking  the  objection  at  any  time  during  the  trial,  provided 
it  is  taken  as  soon  as  the  interest  is  discovered.  2  Thus,  if  dis- 
covered during  the  examination  in  chief  by  the  plaintiff,  it  is  not 
too  late  for  the  defendant  to  take  the  objection.  ^  But  if  it  is  not 
discovered  until  after  the  trial  is  concluded,  a  new  trial  will  not, 
for  that  cause  alone,  be  granted ;  ^  unless  the  interest  was  known 
and  concealed  by  the  party  producing  the  witness.  ^  The  rule  on 
this  subject,  in  criminal  and  civil  cases,  is  the  same.^  Formerly, 
it  was  deemed  necessary  to  take  the  objection  to  the  competency 
of  a  witness  on  the  voir  dire  ;  and  if  once  sworn  in  chief,  he  could 
not  afterwards  be  objected  to,  on  the  ground  of  interest.  But  the 
strictness  of  this  rule  is  relaxed ;  and  the  objection  is  now  usually 
taken  after  he  Is  sworn  in  chief,  but  previous  to  his  direct  ex- 
amination It  is  in  the  discretion  of  the  judge  to  permit  the  ad- 
verse party  to  cross-examine  the  witness,  as  to  his  interest,  after 
he  has  been  examined  in  chief ;  but  the  usual  course  is  not  to  allow 

8  Pond  V.  Hartwell,  17  Pick.  269,  272,  per  Shaw,  C.  J. 

1  Donelson  v.  Tavlor,  8  Pick.  390,  392;  Belcher  v.  Mapnay,  1  New  Pr.  Cas.  110. 

2  Stone  i;.  Blackburn,  1  Esp.  37  ;  1  Stark.  Evid.  124  ;  Shurtleff  v.  WiUanl,  19  Pick. 
202  ;  Monfort  v.  Rowland,  38  N.  J.  Eq.  183.  Where  a  party  has  been  fully  apprised 
of  the  grounds  of  a  witness's  incompetency  by  the  opening  speech  of  counsel,  or  the 
examination  in  chief  of  the  witness,  doubts  have  been  entertained  at  Nisi  Prius,  whether 
an  objection  to  the  competency  of  a  witness  can  be  postponed.     1  Phil.  Evid.  154,  n.  (3). 

3  Jacobs  V.  Lay  born,  11  M.  &  W.  685.  And  see  Yardley  v.  Arnold,  10  M.  &  W. 
141;  6  Jur.  718. 

*  Turner  v.  Pearte,  1  T.  R.  717  ;  Jackson  v.  Jackson,  5  Cowen,  173. 

6  Niles  V.  Brackett,  15  Mass.  378. 

6  Commonwealth  v.  Green,  17  Mass.  538 ;  Roscoe's  Grim.  Evid.  124. 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  55T 

questions  to  be  asked  upon  the  cross-examination,  which  properly 
belonf^  only  to  an  examination  upon  the  voir  dire.'  But  if,  not- 
withstanding every  ineffectual  endeavor  to  exclude  the  witness  on 
the  ground  of  incompetency,  it  afterwards  should  appear  inci- 
dentally, in  the  course  of  the  trial,  that  the  witness  is  iiitei-ested, 
his  testimony  will  be  stricken  out,  and  the  jury  will  be  instructed 
wholly  to  disregard  it.^  The  rule  in  equity  is  the  same  as  at  law ;  ^ 
and  the  princi})le  applies  with  equal  force  to  testimony  given  in 
a  deposition  in  writing,  and  to  an  oral  examination  in  court.  In 
either  case,  the  better  opinion  seems  to  be,  that  if  the  objection  is 
taken  as  soon  as  may  be  after  the  interest  is  discovered,  it  will  be 
heard ;  but  after  the  party  is  in  mora,  it  comes  too  late.  ^"^  One 
reason  for  requiring  the  objection  to  be  made  thus  early  is,  that 
the  other  party  may  have  opportunity  to  remove  it  by  a  release; 
which  is  always  allowed  to  be  done,  when  the  objection  is  taken 
at  any  time  before  the  examination  is  completed.  ^^  It  is  also  to 
be  noted  as  a  rule,  applicable  to  all  objections  to  the  reception  of 

^  Howell  V.  Lock,  2  Campb.  14  ;  Odiorne  v.  Winkley,  2  Gallis.  51  ;  Perigal  v. 
Nicholson,  1  Wightw.  64.  The  objection  that  the  witness  is  the  real  plaintiff,  ought 
to  be  taken  on  the  voir  dire.  Dewdney  v.  Palmer,  4  M.  &  W.  664  ;  s.  c.  7  Dowl. 
177. 

8  Davis  V.  Barr,  9  S.  &  R.  137  ;  Schillinger  v.  MeCann,  6  Greenl.  364  ;  Fisher  v. 
Willaril,  13  Mass.  379  ;  Evans  v.  Eaton,  1  Peters,  C.  C.  338  ;  Butler  v.  Tufts,  1  Shepl. 
302  ;  Stout  V.  Wood,  1  Blackf.  71 ;  Mitchell  v.  Mitchell,  11  G.  &  J.  388.  The  same 
rule  seems  applicable  to  all  the  instruments  of  evidence,  whether  oral  or  written.  Scrib- 
iier  V.  McLaughlin,  1  Allen,  N.  B.  379  ;  and  see  Swift  v.  Dean,  6  Johns.  523,  536  ; 
Perigal  v.  Nicholson,  Wightw.  63  ;  Howell  v.  Lock,  2  Campb.  64  ;  Needham  t).  Smith, 
2  Vern.  464.  In  one  case,  however,  where  the  examination  of  a  witness  was  con- 
cluded, and  he  was  dismissed  from  the  box,  but  was  afterwards  recalled  by  the  judge, 
for  the  purpose  of  asking  him  a  question,  it  was  ruled  by  Gibbs,  C.  J.,  that  it  was  then 
too  late  to  object  to  his  competency.  Beeehing  v.  Gower,  1  Holt's  Cas.  313  ;  and  see 
Heely  v.  Barnes,  4  Denio,  73.  And  in  chancery  it  is  held,  that  where  a  witness  has 
been  cross-examined  by  a  party,  with  full  knowledge  of  an  objection  to  his  competency, 
the  court  will  not  allow  the  objection  to  be  taken  at  the  hearing.  Flagg  v.  Maun, 
2  Sumn.  487. 

9  Swift  V.  Dean,  6  Johns.  523,  533  ;  Needham  v.  Smith,  2  Vern.  463  ;  Vaughan  v. 
Worral,  2  Swanst.  400.  In  this  case,  Lord  Eldon  said,  that  no  attention  could  be 
given  to  the  evidence,  though  the  interest  were  not  discovered  until  the  last  ciuestion, 
after  he  has  been  "cross-examined  to  the  bone."  See  Gresley  on  Evid.  234-236; 
Rogers  v.  Dibble,  3  Paige,  238  ;  Town  v.  Needham,  Id.  545,  552  ;  Harrison  v.  Court- 
auld,  1  Russ.  &  M.  428  ;  Moorhouse  v.  De  Passon,  G.  Cooper,  Ch.  Cas.  300  ;  s.  c.  19 
Ves.  433.     See  also  Jacobs  v.  Laybourn,  7  Jur.  562. 

10  Donelson  v.  Taylor,  8  Pick.  390.  Where  the  testimony  is  by  deposition,  the  ob- 
jection, if  the  interest  is  known,  ought  regularly  to  be  taken  in  limine;  and  the 
cross-examination  should  be  made  de  bene  esse,  under  protest,  or  with  an  express 
reservation  of  the  right  of  objection  at  the  trial ;  unless  the  interest  of  the  witness  is 
developed  incidentally,  in  his  testimony  to  the  merits.  But  the  practice  on  this  point 
admits  of  considerable  latitude,  in  the  discretion  of  the  judge.  United  States  v.  One 
Case  of  Hair  Pencils,  1  Paine,  400  ;  Talbot  v.  Clark,  8  'Pick.  51  ;  Smith  v.  Sparrow, 
11  Jur.  126  ;  Mohawk  Bank  v.  Atwater,  2  Paige,  54  ;  Ogle  v.  Paleski,  1  Holt's  Cas. 
485  ;  2  Tidd's  Pr.  812.  As  to  the  mode  of  taking  the  objection  in  chancery,  see  1 
Hoffm.  Chan.  489  ;  Gass  v.  Stinson,  3  Sumn.  605. 

11  Tallman  v.  Dutcher,  7  Wend.  180  ;  Doty  v.  Wilson,  14  Johns.  378  ;  Wake  v. 
Lock,  5  0.  &  P.  454. 


558  LAW   OF   EVIDENCE.  [PART  III. 

evidence,  that  the  ground  of  objection  must  be  distinctly  stated 
at  the  time,  or  it  will  be  held  vague  and  nugatory.  ^^ 

§  422.  Same  subject.  Where  the  objection  to  the  competency 
of  the  witness  arises  from  his  own  examination^  he  may  be  further 
interrogated  to  facts  tending  to  remove  the  objection,  though  the 
testimony  might,  on  other  grounds,  be  inadmissible.  When  the 
whole  ground  of  the  objection  comes  from  himself  only,  what  he 
says  must  be  taken  together  as  he  says  it.^  Thus,  where  his  in- 
terest appears,  from  his  own  testimony,  to  arise  from  a  written 
instrument,  which  is  not  produced,  he  may  also  testif}'  to  the  con- 
tents of  it ;  but  if  he  produces  the  instrument,  it  must  speak  for 
itself.  2  So,  where  the  witness  for  a  chartered  company  stated 
that  he  had  been  a  member,  he  was  permitted  also  to  testify 
that  he  had  subsequently  been  disfranchised.  ^  So,  where  a  wit- 
ness called  by  an  administrator  testified  that  he  was  one  of  the 
heirs  at  law,  he  was  also  permitted  to  testify  that  he  had  released 
all  his  interest  in  the  estate.*  And,  generally,  a  witness  upon 
an  examination  in  court  as  to  his  interest  may  testify  to  the  con- 
tents of  any  contracts,  records,  or  documents  not  produced,  affect- 
ing the  question  of  his  interest.^  But  if  the  testimony  of  the 
witness  is  taken  upon  interrogatories  in  writing,  previously  filed 
and  served  on  the  adverse  party,  who  objects  to  his  competency 
on  the  ground  of  interest,  which  the  witness  confesses,  but  testi- 
fies that  it  has  been  released ;  the  release  must  be  produced  at  the 
trial,  that  the  court  may  judge  of  it.^ 

§  423.  Proof  of  interest.  The  mode  of  proving  the  interest  of  a 
witness  is  either  by  his  own  examination,  or  by  evidence  aliunde. 
But  whether  the  election  of  one  of  these  modes  will  preclude  the 
party  from  afterwards  resorting  to  the  other  is  not  clearly  settled 
l3y  the  authorities.  If  the  evidence  offered  aliunde  to  prove  the 
interest  is  rejected  as  inadmissible,  the  witness  may  then  be  ex- 

12  Camden  v.  Doremus,  3  Howard,  S.  C.  515,  530  ;  Elwood  v.  Deifendorf,  5  Barb. 
S.  C.  398  ;  Carr  v.  Daveis,  337. 

1  Abrahams  v.  Bunn,  4  Burr.  2256,  per  Ld.  Mansfield  ;  Bank  of  Utica  v.  Mersereau, 
3  Barb.  Ch.  528. 

2  Butler  V.  Carver,  2  Stark.  433.     See  also  Rex  v.  Gisbum,  15  East,  57. 

*  Butchers'  Company  v.  Jones,  1  Esp.  160.  And  see  Botham  v.  Swingler,  Peake's 
Cas.  218. 

4  Ingram  v.  Dada,  Lond.  Sittings  after  Mich.  T.  1817  ;  1  C.  &  P.  234,  n.  ;  AVand- 
less  V.  Cawthorne,  B.  R.  Guildhall,  1829  ;  1  M.  &  M.  321,  n. 

5  Miller  v.  Mariner's  Church,  7  Greenl.  51;  Fifield  v.  Smith,  8  Shepl.  383  ;  Sewell 
V.  Stubbs,  1  C.  &  P.  73  ;  Quarterman  v.  Cox,  8  C.  &  P.  97  ;  Lunniss  v.  Row,  2  P.  & 
D.  538  ;  Hays  v.  Richardson,  1  Gill  &  J.  366  ;  Stebbins  v.  Sackett,  5  Conn.  258  ;  Bax- 
ter V.  Rodman,  3  Pick.  435.  The  case  of  Goodhay  v.  Hendry,  1  M.  &  M.  319,  appar- 
ently contra,  is  opposed  by  Carlisle  v.  Eady,  1  C.  &  P.  234,  and  by  Wandless  v.  Caw- 
thome,  1  M.  &  M.  321,  n. 

6  Southard  v.  Wilson,  8  Shepl.  494  ;  Hobart  v.  Bartlett,  5  Shepl.  429. 


CHAP.    II.]  COMPETENCY    OF   WITNESSES.  559 

amined  on  the  voir  dire.^  And  if  the  witness  on  the  voir  dire 
states  that  he  does  not  know,  or  leaves  it  doubtful  whether  he  is 
interested  or  not,  his  interest  may  be  shown  by  other  evidence.^ 
It  has  also  been  held,  that  a  resort  to  one  of  these  modes  to  prove 
the  interest  of  the  witness  on  one  ground  does  not  preclude  a  re- 
sort to  the  other  mode,  to  prove  the  interest  on  another  ground.^ 
And  where  the  objection  to  the  competency  of  the  witness  is 
founded  upon  the  evidence  already  adduced  by  the  party  offering 
him,  this  has  been  adjudged  not  to  be  such  an  election  of  the  mode 
of  proof,  as  to  preclude  the  objector  from  the  right  to  examine  the 
witness  on  the  voir  dire.^  But,  subject  to  these  modifications, 
the  rule  recognized  and  adopted  by  the  general  current  of  authori- 
ties is,  that  where  the  objecting  party  has  undertaken  to  prove  the 
interest  of  the  witness,  by  interrogating  him  upon  the  voir  dire, 
he  shall  not,  upon  failure  of  that  mode,  resort  to  the  other  to  prove 
facts,  the  existence  of  which  was  known  when  the  witness  was 
interrogated.^  The  party  appealing  to  the  conscience  of  the  wit- 
ness, offers  him  to  the  court  as  a  credible  witness ;  and  it  is  con- 
trary to  the  spirit  of  the  law  of  evidence  to  permit  him  afterwards 
to  say,  that  the  witness  is  not  worthy  to  be  believed.  It  would 
also  violate  another  rule,  by  its  tendency  to  raise  collateral  issues. 
Nor  is  it  deemed  reasonable  to  permit  a  party  to  sport  with  the 

1  Main  v.  Newson,  Anthon's  Cas.  18.  But  a  witness  cannot  be  excluded  by  proof 
of  his  own  admission  that  he  was  interested  in  the  suit.  Bates  v.  Ryland,  6  Alabama, 
668  ;  Pierce  v.  Chase,  8  Mass.  487,  488  ;  Commonwealth  v.  Waite,  5  Mass.  261  ;  George 
V.  Stubbs,  13  Shepl,  243. 

2  Shannon  v.  Commonwealth,  8  S.  &  E.  444  ;  Galbraith  v.  Galbraith,  6  Watts,  112  ; 
Bank  of  Columbia  v.  Magruder,  6  Har.  &  J.  172. 

3  Stebbins  v.  Sackett,  5  Conn.  258. 

*  Bridge  v.  Wellington,  1  Mass.  221,  222. 

5  In  the  old  books,  including  the  earlier  editions  of  Mr.  Starkie's  and  Mr.  Phillips's 
Treatise  on  Evidence,  the  rule  is  clearly  laid  down,  that,  after  an  examination  upon  the 
voir  dire,  no  other  mode  of  proof  can  in  any  case  be  resorted  to  ;  excepting  only  the 
case  where  the  interest  was  developed  in  the  course  of  trial  of  the  issue.  But  in  the 
last  editions  of  those  works,  it  is  said,  that,  "  if  the  witness  discharged  himself  on  the 
voir  dire,  the  party  who  objects  may  still  support  his  objection  by  evidence  ;  "  but  no 
authority  is  cited  for  the  position,  1  Stark.  Evid,  124;  Phil.  &  Am.  on  Evid.  149  ; 
1  Phil.  Evid.  154.  Mr.  Starkie  had  previously  added  these  words  :  "  as  part  of  his 
own  case"  (see  2  Stark.  Evid.  p.  756,  1st  ed.)  ;  and  with  this  qualification  the  re- 
mark is  supported  by  authority,  and  is  correct  in  principle.  The  question  of  compe- 
tency is  a  collateral  question  ;  and  the  rule  is,  that  when  a  witness  is  asked  a  question 
iipon  a  collateral  point,  his  answer  is  final,  and  cannot  be  contradicted  :  that  is,  no 
collateral  evidence  is  admissible  for  that  purpose.  Harris  v.  Tippett,  2  Campb.  637  ; 
Piiiladelphia  &  Trenton  Co.  v.  Stirapson,  14  Peters,  448,  461  ;  Harris  v.  Wilson,  7 
Wend.  57  ;  Odiorne  v.  Winkley,  2  Gallis.  53  ;  Eex  v.  Watson,  2  Stark.  149-157.  But 
if  the  evidence,  subsequently  given  upon  the  matter  in  issue,  should  also  prove  the 
witness  interested,  his  testimony  may  well  be  stricken  out,  without  violating  any  rule; 
Brockbank  v.  Anderson,  7  M.  &  G.  295,  313.  The  American  courts  have  followed  the 
old  English  rule,  as  stated  in  the  text.  Butler  v.  Butler,  3  Day,  214  ;  Stebbins  v. 
Sackett,  5  Conn.  258,  261  ;  Chance  v.  Hine,  6  Conn.  231  ;  Welden  v.  Buck,  Anthon's 
Cas.  15  ;  Chatfield  v.  Lathrop,  6  Pick.  418  ;  Evans  u.  Eaton,  1  Peters,  C.  C.  322  ;  Stuart 
».  Lake,  33  Maine,  87. 


560  LAW   OF   EVIDENCE.  [PART   III. 

conscience  of  a  witness,  when  he  has  other  proof  of  his  interest. 
But  if  evidence  of  his  interest  has  been  given  aliunde,  it  is  not 
proper  to  examine  the  witness,  in  order  to  explain  it  away.'' 

§  424.  Examination  upon  the  voir  dire.  A  witness  is  said  to  be 
examined  upon  the  voir  dire,  when  he  is  sworn  and  examined  as 
to  the  fact  whether  he  is  not  a  party  interested  in  the  causeJ 
And  though  this  term  was  formerly  and  more  strictly  applied  only 
to  the  case  where  the  witness  was  sworn  to  make  true  answers  to 
such  questions  as  the  court  might  put  to  him,  and  before  he  was 
sworn  in  chief,  yet  it  is  now  extended  to  the  preliminary  exami- 
nation to  his  interest,  whatever  may  have  been  the  form  of  the 
oath  under  which  the  inquiry  is  made. 

§  425.  Question  of  interest  preliminary  and  for  the  court.  The 
question  of  interest,  though  involving  facts,  is  still  a  preliminary 
question,  preceding,  in  its  nature,  the  admission  of  the  testimony 
to  the  jury.  It  is  therefore  to  be  determined  by  the  court  alone, 
it  being  the  province  of  the  judge  and  not  of  the  jury,  in  the  first 
instance,  to  pass  upon  its  efficiency.^  If,  however,  the  question 
of  fact,  in  any  preliminary  inquiry, —  such,  for  instance,  as  the 
proof  of  an  instrument  by  subscribing  witnesses, —  is  decided  by 
the  judge,  and  the  same  question  of  fact  afterwards  recurs  in  the 
course  of  the  trial  upon  the  merits,  the  jury  are  not  precluded  by 
the  decision  of  the  judge,  but  may,  if  they  are  satisfied  upon  the 
evidence,  find  the  fact  the  other  way.^  In  determining  the  ques- 
tion of  interest,  where  the  evidence  is  derived  aliunde,  and  it  de- 
pends upon  the  decision  of  intricate  questions  of  fact,  the  judge 
may,  in  his  discretion,  take  the  opinion  of  the  jury  upon  them.^ 
And  if  a  witness,  being  examined  on  the  voir  dire,  testifies  to 
facts  tending  to  prove  that  he  is  not  interested,  and  is  thereupon 
admitted  to  testify ;  after  which  opposing  evidence  is  introduced, 
to  the  same  facts,  which  are  thus  left  in  doubt,  and  the  facts  are 
material  to  the  issue,  —  the  evidence  must  be  weighed  by  the  jury, 
and  if  they  thereupon  believe  the  witness  to  be  interested,  they 
must  lay  his  testimony  out  of  the  case.^ 

§  426.  Disqualification  removed  by  a  release.  The  competency 
of  a  witness,  disqualified  by  interest,  may  always  be  restored  by 
a  proper  release.^     If  it  consists  in  an  interest  vested  in  himself, 

6  Mott  V.  Hicks,  1  Cowen,  513  ;  Evan  v.  Gray,  1  Martin,  N.  s.  709. 

^  Termes  de  la  Lej',  Verb.  Voye.r  dire.  And  see  Jacobs  v.  Layborn,  11  M.  &  W. 
685,  where  the  nature  and  use  of  an  examination  upon  the  voir  dire  are  stated  and  ex- 
plained by  Ld.  Abinger,  C.  B. 

1  Harris  v.  Wilson,  7  "Wend.  57  ;  mpra,  §  49. 

2  Ross  V.  Gould,  5  Greenl.  204.  '  See  supra,  §  49. 

*  Walker  v.  Sawyer,  13  N.  H.  191. 

*  Where  the  witness  produces  the  release  from  his  own  possession,  as  part  of  bis 


CHAP.    II.]  COMPETENCY    OF    WITNESSES.  561 

he  may  divest  himself  of  it  l>y  a  release,  or  othor  proper  convey- 
ance. If  it  consists  in  a  liability  over,  whether  to  the  party  call- 
ing him,  or  to  another  person,  it  may  be  released  by  the  person 
to  whom  he  is  liable.  A  general  release  of  all  actions  and  causes 
of  action  for  any  matter  or  thing,  which  has  happened  previous  to 
the  date  of  the  release,  will  discharge  the  witness  from  all  lia- 
bility consequent  upon  the  event  of  a  suit  then  existing.  Such  a 
release  from  the  drawer  to  the  acceptor  of  a  bill  of  exchange  was 
therefore  held  sufficient  to  render  him  a  competent  witness  for  the 
drawer,  in  an  action  then  pending  by  the  payee  against  him ;  for 
the  transaction  was  already  passed,  which  was  to  lay  the  founda- 
tion of  the  future  liability ;  and  upon  all  such  transactions  and 
inchoate  rights  such  a  release  will  operate. ^  A  release,  to  qualify 
a  witness,  must  be  given  before  the  testimony  is  closed,  or  it 
comes  too  late.  But  if  the  trial  is  not  over,  the  court  will  per- 
mit the  witness  to  be  re-examined,  after  he  is  released ;  and  it  will 
generally  be  sufficient  to  ask  him  if  his  testimony,  already  given, 
is  true;  the  circumstances  under  which  it  has  been  given  going 
only  to  the  credibility. ^ 

§  427.  Who  must  release.  As  to  the  person  hy  whom  the  release 
should  be  given,  it  is  obvious  that  it  must  be  by  the  party  holding 
the  interest  to  be  released,  or  by  some  person  duly  authorized  in 
his  behalf.  A  release  of  a  bond  debt  by  one  of  several  obligees, 
or  to  one  of  several  obligors,  will  operate  as  to  them  all.  ^  So, 
where  several  had  agreed  to  bear  the  expense  of  a  joint  undertak- 
ing, in  preferring  a  petition  to  Parliament,  and  an  action  was 
brought  against  one  of  them,  another  of  the  contractors  was  held 
a  competent  witness  for  the  defendant,  after  being  released  by 
him;  for  the  event  of  the  suit  could  at  most  only  render  him 


testimony,  in  answer  to  a  question  put  to  him,  its  execution  needs  not  to  be  proved  liy 
the  subscribing  witnesses  ;  but  it  is  to  be  taken  as  a  part  of  liis  testimony.  If  the 
question  is  asked  by  the  party  calling  the  witness,  who  thereupon  produces  the  release, 
the  party  is  estopped  to  deny  that  it  is  a  valid  and  true  release.  Bat  where  the 
release  is  produced  or  set  up  by  the  party  to  the  suit,  to  establish  his  own  title,  he 
must  prove  its  execution  by  the  subscribing  witness.  Citizens'  Bank  v.  Nantucket 
Steamboat  Co.,  2  Story,  16,  42.  And  see  Moises  v.  Thornton,  8  T.  R.  303;  Jackson 
V.  Pratt,  10  Johns.  381  ;  Carlisle  v.  Eady.  1  0.  &  P.  234  ;  Ingram  v.  Dada,  Id.  n.  ; 
Goodhay  v.  Hendrv,  1  M.  &  M.  319.  See  also  Southard  v.  Wilson,  8  Shepl.  494  ; 
Hdl  V.  Steamboat  Co.,  13  Conn.  319. 

2  Scott  V.  Litford,  1  Campb.  249,  250  ;  Cartwright  v.  Williams,  2  Stark.  340. 

3  Wake  V.  Lock,  5  C.  &  P.  454  ;  Tallnian  v.  Dutcher,  7  Wend.  180  ;  Doty  v.  Wilson, 
14  Johns.  378.     And  see  Clark  v.  Carter,  4  Moore,  207. 

'  Co.  Lit.  232  a;  Cheetham  v.  Ward,  1  B.  &  P.  630.  So,  by  one  of  several  part- 
ners, or  joint  proprietors,  or  owners.  Whitamore  v.  Waterhouse,  4  C.  &  P.  383  ; 
Hockle.ss  V.  Mitchell,  4  Esp.  86  ;  Bulkley  v.  Dayton,  14  Johns.  387  ;  Haley  v.  Godfrey, 
4  Shepl.  305.  But  where  the  interest  of  the  parties  to  the  record  is  several,  a  release 
by  one  of  them  only  is  not  .sufficient.  Betts  v.  Jones,  9  C.  &  P.  199. 
VOL.  I.  —  36 


562  LAW   OF   EVIDENCE.  [PART   III. 

liable  to  the  defendant  for  his  contributory  share. '-^  But  if  there 
is  a  joint  fund  or  property  to  be  directly  affected  by  the  result, 
the  same  reason  would  not  decisively  apply;  and  some  act  of 
divestment,  on  the  part  of  the  witness  himself,  would  be  neces- 
sary.^ Thus,  in  an  action  on  a  charter-party,  a  joint-owner  with 
the  plaintiff,  though  not  a  registered  owner,  is  not  a  competent 
witness  for  the  plaintiff,  unless  cross-releases  are  executed  be- 
tween them.*  A  release  by  an  infant  is  generally  sufficient  for 
this  purpose ;  for  it  may  be  only  voidable,  and  not  void ;  in  which 
case,  a  stranger  shall  not  object  to  it.^  But  a  release  by  a  guar- 
dian ad  litem,^  or  by  aprocliein  amy,  or  by  an  attorney  of  record,' 
is  not  good.  A  surety  may  always  render  the  principal  a  com- 
petent witness  for  himself,  by  a  release.^  And  it  seems  sufficient, 
if  only  the  costs  are  released.^ 

§  428.  Interests  not  removed  by  a  release.  Though  there  are  no 
interests  of  a  disqualifying  nature  but  what  may,  in  some  man- 
ner, be  annihilated,^  yet  there  are  some  which  cannot  be  reached 
hy  a  release.  Such  is  the  case  of  one  having  a  common  right,  as 
an  inhabitant  of  a  town ;  for  a  release  by  him,  to  the  other  in- 
habitants, will  not  render  him  a  competent  witness  for  one  of 
them,  to  maintain  the  common  right. ^  So  where,  in  trover,  the 
plaintiff  claimed  the  chattel  by  purchase  from  B.,  and  the  defen- 

2  Duke  V.  Pownall,  1  M.  &  Malk.  430  ;  Ransom  v.  Keyes,  9  Covven,  128.  So,  in 
other  cases  of  liability  to  contribution.  IJavley  v.  Osborn,  2  Wend.  527  ;  Robertson  v. 
Smith,  18  Johns.  459  ;  Gibbs  v.  Bryant,  I'Piek.  118  ;  Ames  v.  Withington,  3  N.  H. 
115  ;  Carleton  v.  Whitcher,  5  N.  H.  196.  One  of  several  copartners,  not  being  sued 
■with  them,  may  be  rendered  a  competent  witness  for  them  by  their  release.  Lefierts 
V.  De  Mott,  21  Wend.  136  (scd  vide  Cline  v.  Little,  5  Blackf.  486)  ;  but  g wave,  if  he 
ought  not  also  to  release  to  them  his  interest  in  tiie  assets  of  the  firm,  so  far  as  they 
may  be  affected  by  the  demand  in  controversy.     lb. 

3  Waite  V.  Merrill,  4  Greenl.  102  ;  Richardson  v.  Freeman,  6  Greenl.  57  ;  1  Holt's 
Cas.  430,  n.  ;  Anderson  v.  Brock,  3  Greenl.  243.  The  heir  is  rendered  a  competent 
witness  for  the  administrator,  by  releasing  to  the  latter  all  his  interest  in  the  action  : 
provided  it  does  not  appear,  that  there  is  any  real  estate  to  be  affected  by  the  result. 
Boynton  v.  Turner,  13  Mass.  391. 

*  Jackson  v.  Galloway,  8  C.  &  P.  480. 

6  Rogers  v.  Berry,  10  Johns^  132  ;  Walker  v.  Ferrin,  4  Vt.  523. 

®  Fraser  v.  Mar.sh,  2  Stark.  41  ;  Walker  v.  Ferrin,  uh.  sup. 

"^  Murray  r>.  House,  11  Johns.  464  ;  Walker  v.  Ferrin,  iib.  sup. 

^  Reed  v.  Boardman,  20  Pick.  441  ;  Harmon  v.  Arthur,  1  Bail.  83  ;  Willard  v. 
Wickham,  7  Watts,  292. 

9  Ferryman  v.  Steggall,  5  C.  &  P.  197.  See  also  Van  Sh^ack  v.  Stafford,  12  Pick. 
565. 

^  In  a  writ  of  entry  by  a  mortgagee,  the  tenant  claimed  under  a  deed  from  the  mort- 
gagor, subsequent  in  date,  but  prior  in  registration,  and  denied  notice  of  the  mortgage. 
To  prove  that  he  purchased  with  notice,  the  mortgagor  was  admitted  a  competent  wit- 
ness for  the  mortgagee,  the  latter  having  released  him  from  so  much  of  the  debt  as 
should  not  be  satisfied  by  tha  land  mortgaged,  and  covenanted  to  resort  to  the  land  as 
the  sole  fund  for  payment  of  the  debt.     Howard  v.  Chadbourne,  5  Greenl.  15. 

2  Jacobson  v.  Fountain,  2  Johns.  170  ;  Abby  v.  Goodrich,  3  Day,  433  ;  suprn, 
§405. 


CHAP.    II.]  COMPETENCY   OF   WITNESSES.  563 

dant  claimed  it  under  a  purchase  from  W.,  who  had  previously 
bought  it  from  B.,  it  was  held  that  a  release  to  B.  from  the  de- 
fendant would  not  render  him  a  competent  witness  for  the  latter ; 
for  the  defendant's  remedy  was  not  against  B.,  but  against  W. 
alone. ^  And  in  the  case  of  a  covenant  real,  running  with  the 
land,  a  release  by  the  covenantee,  after  he  has  parted  with  the 
estate,  is  of  no  avail ;  no  person  but  the  present  owner  being  com- 
petent to  release  it.*  Where  the  action  is  against  the  surety  of 
one  who  has  since  become  bankrupt,  the  bankrupt  is  not  rendered 
a  competent  witness  for  the  surety,  by  a  release  from  him  alone; 
because  a  judgment  against  the  surety  would  still  give  him  a  right 
to  prove  under  the  commission.  The  surety  ought  also  to  release 
the  assignees  from  all  claim  on  the  bankrupt's  estate,  it  being 
vested  in  them;  and  the  bankrupt  should  release  his  claim  to  the 
surplus.^  So,  a  residuary  legatee  is  not  rendered  a  competent 
witness  for  the  executor,  who  sues  to  recover  a  debt  due  to  the 
testator,  merely  by  releasing  to  the  executor  his  claim  to  that 
debt;  for,  if  the  action  fails,  the  estate  will  still  be  liable  for  the 
costs  to  the  plaintiff's  attorney,  or  to  the  executor.  The  witness 
must  also  release  the  residue  of  the  estate;  or,  the  estate  must 
be  released  from  all  claim  for  the  costs. ^ 

§  429.  Delivery  of  release  not  necessary.  It  is  not  necessary 
that  the  release  be  actually  delivered  by  the  releasor  into  the 
hands  of  the  releasee.  It  may  be  deposited  in  court,  for  the  use 
of  the  absent  party.  ^  Or,  it  may  be  delivered  to  the  wife,  for  the 
use  of  the  husband. 2  But  in  such  cases  it  has  been  held  neces- 
sary that  the  delivery  of  the  release  to  a  third  person  should  be 
known  to  the  witness  at  the  time  of  giving  his  testimony,  ^  The 
ol:)jection  of  interest,  as  before  remarked,  proceeds  on  the  pre- 
sumption that  it  may  bias  the  mind  of  the  witness;  but  this  pre- 
sumption is  taken  away  by  proof  of  his  having  done  all  in  his 
power  to  get  rid  of  the  interest.*  It  has  even  been  held,  that 
where  the  defendant  has  suffered  an  interested  witness  to  be  ex- 
amined, on  the  undertaking  of  the  plaintiff's  attorney  to  execute 

1     8  Radburn  v.  Morris,  4  Bing.  649. 

*  Leighton  v.  Perkins,  2  N.  H.  427;  Pile  v.  Benham,  3  Hayw.  176. 
6  Perryman  v.  Steggall,  8  Bing,  3G9. 
6  Baker  v.  Tyrwhitt,  4  Canipb.  27. 

1  Perry  v.  Fleming,  2  N.  C.  Law  Kepos.  458  ;  Lily  v.  Kit^miller,  1  Yeates,  30  ; 
Matthews  v.  Marchant,  3  Dev.  &  Bat.  40  ;  Brown  v.  Brown,  5  Ala.  508.  Or,  it  may 
be  delivered  to  the  attorney.     Stevenson  v.  Mudgett,  10  N.  H.  338. 

2  Van  Deusen  v.  Frink,  15  Pick.  449  ;  Peaceable  v.  Keep,  1  Yeates,  576. 

3  Seymour  v.  Strong,  4  Hill,  255.  Whether  the  belief  of  the  witness  as  to  his 
interest,  or  the  impression  under  which  he  testifies,  can  go  further  than  to  effect  the 
credibility  of  his  testimonv,  qurcre  ;  and  see  suprn,  §§  387,  388,  419. 

4  Goodtitle  v.  Welford,"l  Doug.  139,  141,  per  Asliiiurst,  J. 


664  LAW    OP    EVIDENCE.  {[PART    III. 

a  release  to  him  after  the  trial,  which,  after  a  verdict  for  the 
plaintiff,  he  refused  to  execute,  this  was  no  sufficient  cause  for 
a  new  trial;  for  the  witness  had  a  remedy  on  the  undertaking.^ 
But  the  witness,  in  such  cases,  will  not  be  permitted  to  proceed 
with  his  testimony,  even  while  the  attorney  is  preparing  or  amend- 
ing the  release,  without  the  consent  of  the  adverse  party.  ^ 

§  430.  Other  modes  of  restoring  competency.  There  are  other 
modes^  besides  a  release,  in  which  the  competency  of  an  inter- 
ested witness  may  be  restored.  Some  of  those  modes,  to  be 
adopted  by  the  witness  himself,  have  already  been  adverted  to;i 
namely,  where  he  has  assigned  his  own  interest,  or  done  all  in  his 
power  to  assign  it ;  or,  where  he  refuses  to  accept  a  release  ten- 
dered to  him  by  another.  So,  where,  being  a  legatee  or  distribu- 
tee, he  has  been  fully  paid.-  An  indorser  is  made  a  competent 
witness  for  the  indorsee,  by  striking  off  his  name  from  the  back 
of  the  note  or  bill ;  but  if  the  bill  is  drawn  in  sets,  it  must  appear 
that  his  name  is  erased  from  each  one  of  the  set,  even  though 
one  of  them  is  missing  and  is  supposed  to  be  lost;  for  it  may  be 
in  the  hands  of  a  bona  fide  holder.  ^  A  guarantor,  also,  is  ren- 
dered a  competent  witness  for  the  creditor,  by  delivering  up  the 
letter  of  guaranty,  with  permission  to  destroy  it.*  And  this  may 
be  done  by  the  attorney  of  the  party,  his  relation  as  such  and  the 
possession  of  the  paper  being  sufficient  to  justify  a  presumption 
of  authority  for  that  purpose.^  The  bail  or  surety  of  another  may 
be  rendered  a  competent  witness  for  him,  as  we  have  already  seen, 
by  substituting  another  person  in  his  stead ;  which,  where  the  stipu- 
lation is  entered  into  in  any  judicial  proceeding,  as  in  the  case  of 
bail,  and  the  like,  the  court  will  order  upon  motion.  The  same 
may  be  done  by  depositing  in  court  a  sufficient  sum  of  money;  or, 
in  the  case  of  bail,  by  a  surrender  of  the  body  of  the  principal.^ 
So,  where  the  liability,  which  would  have  rendered  the  witness 
incompetent,  is  discharged  by  the  operation  of  law;  as,  for  ex- 
ample, by  the  bankrupt  or  the  insolvent  laws,  or  by  the  statute  of 
limitations.^     Where,  in  trespass,   several  justifications  are  set 

5  Hemming  v.  English,  1  Cr.  M.  &  R.  568  ;  s.  c.  5  Tyrwh.  185. 

6  Doty  V.  Wilson,  14  Johns.  378.  ^  Siqyra,  §  419. 

2  Clarke  v.  Gannon,  Ry.  &  M.  31  ;  Gehhart  ».  Shindle,  15  S.  &  R.  235. 

^  Steinmetz  v.  Currey,  1  Dall.  234. 

*  Merchants'  Bank  v.  Spicer,  6  Wend.  443. 

s  Ibid.  ;  Watson  v.  McLaren,  189  Wend.  557. 

6  Supra,  §  392,  n.  (1) ;  Bailey  v.  Hole,  3  C.  &  P.  560  ;  s.  c.  1  Mood.  &  M.  289  ; 
Leggett  V.  Boyd,  3  Wend,  376  ;  Tompkins  v.  Curtis,  3  Cowen,  251  ;  Grey  v.  Young, 
1  Harper,  38;  Allen  v.  Hawks,  13  Pick.  79;  Beckley  v.  Freeman,  15  Pick.  468; 
Pearcey  v.  Fleming,  5  C.  &  P.  503  ;  Lees  v.  Smith,  1  M.  &  Rob.  329  ;  Comstock  i-. 
Paie,  3  Rob.  (La.)  440  ;  Fraser  v.  Harding,  3  Kerr,  94. 

^  Murray  V.  Judah,   6  Cowen,  484;  Ludlow  v.  Union  Ins.  Co.,  2    S.   &  R.   119; 


CHAP,    II.]  COMPETENCY    OF   WITNESSES.  665 

up  in  bar,  one  of  which  is  a  prescriptive  or  customary  right  in  all 
the  inhabitants  of  a  certain  place,  one  of  those  inhabitants  may 
be  rendered  a  competent  witness  for  the  defendant,  by  his  waiv- 
ing that  branch  of  the  defence. ^  In  trover  by  a  bailee,  he  may 
render  the  bailor  a  competent  witness  for  him,  by  agreeing  to 
allow  him,  at  all  events,  a  certain  sum  for  the  goods  lost.^  The 
assignee  of  a  chose  in  action,  who,  having  commenced  a  suit  upon 
it  in  the  name  of  the  assignor,  has  afterwards  sold  and  trans- 
ferred his  own  interest  to  a  stranger,  is  thereby  rendered  a  com- 
petent witness  for  the  plaintiff,  i*^  But  the  interest  which  an 
informer  has  in  a  statute  penalty  is  held  not  assignable  for  that 
purpose.  11  So,  the  interest  of  a  legatee  being  assigned,  he  is 
thereby  rendered  competent  to  prove  the  will ;  though  the  pay- 
ment is  only  secured  to  him  by  bond  which  is  not  yet  due.i^  So, 
a  stockholder  in  any  money-corporation  may  be  rendered  a  com- 
petent witness  for  the  corporation,  by  a  transfer  of  his  stock, 
either  to  the  company  or  to  a  stranger ;  even  though  he  intends  to 
repossess  it,  and  has  assigned  it  merely  to  qualify  himself  to  tes- 
tify; provided  there  is  no  agreement  between  him  and  the  as- 
signee or  purchaser  for  a  reconveyance.  ^^  Where  a  witness  was 
liable  to  the  plaintiff's  attorney  for  the  costs,  and  the  attorney 
had  prepared  a  release,  in  order  to  restore  his  competency  in  case 
it  should  be  questioned,  but,  no  objection  being  made  to  the  wit- 
ness, he  was  examined  for  the  plaintiff  without  a  release,  this 
was  considered  as  a  gross  imposition  upon  the  court ;  and  in  a 
subsequent  action  by  the  attorney  against  the  witness,  for  his 
costs,  he  was  nonsuited. "  These  examples  are  deemed  sufficient 
for  the  purpose  of  illustrating  this  method  of  restoring  the  com- 
petency of  a  witness  disqualified  by  interest. 

United  States  v.  Smith,  4  Day,  121  ;  Quimby  v.  Wroth,  3  H.  &  J.  249;  Murray  v. 
Marsh,  2  Hayw.  290. 

8  Prewit  V.  Tilly,  1  C.  &  P.  140. 

"  Maine  Stage  Co.  v.  Longley,  2  Shepl.  444. 
i»  Souldeii  V.  Van  Rensselaer,  9  Wend.  293. 

11  Commonwealth  v.  Hargesheimer,  1  Ashm.  413. 

12  Mellroy  v.  Mcllroy,  1  Rawle,  433. 

13  Gilbert  v.  Manchester  Iron  Co.,  11  Wend.  627;  Utica  Ins.  Co.  v.  Cadwell,  3 
Wend.  296  ;  Stall  *;.  Catskill  Bank,  18  Wend.  466  ;  Bank  of  Utica  v.  Smalley,  2 
Cowen,  770  ;  Bell  v.  Hull,  &o.  Railway  Co.,  6  M.  &  W.  701  ;  Illinois  Ins.  Co.  v.  Mar- 
seilK's  Co.,  1  Gilm.  236  ;  Union  Bank  v.  Owen,  4  Humph.  338. 

14  Williams  v.  Goodwin,  11  Moore,  342. 


566  LAW    OF    EVIDENCE.  [PART    III. 


CHAPTER   HI. 

*  OP   THE    EXAMINATION    OF   WITNESSES. 

§  431.  Examination  of  witnesses.  Having  thus  treated  of  the 
means  of  procuring  the  attendance  of  witnesses,  and  of  their  com- 
petency, we  come  now  to  consider  the  manner  in  which  they  are 
to  be  examined.  And,  here,  in  the  first  place,  it  is  to  be  observed, 
that  the  subject  lies  chiefly  in  the  discretion  of  the  judge,  before 
whom  the  cause  is  tried,  it  being  from  its  very  nature  susceptible 
of  but  few  positive  and  stringent  rules.  The  great  object  is  to 
elicit  the  truth  from  the  witness ;  but  the  character,  intelligence, 
moral  courage,  bias,  memory,  and  other  circumstances  of  wit- 
nesses are  so  various,  as  to  require  almost  equal  variety  in  the  man- 
ner of  interrogation,  and  the  degree  of  its  intensity,  to  attain  that 
end.  This  manner  and  degree,  therefore,  as  well  as  the  other 
circumstances  of  the  trial,  must  necessarily  be  left  somewhat  at 
large,  subject  to  the  few  general  rules  which  we  shall  proceed  to 
state;  remarking  only,  that  wherever  any  matter  is  left  to  the 
discretion  of  one  judge,  his  decision  is  not  subject  to  be  reversed 
or  revised  by  another. 

§  432.  Whether  separately,  a  matter  of  discretion  with  the  court. 
If  the  judge  deems  it  essential  to  the  discovery  of  truth,  that  the 
witnesses  should  be  examined  out  of  the  hearing  of  each  other,  he 
will  so  order  it.  This  order,  upon  the  motion  or  suggestion  of 
either  party,  is  rarely  withheld ;  but,  by  the  weight  of  authority, 
the  party  does  not  seem  entitled  to  it  as  a  matter  of  right.  H«) 

1  In  Rex  V.  Cook,  13  Howell,  St.  Tr.  348,  it  was  declared  by  Lord  C.  J.  Treby  to 
be  grantable  of  favor  only,  at  the  discretion  of  the  court,  and  this  opinion  was  followed 

(a)  Penniman  v.  Hill,  24  W.  R.  245  ;  son,  1  F.  &  F.  194  ;  Charnock  v.  Dewings, 
Nelson  V.  State,  2  Swan  (Tenn.),  237  ;  3  C.  &  K.  378)  ;  y.-t  in  Penniman  v.  Hill, 
Benaway  v.  Conyne,  3  Chand.  214  ;  Mc-  supra,  it  was  said  that  the  court  might. 
Guff  V.  State,  88  Ala.  147  ;  Of.  Heath  v.  in  its  discretion,  order  even  the  party  to 
State  7  Tex;.  App.  464.  The  court  will  withdraw.  Cf.  Ryan  v.  Couch,  66  Ala. 
not  direct  a  witness,  who  is  also  a  party,  244.  The  court,  after  ruling  that  the 
to  withdraw  while  affidavits  are  being  read,  witnesses  shall  be  excluded  from  the  court- 
when  he  may  have  seen  the  affidavits  pre-  room  excei)t  the  one  under  examination, 
viously,  because  the  precaution  would  be  may  in  its  discretion  permit  exceptions  to 
useless.  Penniman  v.  Hill,  supra.  Gen-  the  rule  and  allow  some  of  the  witnesses 
erally  speaking,  a  party,  who  is  also  a  to  remain  in  the  court-room.  Riley  v. 
witness,  may  remain  in  court  and  need  not  State,  88  Ala.  193  ;  Barnes  v.  State,  88 
withdraw  with  the  others  (Selfe  v.  Isaac-  Ala.  204. 


CHAP.    III.]  EXAMINATION    OP   WITNESSES.  567 

The  course  in  such  cases  is  either  to  require  the  names  of  the 
witnesses  to  be  stated  by  the  counsel  of  the  respective  j)arties,  by 
whom  they  were  summoned,  and  to  direct  the  sheriff  to  keep 
them  in  a  separate  room  until  they  are  called  for;  or,  more  usu- 
ally, to  cause  them  to  withdraw,  by  an  order  from  the  bench, 
accompanied  with  notice,  that  if  they  remain  they  will  not  be 
examined.  In  the  latter  case,  if  a  witness  remains  in  court  in 
violation  of  the  order  even  by  mistake,  it  is  in  the  discretion  of 
the  judge  whether  or  not  he  shall  be  examined.^ (i)  The  course 
formerly  was  to  exclude  him ;  and  this  is  still  the  inflexible  rule 
in  the  exchequer  in  revenue  cases,  in  order  to  prevent  any  impu- 
tation of  unfairness  in  proceedings  between  the  crown  and  the 
subject.     But  with  this  exception,  the  rule  in  criminal  and  civil 

by  Lord  C.  J.  Holt,  in  Rex  v.  Vaughan,  Id.  494,  and  by  Sir  Michael  Foster,  in  Rex  v. 
Goodere,  17  Howell,  St.  Tr.  1015.  See  also  1  Staik.  Evid.  163  ;  Beainon  v.  EUice,  4 
C.  &  P.  585,  per  Taunton,  J.  ;  State  v.  Sparrow,  3  Murphy,  487.  The  rule  is  stated 
by  Fortescue,  in  these  words:  "  Et  si  necessitas  exe.>(erit,  dividantur  testes  hujusuiodi, 
donee  ijisi  deposuerint  quicquid  velint,  ita  quod  dictum  uuius  noii  docebit  aut  conci- 
tabit  eorum  alium  ad  consiiiiiliter  testificandum."  Fortesc.  De  Laud.  Leg.  Augl.  c.  26. 
This,  however,  does  not  necessarily  exclude  the  right  of  the  court  to  determine  whether 
there  is  any  need  of  a  separate  examination.  Mr.  Piiillips  states  it  only  as  the  uniform 
course  of  practice,  that  ''the  court,  on  the  ajjidicaiion  of  counsel,  will  order  the  wit- 
nesses on  both  sides  to  witlidraw."  2  Phil.  Evid.  395.  And  see,  accordingly,  Williams 
I'.  Hulie,  1  Sid.  131  ;  Swift  on  Evid.  512.  Hi  Taylor  v.  Lawson,  3  C.  &  P.  543,  Best, 
C.  J.,  regretted  tliut  the  rule  of  parliamentary  y»ractice,  which  excludes  all  witnesses  but 
the  one  under  examination,  was  not  universally  ado])ted.  But  in  Southey  v.  Nash,  7 
C.  &  P.  632,  Alder.son,  B.,  expressly  recognized  it  as  "the  right  of  either  party,  at 
any  moment,  to  retjuire  that  the  unexamined  witnesses  shall  leave  the  court."  It  is  a 
general  rule  in  the  Scotch  law,  that  witnesses  should  be  examined  separately  ;  and  it  is 
founded  on  the  importance  of  having  the  story  of  each  witness  fresh  from  his  own  recol- 
lection, unmingli'd  with  the  impression  received  from  hearing  the  testimony  of  others 
in  the  same  case.  To  this  rule,  an  exception  is  allowed  in  the  case  of  medical  wit- 
nesses ;  but  even  those,  on  matters  of  jnedical  opinion,  are  examined  apart  from  each 
other.     See  Alison's  Practice,  pp.  542-545  ;  Tait  on  Evid.  420. 

"  It  has,  however,  been  held,  that,  if  the  witness  remains  in  court,  in  disobedience 
of  its  order,  his  testimony  cannot,  on  that  ground  alone,  be  excluded  ;  but  that  it  is 
matter  for  observation  on  his  evidence.  Cliandler  v.  Home,  2  M.  &  Rob.  423.  As  to 
the  rule  in  the  text,  see  State  v.  Brookshire,  2  Ala.  303,  ace. 

(6)  Peoples.  Sam  Lung,  70  Cal.  516;  recting  a  separation  of  witnesses,  the  party 
Hey  V.  Com.,  32  Graft.  (Va.),  946  ;  Cob-  shall  not  be  denied  the  right  of  having  the 
bett  V.  Hudson,  1  E.  &  B.  14.  It  has  witness  testify,  but  the  conduct  of  the  wit- 
even  been  said  to  be  error  to  exclude  a  ness  may  go  to  the  jury  upon  the  question 
witness  for  such  a  cause.  Hubbard  v.  of  his  credibility.  And  in  Vermont,  it  is 
Hubbard,  7  Greg.  42.  Cf.  Smith  v.  State,  held  that  the  witness  is  not  thereby  ren- 
4  Lea  (Tenn.),  428.  It  has  been  decided  dered  incompetent,  but  may  be  proceeded 
in  three  cases  in  Indiana,  that  where  the  against  for  contemjit.  State  v.  Ward,  61 
party  is  entirely  free  from  fault,  the  testi-  Vt.  179;  State  v.  Hopkins,  50  Vt.  316  ; 
mony  of  a  witness  who  disobeys  an  order  State  v.  Lockwood,  58  Vt.  378  ;  and  in 
of  the  court  cannot  be  excluded.  Davis  Georgia  it  has  been  held  that  if  a  witness 
V.  Byrd,  94  Ind.  525  ;  Burk  v.  Andis,  98  remains  in  the  court-room,  under  the  rule, 
Ind.  59  ;  State  v.  Thomas,  111  Ind.  516.  he  is  not  thereby  rendered  incompetent, 
In  the  first  of  these  cases  the  true  rule  is  but  may  be  proceeded  against  for  con- 
sai(l  to  be  that  where  a  party  is  without  tempt.  Lassiter  v.  State,  67  Georgia,  739. 
fault,  and  a  witness  disobeys  an  order  di- 


568  LAW    OF    EVIDENCE.  [PART    III. 

cases  is  the  same.''(6')  But  an  attorney  in  the  cause,  whose  per- 
sonal attendance  in  court  is  necessary,  is  usually  excepted  from 
the  order  to  withdraw.'*  The  right  of  excluding  witnesses  for 
disobedience  to  such  an  order,  though  well  established,  is  rarelv 
exercised  in  America ;  ^  (c?)  but  the  witness  is  punishable  for  the 
contempt. 

§  433,  Direct  examination.  When  a  witness  has  been  dulv 
sworn,  and  his  competency  is  settled,  if  objected  to,^  he  is  first 
examined  by  the  party  producing  him;  which  is  called  his  direct 
examination.  He  is  afterwards  examined  to  the  same  matters  by 
the  adverse  party ;  which  is  called  his  cross-examination.  These 
examinations  are  conducted  orally  in  open  court,  under  the  regu- 
lation and  order  of  the  judge,  and  in  his  presence  and  that  of  the 
jur}^,  and  of  the  parties  and  their  counsel. 

§  434.  Leading  questions  not  permissible.  In  the  direct  exami- 
nation of  a  witness,  it  is  not  allowed  to  put  to  him  what  are 
termed  leading  questions ;  that  is,  questions  which  suggest  to  the 
witness  the  answer  desired.  ^  The  rule  is  to  be  understood  in  a 
reasonable  sense ;  for  if  it  were  not  allowed  to  approach  the  points 
at  issue  by  such  questions,  the  examinations  would  be  most  in- 
conveniently protracted.  To  abridge  the  proceedings,  and  bring 
the  witness  as  soon  as  possible  to  the  material  points  on  which  he 
is  to  speak,  the  counsel  may  lead  him  on  to  that  length,  and  may 
recapitulate  to  him  the  acknowledged  facts  of  the  case  which  have 
been  already  established.  The  rule,  therefore,  is  not  applied  to 
that  part  of  the  examination,  which  is  merely  introductory  of  that 
which  is  material,  (a)  Questions  are  also  objectionable,  as  lead- 
ing, which,  embodying  a  material  fact,  admit  of  an  answer  by  a 

2  Attorney-General  v.  Bulju't,  9  Price,  4  ;  Parker  v.  Mc William,  6  Bing.  683  ;  s.  c. 
4  Moore  &  Payne,  480  ;  Thomas  v.  David,  7  C.  &  P.  350  ;  Rex  v.  CoUey,  1  M.  &  Malk. 
329  ;  Beamon  v.  Elliee,  4  C.  &  P.  585,  and  n.  b. 

*  Everett  v.  Lowdham,  5  C.  &  P.  91  ;  Pomeroy  v.  Baddeley,  Ry.  &  M.  430. 

5  See  Anon.,  1  Hill,  S.  C.  254,  '256;  State  v.  Sparrow,  3  Murph.  487  ;  State  v. 
Brookshire,  2  Ala.  303  ;  Dyer  v.  Morris,  4  Mo.  214  ;  Keith  v.  Wilson,  6  Mo.  435. 

6  The  course  in  the  Scotch  courts,  after  a  witness  is  sworn,  is,  first,  to  examine  him 
in  initialibus,  —  namely,  whether  he  has  been  instiucted  what  to  say,  or  has  received 
or  has  been  promised  any  good  deed  for  what  he  is  to  say,  or  bears  any  ill-will  to  the 
adverse  party,  or  has  any  interest  in  the  cause  or  concern  in  conducting  it ;  together 
with  his  age,  and  whether  he  is  mariied  or  not,  and  the  degree  of  his  relationship  to 
the  party  adducing  him.     Tait  on  Evid.  424. 

1  Snyder  v.  Snyder,  6  Binn.  483  ;  Harrison  v.  Rowan,  3  Washingt.  580  •  Parkin  v. 
Moon,  7  C.  &  P.  408  ;  Alison's  Practice,  545  ;  Tait  on  Evid.  427. 

(c)  McLean  v.  State,  16  Ala.  672.  State,  65  Ga.  330  ;  Betts  v.  State,  66  Ga. 

{d)  Pleasant   v.   State,   15  Ark.    624  ;  508. 
Sartorious  v.   State,   24  Miss.    602  ;   Por-  (a)  Shultz  v.  State,  5  Tex.  App.   390  ; 

ter    V.     State,    2    Ind.     435  ;     Rooks   v.  Lowe  v.  Lowe,  40  Iowa,  220. 


CHAP.    111. J  EXAMINATION    OF   WITNESSES.  569 

simple  negative  or  affirmative,  (b)  An  argumentative  or  pregnant 
course  of  interrogation  is  as  faulty  as  the  like  course  in  pleading. 
The  interrogatory  must  not  assume  facts  to  have  been  proved, 
which  have  not  been  proved;  nor,  that  particular  answers  have 
been  given,  which  have  not  been  given.2(t')  The  witness,  except 
in  certain  cases  hereafter  to  be  mentioned,  is  to  be  examined  only 
to  matters  of  fact  within  his  own  knowledge,  whether  they  con- 
sist of  words  or  actions ;  and  to  these  matters  he  should  in  gen- 
eral be  plainly,  directly,  and  distinctly  interrogated.  Inferences 
or  conclusions,  which  may  be  drawn  from  facts,  are  ordinarily  to 
be  drawn  by  the  jury  alone ;  except  where  the  conclusion  is  an 
inference  of  skill  and  judgment ;  in  which  case  it  may  be  drawn 
by  an  expert,  and  testified  by  him  to  the  jury.^ 

§  435.  Exceptions.  In  some  cases,  however,  leading  questions 
are  permitted,  even  in  a  direct  examination, —  namely,  where  the 
witness  appears  to  be  hostile  to  the  party  producing  him,  or  in 
the  interest  of  the  other  party,  or  unwilling  to  give  evidence  ;^  (a) 
or  where  an  omission  in  his  testimony  is  evidently  caused  b}'  want 
of  recollection^  which  a  suggestion  may  assist,  {b)  Thus,  where 
the  witness  stated,  that  he  could  not  recollect  the  names  of  the 
component  members  of  a  firm,  so  as  to  repeat  them  without  sug- 
gestion, but  thought  he  might  possibly  recollect  them  if  suggested 
to  him,  this  was  permitted  to  be  done.^  So,  where  the  transac- 
tion involves  numerous  items  or  dates.  So,  where,  from  the 
nature  of  the  case,  the  mind  of  the  witness  cannot  be  directed  to 
the  subject  of  inquiry,  without  a  particular  specification  of  it ;  as, 

2  Hill  V.  Coombe,  1  Stark.  Evid.  163,  n.  qq  ;  Haiidley  v.  Ward,  Id.  ;  Turney  v. 
State,  8  Sill.  &  Marsh.  104. 

8  1  Stark.  Evid.  152  ;  Goodtitle  d.  Revett  v.  Braliam,  4  T.  R.  497. 

1  Clarke  v.  Satfery,  Ry.  &  M.  126,  per  Best,  C.  J.  ;  Rec;.  v.  Chapman,  8  C.  &  P. 
558  ;  Reg.  v.  Ball,  Id.  745  ;  Reg.  v.  Murphy,  Id.  297  ;  Bank  of  North.  Liberties  v. 
Davis,  6  Watts  &  Serg.  285  ;  Towns  v.  Alford,  2  Ala.  378.  Leading  questions  are  not 
allowed  in  Scotland,  even  in  cross-examining.  Tail  on  Evid.  427  ,  Alison's  Practice, 
545. 

2  Acerro  tt  al.  v.  Petroni,  1  Stark.  100,  per  Ld.  EUenborough. 

(&)  But  not  unless  they  suggest  which  Co.,  1  F.  &  F.  505.     The  rules  regulating 

answer  is  the  desired  one.     Spear  v.  Rich-  the  examination  of  witnesses  are  applicable 

ardson,  37  N.  H.  26.    A  question  so  framed  oidy  to  the  examination  of  the  witness  by 

in  the  alternative  as  to  suggest  the  desired  the  counsel  of  the  party  who  calls  him 

answer  is  leading.     State  v.  Johnson,  29  and  in  whose  favor  his  testimony  is  prob- 

La.  An.  717.     See  also  Wilson  v.  McCul-  ably  intended  ;  the  presiding  judge  may  of 

lough,  23  Pa.  St.  440  ;  Kemmerer  v.  Edel-  course  interrogate  the  witness  in  any  form 

man.  Id.  143.  and  to  any  extent  he  may  deem  important 

(c)  Carpenter  V.  Ambroson,  20  111.  170.  to  the  ends  of  justice.     Com.  r.  Galavan, 

(a)  State  v.  Benner,  64  Me.  267  ;  Brad-  9  Allen  (Mass. ),  271. 
shaw  V.   Combs,  102    111.   428  ;    Doran  v.  (b)  Cf.   O'Hagan  v.  Dillon,  76   N.  Y. 

Mullen,  78  III.  342  ;  McBride  v.  Wallace,  170. 
62  Mich.  453  ;  Martin  v.  Travellers'  Ins. 


570  LAW   OF    EVIDENCE.  [PART   III. 

where  he  is  called  to  contradict  another,  as  to  the  contents  of  a 
letter,  which  is  lost,  and  cannot,  without  suggestion,  recollect  all 
its  contents,  the  particular  passage  may  be  suggested  to  him.^ 
So,  where  a  witness  is  called  to  contradict  another,  who  had 
stated,  that  such  and  such  expressions  were  used,  or  the  like, 
counsel  are  sometimes  permitted  to  ask,  whether  those  particular 
expressions  were  used,  or  those  things  said,  instead  of  asking  the 
witness  to  state  what  was  said.*  (c)  Where  the  witness  stands  in 
a  situation,  which  of  necessity  makes  him  adverse  to  the  party 
calling  him,  as,  for  example,  on  the  trial  of  an  issue  out  of  chan- 
cerv,  with  power  to  the  plaintiff  to  examine  the  defendant  him- 
self as  a  witness,  he  may  be  cross-examined,  as  a  matter  of  right. ^ 
Indeed,  when  and  under  what  circumstances  a  leading  question 
may  be  put,  is  a  matter  resting  in  the  sound  discretion  of  the 
court,  and  not  a  matter  which  can  be  assigned  for  error. ^  {d) 

§  436.  "Witness  may  assist  his  memory.  Though  a  witness  can 
testify  only  to  such  facts  as  are  within  his  own  knowledge  and 
recollection,  yet  he  is  permitted  to  refresh  and  assist  his  memory, 
hy  the  use  of  a  written  instrument,   memorandum,  or  entry  in  a 

3  Courteen  v.  Touse,  1  Campb.  43  ;  Edmonds  v.  Walter,  3  Stark.  7. 

*  1  Stark.  Evid.  152.  Mr.  Phillips  is  of  opinion  that  the  regular  mode  should 
first  be  exhausted  in  such  cases,  before  leading  questions  are  resorted  to.  Phil.  &  Am. 
on  Evid.  pp.  890,  891  ;  2  Phil.  Evid.  404,  405. 

s  Clarke  v.  Saffery,  Ry.  &  M.  126.  The  policy  of  these  rules,  as  well  as  of  almost 
all  other  rules  of  the  common  law  on  the  subject  of  evidence,  is  controverted  in  the 
Rationale  of  Judicial  Evidence,  by  Jeremy  Bentham,  —  "  a  learned  writer  who  has 
devoted  too  much  of  his  time  to  the  theory  of  jurisprudence,  to  know  much  of  the 
practical  consequences  of  the  doctrines  he  has  published  to  the  world."  Per  Best, 
C.  J.,  in  Hovill  v.  Stephenson,  5  Bing.  493. 

6  Moody  V.  Rowell,  17  Pick.  498.  In  this  case  the  law  on  this  point  was  thus  stated 
by  the  learned  Chief  Justice  :  "  The  court  liave  no  doubt  that  it  is  within  the  discretion 
of  a  judge  at  the  trial,  under  particular  circumstances,  to  permit  a  leading  (piestion  to 
be  put  to  one's  own  witness  ;  as  when  he  is  manifestly  reluctant  and  hostile  to  the 
interest  of  the  party  calling  him,  or  where  he  has  exhausted  his  memory,  without 
stating  the  particular  required,  where  it  is  a  proper  name,  or  other  fact  which  cannot 
be  significantly  pointed  to  by  a  general  interrogatory,  or  where  the  witness  is  a  child  of 
tender  years,  whose  attention  can  be  called  to  the  matter  required,  only  by  a  pointed  or 
leading  question.  So  a  judge  may,  in  his  discretion,  prohibit  certain  leading  (juestions 
from  being  put  to  an  adversary's  witness,  where  the  witness  shows  a  strong  interest  or 
bias  in  favor  of  the  cross-examining  party,  and  needs  only  an  intimation,  to  say  whatever 
is  most  favorable  to  that  party.  The  witness  may  have  purposely  concealed  such  bias 
in  favor  of  one  party,  to  induce  the  other  to  call  him  and  make  him  his  witness;  or  the 
party  calling  him  may  be  compelled  to  do  so,  to  prove  some  single  fact  necessary  to  his 
case.  This  discretionarv  power  to  vary  the  general  rule  is  to  be  exercised  only  so  far  as 
the  purposes  of  justice  plainly  require  it,  and  is  to  be  regulated  by  the  circumstances  of 
each  case."     And  see  Donnell  v.  Jones,  13  Ala.  490. 

(c)  Farmers'  Mut.  Fire  Ins.  Co.  v.  48  N.  H.  491;  Com.  w.  Chaney,  148  Mass. 
Bair,  87   Pa.  St.   124.  8.     Yet  if  this  discretion  is  shown  to  have 

(d)  Ohlsen  v.  Terrero,  L.  R.  10  Ch.  127,  been  plainly  misused  and  a  substantial  in- 
44  L.  J.  Ch.  155  ;  Lawder  v.  Lawder,  5  jury  done  to  a  party,  an  exception  might 
Ir.  C.  L.  K.  27  ;  Walker  v.  Uonspaugh,  20  be  taken.  Gunter  v.  Watson,  4  Jones 
N,  Y.  170;  Wells  v.   Jackson,    &,c.    Co.,  (N.  C),  L.  455. 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.  671 

book,  and  may  be  compelled  to  do  so,  if  the  writin;^^  is  present  in 
court.  i(6<)  It  does  not  seem  to  be  necessary  that  the  writin<»- 
should  have  been  made  by  the  witness  himself,  nor  that  it  should 
be  an  original  writing,  provided,  after  inspecting  it,  he  can  speak 
to  the  facts  from  his  own  recollection.  ^  (A)  So,  also,  where  the 
witness  recollects  that  he  saw  the  paper  while  the  facts  were  fresh 
in  his  memory,  and  remembers  that  he  then  knew  that  the  par- 
ticulars therein  mentioned  were  correctly  stated.'^  (c)  And  it  is 
not  necessary  that  the  writing  thus  used  to  refresh  the  memory 
should  itself  be  admissible  in  evidence;  for  if  inadmissible  in 
itself,  as  for  want  of  a  stamp,  it  may  still  be  referred  to  by  the 

1  Reed  v.  Boaidman,  20  Pick.  441. 

2  Doe  V.  Perkins,  3  T.  R.  749,  expounded  in  Rex  v.  St.  Martin's,  Leicester,  2  Ad. 
&  El.  215;  Burton  v.  Pliiminer,  Id.  341;  Burrough  v.  Martin,  2  Campb.  112  ;  Duchess 
of  Kingston's  Case,  20  Howell's  St.  Tr.  619;  Henry  v.  Lee,  2  Cliitty,  124;  Rambert  v. 
Cohen,  4  Esp.  213.  In  Meagoe  v.  Simmons,  3  C.  &  P.  75,  Lord  Tenterden  observed, 
that  the  usual  course  was  not  to  permit  the  witness  to  refresh  his  memory  from  any 
paper  not  of  his  own  writing.  And  so  is  the  Scotch  practice.  Tait  on  Evid.  133.  But 
a  witness  has  been  allowed  to  refresh  his  memory  from  the  notes  of  his  testimony,  taken 
by  counsel  at  a  former  trial.  Lawes  v.  Reed,  2  Lewin,  Cr.  Gas.  152.  And  i'rom  his 
deposition.  Smith  v.  Morgan,  2  M.  &  Rob.  259.  And  from  a  printed  copy  of  his 
report.  Home  v.  Mackenzie,  6  CI.  &  Fin.  628.  And  from  notes  of  another  jjcrson's 
evidence,  at  a  former  trial,  examined  by  him  during  that  trial.  Reg.  v.  Philpotts,  5 
Cox,  Cr.  C.  329.  Or,  within  two  days  afterwards.  lb.,  per  Erie,  J.  But  the  counsel 
for  the  prisoner,  on  cross-examining  a  witness  for  the  prosecution,  is  not  entitled  to  put 
the  deposition  of  the  witness  into  his  hand,  for  the  purpose  of  refreshing  his  memory, 
without  giving  it  in  evidence.     Reg.  v.  Ford,  Id.  184.  (d) 

3  Burrough  v.  Martin,  2  Cam[)b.  112  ;  Burton  v.  Plummer,  2  Ad.  &  El.  343,  per 
Ld.  Denman;  Jacob  v.  Lindsay,  1  East,  460;  Downer  v.  Rowell,  24  Vt.  343.  But  see 
Butler  V.  Benson,  1  Barb.  526. 

(a)  Clough  V.  State,  7  Neb  320  ;  Peo-  or  documents  to  refresh  his  memory.  He 
pie  V.  Cotta,  49  Cal.  167.  In  all  cases  may  refresh  his  memory  as  to  dates  by 
where  accounts  are  multitudinous,  the  rule  turning  to  entries  on  his  account-book, 
as  to  personal  knowledge  is  relaxed.  He  and  may  make  copies  of  such  entries  to 
must  be  permitted  to  put  the  items  into  an  use  upon  the  witness  stand.  The  entries 
account,  and  to  refresh  his  recollection  by  or  memoranda  are  not  evidence  in  them- 
means  of  other  accounts  and  i)apers  as  to  selves.  They  do  not  go  before  the  jury, 
the  items.  In  a  long  account  of  sales,  a  Their  office  "is  .solely  to  refresh  the  wit- 
party  rarely  recollects  all  the  itetns  ;  but  ness's  recollection,  and  being  so  refreshed, 
he  can  be  perfectly  certain  from  his  mode  the  witness  testifies  from  his  own  knowl- 
of  business,  on  finding  the  entries  in  his  edge  and  recollection.  Erie  Preserving  Co. 
books,  that    the    charges    were    correctly  v.  Miller,  52  Conn.  445. 

made.     Allegheny  Ins.  Co.  v.  Hanlon,  31  (c)  Costello  v.  Crowell,  133  Mass.  355; 

Leg.  Int.  372.     Anie,  §  93.  Seavy  i;.  Dearborn,  19  N.  H.  351  ;   Web- 

(b)  Com.  V.  Ford,  130  Mass.  64  ;  Fol-  ster  v.  Clark,  30  N.  H.  245  ;  State  v. 
som  V.  Apple  River  Log  Driving  Co.,  Colwell,  3  R.  I.  132  :  Green  v.  Caulk,  16 
41  Wis.  602  ;  State  v.  Lull,  37  Me.  246  ;  Md.  556. 

Cameron   v.    Blackman,    39    JMich.    108;  (d)   But  where  a  witness  whose   depo- 

State  V.  Collins,  15  S.  C.  373;  Webster  v.  sition    had    been    previously    taken    was 

Clark,  30  N.  H.  245  ;  Putnam  v.  Goodall,  asked  in  cross-examination  what   he  had 

31  N.    H.   419  ;    Converse  v.    Hobbs,    64  stated  in  the  deposition,  he  was  permitted 

N.  H.  42  ;  Bonnet  v.   Glattfeldt,  120  111.  to  refresh  his  recollection  by  referring  to 

166  ;    Watrous  v.   Cunningham,    71    Cal.  a  copy  of  the  deposition.     George  v.  Joy, 

33;  Longu.  Regen,  119  Pa.  St.  412.     The  19  N.  H.  544. 
witness  need  not  use  oidy  original  entries 


572  LAW    OF    EVIDENCE.  [PART   III. 

witness.*  (fj)  But  where  the  witness  neither  recollects  the  fact, 
nor  remembers  to  have  recognized  the  written  statement  as  true, 
and  the  writing  was  not  made  by  him,  his  testimony,  so  far  as  it 
is  founded  upon  the  written  paper,  is  but  hearsay;  and  a  witness 
can  no  more  be  permitted  to  give  evidence  of  his  inference  from 
what  a  third  person  has  written,  than  from  what  a  third  person 
has  said.° 

§  437.  "When  writings  may  be  used  to  assist  memory.  The  cases 
in  which  writings  are  permitted  to  be  used  for  this  purpose  may 
be  divided  into  three  classes.  (1.)  Where  the  writing  is  used 
only  for  the  purpose  of  assisting  the  memory  of  the  witness.  In 
this  case,  it  does  not  seem  necessary  that  the  writing  should  be 
produced  in  court,  ^  (a)  though  its  absence  may  afford  matter  of 
observation  to  the  jury ;  for  the  witness  at  last  testifies  from  his 
own  recollection,  (b)  (2.)  Where  the  witness  recollects  having 
seen  the  writing  before,  and  though  he  has  now  no  independent 
recollection  of  the  facts  mentioned  in  it,  yet  he  remembers  that, 
at  the  time  he  saw  it,  he  knew  the  contents  to  be  correct,  (c)  In 
this  case,  the  writing  itself  must  be  produced  in  court,  in  order 

*  Maugham  v.  Hubbard,  8  B.  &  C.  14 ;  Kensington  v.  Inglis,  8  East,  273  ;  supra, 
§§  90,  228  (and  post,  §§  463-466). 
5  2  Phil.  Evid.  413. 
1  Kensington  v.  Inglis,  8  East,  273  ;  Burton  v.  Plummer,  2  Ad.  k  El.  341. 

(e)  Nor,  if  admissible,  need  it  be  read  ciently   retentive  without    depending    on 

to  the  jury.     Eaynor  ?;.  Norton,  31  Mich,  memoranda,  and  even  memoranda  would 

210.     It  is  held  in  New  York,  that  if  a  not  bring  the  transaction  to  present  recol- 

witness,  after  refreshing  his  memory  by  a  lection.     In  such  cases,  if  the  witness  on 

writing,  testifies  from  personal  recollection,  looking  at  the  writing,  is  able  to  testify 

the  writing  cannot  be  given  in  evidence,  that  he  knows  the  transaction  took  place. 

Flood  V.  Mitchell,  68  N.  Y.  507  ;   Wight-  though  he  has  no  present  memory  of  it,  his 

man  v.  Overhiser,  8  Daly,  282.  testimony   is   admissible."      In    Reg.    v. 

(a)  But  .see  Harrison  v.  Middleton,  11  Langton,  L.  K.  2  Q.  B.  Div.  296,  46  L.  J. 
Gratt.  (Va.)  527  ;  Howland  v.  Sheriff",  M.  C.  136,  the  following  were  the  facts: 
&c.,  5  Sandf.   (N.  Y.)  219.  Langton  was  a  time-keeper  in  a  colliery, 

(b)  Morrison  v.  C;hapin,  97  Mass.  76.  and  it  was  his  duty  to  n)ake  out  a  list  of 

(c)  Costello  V.  Crowell,  133  Ma.ss.  352  ;  the  days  worked  by  the  workmen  and  give 
Coffin  V.  Vincent,  12  C'ush.  (Mass.)  98.  it  to  a  clerk,  who  entered  it  in  the  time- 
So  in  Dugan  v.  Mahoney,  11  Allen  book,  and  also  the  wages  due  for  the  work. 
(Mass.),  572;  a  witness  was  allowed  to  On  pay-day,  the  time-keeper,  Langton, 
testify  tothe  delivery  of  goods,  after  looking  read  the  number  of  days  to  the  pay-clerk, 
at  a  memorandum  book,  in  which  entries  who  paid  the  wages  accordingly.  The 
were  made  by  him  in  the  ordinary  course  pay-clerk  also  saw  the  entries  in  the  tiine- 
of  business,  though  he  had  no  recollection  book,  while  the  time-keeper  was  reading 
of  the  delivery.  The  court  cites  the  second  them  out.  On  the  trial  of  an  indictment 
rule  of  Mr.  Greenleaf  given  above,  and  against  Langton  for  obtaining  money  by 
says,  "  It  is  obvious  that  this  species  of  false  pretences,  it  was  held  that  the  pay- 
evidence  must  be  admissible  in  regard  to  clerk  might  refresh  his  memory  by  refer- 
numbers,  dates,  sales  and  deliveries  of  ring  to.  the  entries  in  the  time-book  to 
goods,  payments  and  receipts  of  money,  jirove  the  money  paid  by  him  to  the  work- 
accounts  and  the  like,  in  respect  to  which  men.  Cf.  Davis  v.  Allen,  9  Gray  (Mass.), 
no  memory  could  be  expected  to  be  suffi-  322;  Reg.  v.  Guinea,   Ir.  Cir.  Rep.  167. 


CHAP     III.]  EXAMINATION    OF   WITNESSES.  673 

that  the  other  party  may  cross-examine;  not  that  such  writing  is 
thereby  made  evidence  of  itself;  but  that  the  other  party  may 
have  the  benefit  of  the  witness's  refreshing  his  memory  by  every 
part.^  (d)  And  for  the  same  reason,  a  witness  is  not  permitted 
to  refresh  his  memory  by  extracts  made  from  other  writings.^ 
(3.)  Where  the  writing  in  question  neither  is  recognized  by  the 
witness  as  one  which  he  remembers  to  have  before  seen,  nor 
awakens  his  memory  to  the  recollection  of  anything  contained  in 
it;  but,  nevertheless,  knowing  the  writing  to  be  genuine,  his 
mind  is  so  convinced,  that  he  is  on  that  ground  enabled  to  swear 
positively  as  to  the  fact.  An  example  of  this  kind  is,  where  a 
banker's  clerk  is  shown  a  bill  of  exchange,  which  has  his  own 
writing  upon  it,  from  which  he  knows  and  is  able  to  state  posi- 
tively that  it  passed  through  his  hands.  So,  where  an  agent 
made  a  parol  lease,  and  entered  a  memorandum  of  the  terms  in 
a  book  which  was  produced,  but  the  agent  stated  that  he  had  no 
memory  of  the  transaction  but  from  the  book,  without  which  he 
should  not,  of  his  own  knowledge,  be  able  to  speak  to  the  fact, 

2  Supra,  §§  115,  436;  Rex  v.  St.  Martin's,  Leicester,  2  Ad.  &  EI.  21.5,  per  Patteson. 
J.;  Sinclair  v.  Stevenson,  1  C.  &  P.  5S2  ;  s.  c.  2  Bin;,'.  516  ;  s.  c.  10  Moore,  46  ;  Loyd 
V.  Freshtield,  2  C.  &  P.  325  ;  s.  c.  9  D.  &  R.  19.  If  the  paper  is  shown  to  the  wit- 
ness, directl}'  to  prove  the  handwriting,  it  has  been  ruled  that  the  other  party  has  not 
therefore  a  right  to  use  it.  Sinclair  v.  Stevenson,  supra.  But  the  contrary  has  since 
been  held,  by  Bosanquet,  J.,  in  Russell  v.  Rider,  G  C.  &  P.  416,  and  with  good  reason; 
for  the  adverse  party  has  a  right  to  cross-examine  the  witness  as  to  the  handwriting. 
2  Phil.  Evid.  400.  But  if  the  counsel,  in  cross-examination,  puts  a  paper  into  a  wit- 
ness's hand,  in  order  to  refresh  his  memory,  the  opposite  counsel  has  a  right  to  look  at 
it  without  being  bound  to  read  it  in  evidence;  and  may  also  ask  the  witness  when  it  was 
written,  without  being  bound  to  put  it  into  the  case.  Rex  v.  Ramsden,  2  C.  & 
P.  603.  (e)  The  American  courts  have  sometimes  carried  the  rule  farther  than  it  has 
been  carried  in  England,  by  admitting  the  writing  itself  to  go  in  evidence  to  the  jury, 
in  all  cases  where  it  was  made  by  the  witness  at  the  time  of  the  fact,  for  the  {)urpose  of 
preserving  the  memory  of  it,  if  at  the  time  of  testifying  he  can  recollect  nothing  further 
than  that  he  had  accurately  reduced  tlie  whole  transaction  to  writing.  Farmers'  and 
Mechanics'  Bank  v.  Boraef,  1  Rawle,  152  ;  Smith  v.  Lane,  12  S.  &  R.  84,  per  Gibson, 
J.;  State  v.  Rawls,  2  Nott  &  McCord,  331  ;  Clark  v.  Vorce,  15  Wend.  193  ;  Merrill  v. 
Ithaca  &  Oswego  Railroad  Co.,  16  Wend.  586,  596-598  ;  Haven  t-.  Wendell,  11  N.  H. 
Il2.     But  see  Lightner  v.  Wike,  4  S.  &  R.  203  ;  (  /")   infra,  §  466. 

3  Doe  V.  Perkins,  3  T.  R.  749;  2  Ad.  &  El.  215. 

{d)  Adae  v.  Zangs,  41  Iowa,  586.  spends  with  the  copy  and  his  testimony, 

{i)  Tibbetts  u.  Sternberg,  66  Barb.  (N.  this  is  a  fact  which  the  jury  may  weigh 

Y  )   201  ;  Burgess  v.  Bennett,   20  W.  R.  against   him.       Davie    v.    Jones,    68   Me. 

720;  Payne  v.  Ibbotson,  27  L.  J.  Ex.  341.  393. 

But    see    Lord   v.  Colvin,  2  Drew.   205;  (/)  In  Massachusetts  the  writing  is  in 

Palmer  u.  Maclear,  1  Sw.  &  Tr.   149.     If  such  case  uniformly  held   not    to  be  evi- 

he  asks  questions  as  to  other  parts  of  the  dence.     Com.  v.  Jeffs,  132  Mass.  5  ;  Com. 

memorandum,    he  makes  it  his  own  evi-  v.    Ford,    130    Id.  64 ;    Com.    v.   Fox,    7 

deuce.     Gregory  v.  Tavernor,    6  C.   &  P.  Gray  (.Mass.),  585.     In  the  United  States 

231.      If  a  witness  refreshes  his  memory  Supreme  Court  it  has  been  held  that  the 

from  a  writing,  which  he  says  is  a  copy  of  writing  itself  is  evidence  (Insurance  Co.  v. 

his  book  of  account,  which  he  testifies  he  Weides,  14  Wall.  375),  and  in  accord  with 

has  with  him  in  court,  but  refuses  to  pro-  this    deci.sion    is    Kent  v.   Mason,   1    111. 

duce  the  same,  to  show  whether  it  corre-  App.   466. 


574  LAW    OF    EVIDENCE.  [PART    III. 

but  on  reading  the  entry  he  had  no  doubt  that  the  fact  really  hap- 
pened; it  was  held  sufficient.^  So,  where  a  witness,  called  to 
prove  the  execution  of  a  deed,  sees  his  own  signature  to  the  attes- 
tation, and  says,  that  he  is  therefore  sure  that  he  saw  the  party 
execute  the  deed ;  that  is  sufficient  proof  of  the  execution  of  a 
deed,  though  he  adds  that  he  has  no  recollection  of  the  iact^  (g) 
In  these  and  the  like  cases,  for  the  reason  before  given,  the  writ- 
ing itself  must  be  produced.^ 

§  438.  Date  of  writing  so  used.  As  to  the  time  tvhen  the  ivrit- 
ing,  thus  used  to  restore  the  recollection  of  facts,  should  have  been 
made,  no  precise  rule  seems  to  have  been  established.  It  is  most 
frequently  said,  that  the  writing  must  have  been  made  at  the 
time  of  the  fact  in  question,  or  recently  afterwards.^  At  the  far- 
thest, it  ought  to  have  been  made  before  such  a  period  of  time  has 
elapsed,  as  to  render  it  probable  that  the  memory  of  the  witness 
might  have  become  deficient.  ^  But  the  practice,  in  this  respect, 
is  o-overned  very  much  by  the  circumstances  of  the  particular 
case.  In  one  case,  to  prove  the  date  of  an  act  of  bankruptcy  com- 
mitted many  years  before,  a  witness  was  permitted  to  recur  to  his 
own  deposition,  made  some  time  during  the  year  in  which  the 
fact  happened.  3  In  another  case,  the  witness  was  not  permitted 
to  refresh  his  memory  with  a  copy  of  a  paper,  made  by  himself 
six  months  after  he  made  the  original,  though  the  original  was 
proved  to  have  been  so  written  over  with  figures  as  to  have  be- 
come unintelligible ;  the  learned  judge  saying,  that  he  could  only 
look  at  the  original  memorandum,  made  near  the  time.*  (a)     And 

4  1  Stark   Evid.  154,  155  ;  Alison's  Practice,  pp.  540,  541  ;  Tait  on  Evid.  432. 

6  Rex  V.  St.  Martin's,  Leicester,  2  Ad.  &  El.  210.  See  also  Haig  v.  Newton,  1 
Mills,  Const.  423  ;  Sharpe  v.  Bingley,  Id.  373. 

6  Mauf'ham  v.  Hubhard,  8  B.  &  C.  16,  per  Bailey,  J.  ;  Russell  v.  Coffin,  8  Pick. 
143  150;°Den  v.  Downam,  1  Green,  135,  142  ;  Jackson  v.  Christman,  4  Wend.  277, 
282'-  Merrill  v.  Ithaca,  &c.  Railroad  Co.,  16  Wend.  598;  Patterson  i'.  Tucker,  4  Halst. 
322,'332,  333  ;  Wheeler  v.  Hatch,  3  Fairf.  389  ;  Pigott  v.  HoUoway,  1  Biun.  436;  Col- 
lins y.  Lemasters,  2  Bail.  141.  m    T,    .rri      TT  J 

1  Tanner  v.  Taylor,  cited  hy  Buller,  J.,  in  Doe  v.  Perkins,  3  T.  R.  754  ;  Howard 
V.  Cantield,  5  Dow'l.  P.  C.  417  ;  Dupuy  v.  Truman,  2  Y.  &  Col.  341.  Where  A.  was 
proved  to  have  written  a  certain  article  in  a  newspaper,  but  the  manuscript  was  lost, 
and  A.  had  no  recollection  of  the  fact  of  writing  it,  it  was  held  that  the  newsi>aper  might 
he  used  to  refresh  his  memory,  and  that  he  might  then  be  asked  whether  he  had  any 
doubt  that  the  fact  was  as  therein  stated.  Topham  v.  McGregor,  1  Car.  &  Kir.  320. 
So,  where  the  transaction  had  faded  from  the  memory  of  the  witness,  but  he  recollected, 
that  while  it  was  recent  and  fresh  in  his  memory,  he  had  stated  the  circumstances  in 
his  examination  before  commissioners  of  bankruptcy,  which  they  had  reduced  to  writ- 
ing, and  he  had  signed  ;  he  was  allowed  to  look  at  his  examination  to  refresh  his  mem- 
or\'.     Wood  t).  Cooper,  Id.  645.  . 

2  Jones  V.  Stroud,  2  C.  &  P.  196.  ^  Vaughan  v.  Martin,  1  Esp.  440. 

4  Jones  V.  Stroud,  2  C.  &  P.  196,  per  Best,  C.  J.     In  this  case,  the  words  in  the 

(g)  Martin  v.  Good,  14  Md.  398;  Cole  {a)  Copies  made  under   such   circum- 

V.  Jessup,  6  Selden  (N.  Y.)  96.  stances  that  the  witness  can  swear  to  the 


CHAP.    Ill,]  EXAMINATION    OF    WITNESSES.  675 

in  a  still  later  case,  where  it  was  proposed  to  refer  to  a  paper," 
which  the  witness  had  drawn  up  for  the  party  who  called  him, 
after  the  cause  was  set  down  for  trial,  the  learned  judge  refused 
it;  observing  that  the  rule  must  be  confined  to  papers  written 
contemporaneously  with  the  transaction.^  (i)  But  where  the  wit- 
ness had  herself  noted  down  the  transactions  from  time  tu  time 
as  they  occurred,  but  had  requested  the  plaintiff's  solicitor  to 
digest  her  notes  into  the  form  of  a  deposition,  which  she  after- 
wards had  revised,  corrected,  and  transcribed,  the  Lord  Chan- 
cellor inJionantly  suppressed  the  deposition. ^ 

§  430.  When  witness  is  blind.  If  a  witness  has  become  blind, 
a  contemporaneous  writing  made  by  himself,  though  otherwise 
inadmissible,  may  yet  be  read  over  to  him  in  order  to  excite  his 
recollection.!  So,  where  a  receipt  for  goods  was  inadmissible  for 
want  of  a  stamp,  it  Avas  permitted  to  be  used  to  refresh  the  mem- 
ory of  a  witness  who  heard  it  read  over  to  the  defendant,  the 
latter  at  the  same  time  admitting  the  receipt  of  the  goods. ^ 

copy  and  as  sworn  to  by  the  witness  were  spoken  to  tlie  plaintiff,  Init  on  producing  the 
original,  which,  on  further  reflection,  was  confirmed  by  the  witness,  it  appeared  that 
they  were  spoken  of  him.  The  action  was  slander ;  and  the  words  being  laid  accord- 
ing to  the  copv,  for  this  variance  the  ])laintiff  was  nonsuited. 

5  Steiiikeller  v'.  Newton,  9  C.  &  P.  313. 

6  Anon.,  cited  by  Lord  Kenyon,  in  Doe  r.  Perkins,  3  T.  R.  752.  See  also  Sayer  v. 
Wag.staif,  5  Beav.  462. 

1  Catt  V.  Howard,  3  Stark.  3. 

2  Jacob  V.  Lindsay,  1  East,  460.  In  Scotland,  the  subject  of  the  use  and  proper 
office  of  writings,  in  restoring  the  recollection  of  witnesses,  has  been  well  considered 
and  settled  ;  and  the  law,  as  practised  in  the  courts  of  that  country,  is  stated  with  pre- 
cision by  Mr.  Alison,  in  his  elegant  and  philoso])hical  Treatise  on  the  Practice  of  the 
Criminal  Law.  "It  is  frequently  made  a  question,"  he  observes,  "whether  a  witness 
may  refer  to  notes  or  meniorandums  made  to  assist  his  memory.  On  this  subject,  the 
rule  is,  that  notes  or  memoranda  made  up  by  the  witness  at  the  moment,  or  recently 
after  the  fact,  may  be  looked  to  in  older  to  refresh  his  memory  ;  but  if  they  were  made 
up  at  the  distance  of  weeks  or  months  thereafter,  and  still  more,  if  done  at  the  recom- 
mendation of  one  of  the  parties,  they  are  not  admissible.  It  is  accordingly  usual  to 
allow  witnesses  to  look  to  memorandums  made  at  the  time,  of  dates,  distances,  appear- 
ances on  dead  bodies,  lists  of  stolen  goods,  or  the  like,  before  emitting  his  testimony, 
or  even  to  read  such  notes  to  the  jury,  as  his  evidence,  he  having  first  sworn  that  they 
were  made  at  the  time,  and  faithfully  done.  In  regard  to  lists  of  stolen  goods,  in  par- 
ticular, it  is  now  the  usual  practice  to  have  inventories  of  them  made  up  at  the  time 
from  the  information  of  the  witness  in  {irecognition,  signed  by  him,  and  lil)elled  on  as 

accuracy  of  their  statements  from  recollec-  at  the  request  of  a  party  interested,  made 

tion  have  been  frequently  admitted.     Lord  a  statement  in  writing,  and  swore  to  it, 

Talbot  V.  Cusack,  17  Ir.  C.   L.   213.     See  he  was  not  allowed  to  testify  to  his  belief 

also  Home  v.   McKenzie,  6  C.  &  F.  628  ;  in    its   correctness.     Spring   Garden    Ins. 

Tophani   v.    McGregor,    cited   in   note   3,  Co.  v.  Riley,  15  Md.  54. 
§  438,  where  the  author  of  an  article  in  a         Where  one  accused  of  a  crime  was  ex- 

liewspaper,   the   MS.    being  lost,  was  al-  arained  before  a  coroner's  inquest,  and  his 

lowed   to    refresh   his   memory   from   the  testimony  taken   in  writing,   he   was  not 

printed  article.  allowed  to  use  this  in  testifying  on  his 

(6)  So    where   a  viritness,   five   months  trial  for  that  crime.     Sjiate  v.  Rhodes,  1 

after  the  occurrence  of  certain  events,  had,  Hou.st.  (Del.)  Cr.  Ca.  476. 


570  LAW  OP    EVIDENCE.  [PART    III. 

§  440.  Degree  of  certainty.  Opinions.  In  general,  though  a 
witness  must  depose  to  such  facts  only  as  are  u'ithin  his  oivn 
knowledge,  yet  there  is  no  rule  that  requires  him  to  speak  with 
such  expression  of  certainty  as  to  exclude  all  doubt  in  his  mind. 
If  the  fact  is  impressed  on  his  memory,  but  his  recollection  does 
not  rise  to  positive  assurance,  it  is  still  admissil)le,  to  be  weighed 
by  the  jury;  but  if  the  impression  is  not  derived  from  recollec- 
tion of  the  fact,  and  is  so  slight  as  to  render  it  probable  that  it  may 
have  been  derived  from  others,  or  may  have  been  some  unwarrant- 
able deduction  of  the  witness's  own  mind,  it  will  be  rejected.^ 
And  though  the  opinions  of  witnesses  are  in  general  not  evi- 
dence, yet  on  certain  subjects  some  classes  of  witnesses  may 
deliver  their  own  opinions,  and  on  certain  other  subjects  anv 
competent  witness  may  express  his  opinion  or  belief;  and  on  anv 
subject  to  which  a  witness  may  testify,  if  he  has  any  recollection 
at  all  of  the  fact,  he  may  express  it  as  it  lies  in  his  memory,  of 
which  the  jury  will  judge. ^  Thus,  it  is  the  constant  practice 
to  receive  in  evidence  any  witness's  belief  of  the  identity  of  a 

a  production  at  the  trial,  and  he  is  then  desired  to  read  them,  or  they  are  read  to  him, 
and  he  swears  that  they  contain  a  correct  list  of  the  stolen  articles.  In  this  way  much 
time  is  saved  at  the  trial,  and  much  more  correctness  and  accuracy  is  obtained,  than 
could  possibly  have  been  expected,  if  the  witness  were  required  to  state  from  memory 
all  the  particulars  of  the  stolen  articles,  at  the  distance  perhaps  of  months  from  tlie 
time  when  they  were  lost.  With  the  exce])tion,  however,  of  such  mnmorandums,  notes, 
or  inventories  made  up  at  the  time,  or  shortly  after  the  occasion  libelled,  a  witness  is 
not  permitted  to  refer  to  a  written  paper  as  containing  his  deposition  ;  for  that  would 
annihilate  the  whole  advantages  of  parol  evidence,  and  viva  voce  examination,  and  con- 
vert a  jury  trial  into  a  mere  consideration  of  written  instruments.  There  is  one  excep- 
tion, however,  properly  introduced  into  this  rule  ;  in  the  case  of  medical  or  other  scien- 
tific reports  or  certificates,  which  are  lodged  in  process  before  the  trial,  and  libelled  on 
as  productions  in  the  indictment,  and  which  the  witness  is  allowed  to  read  as  liis  depo- 
sition to  the  jur}%  confirming  it  at  its  close  by  a  declaration  on  his  oath,  that  it  is  a 
true  rej)ort.  The  reason  of  this  exception  is  founded  in  the  consideration,  that  the 
medical  or  other  scientific  facts  or  appearances,  which  are  the  subject  of  such  a  rejiort, 
are  generally  so  minute  and  detailed,  that  they  cannot  with  safety  be  entrusted  to  the 
memory  of  the  witness,  but  much  more  reliance  may  be  placed  on  a  report  made  out  by 
him  at  tlie  time,  when  the  facts  or  appearances  are  fresh  in  liis  recollection  ;  while,  on 
the  other  hand,  such  witnesses  have  generally  no  personal  interest  in  the  matter,  and, 
from  their  situation  and  rank  in  life,  are  much  less  liable  to  suspicion  than  those  of  an 
inferior  class,  or  more  intimately  connected  with  the  transaction  in  question.  Although, 
therefore,  the  scientific  wituess  is  always  called  on  to  read  his  report,  as  affording  tlie 
best  evidences  of  the  appearances  he  was  called  on  to  examine,  yet  he  may  be,  and  gen- 
erally is,  subjected  to  a  further  examination  by  the  prosecutor,  or  a  cross-examination 
on  the  prisoner's  part ;  and  if  he  is  called  on  to  state  any  facts  in  the  case,  unconnected 
with  his  scientific  report,  as  conversations  with  the  deceased,  confessions  heard  by  him 
from  the  panel,  or  the  like,  vtitiirjure  commune,  he  stands  in  the  situation  of  an  ordi- 
nary witness,  and  must  give  his  evidence  verbally  in  answer  to  the  questions  put  to 
him,  and  can  only  refer  to  jottings  or  memorandums  of  dates,  &c.,  made  up  at  the  time, 
to  refresh  his  memory,  like  any  other  person  put  into  the  box."  See  Alison's  Practice, 
540-542. 

1  Clark  V.  Bigelow,  4  Shepl.  246. 

=  Miller's  Case,  3  Wils.  427,  per  Ld.  Ch.  .Tust.  DeGrey  ;  IMcNally's  Evid.  262,  263. 
And  see  Carmalt  v.  Post,  8  Watts,  411,  per  Gibson,  C.  J. 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.  577 

person,  (a)  or  that  the  handwriting  in  questiim  is  or  is  not  the 
handwriting  of  a  particuhir  individual,  provided  he  has  any  knowl- 
edge of  the  person  or  handwriting ;  (6)  and  if  he  testifies  falsely 
as  to  his  belief,  he  may  be  convicted  of  perjury. ^  On  (picstions  of 
science,  skill,  or  trade,  or  others  of  the  like  kind,  persons  of  skill, 
sometimes  called  experts^^  m^y  not  only  testify  to  facts,  but  arc  per- 
mitted to  give  their  opinions  in  evidence,  {c)     Thus,  the  opinions 

3  Rex  V.  Pedley,  Leach,  Cr.  Cas.  4th  ed.  325,  case  163. 

-  Expcr/s,  in  the  strict  sense  of  the  word,  are  "persons  instructed  by  experience." 
1  Bonvier's  Law  Diet,  in  verb.  But  more  generally  speaking,  the  term  inchides  all 
"men  of  science,"  as  it  was  used  by  Ld.  Mansfield  in  Folkes  v.  Chadd,  3  Uoug.  157; 
or  "persons  professionally  acquainted  with  the  science  or  practice"  in  question; 
Strickland  on  Evid.  p.  408;  or  "  conversant  with  the  subject-iiiutter,  on  questions 
of  science,  skill,  trade,  and  others  of  the  like  kind."  Best's  Principles  of  Evidence, 
§  346.  The  rule  on  this  subject  is  stated  by  Mr.  Smith  in  his  note  to  Carter  v. 
Boehm,  1  Smith's  Lead.  Cas.  286.  "On  the  one  hand,"  he  observes,  "it  appears 
to  be  admitted  that  the  opinion  of  witnesses  possessing  peculiar  skill  is  admissible, 
whenever  the  subject-matter  of  inquiry  is  such,  that  inexperienced  persons  are  un- 
likely to  prove  cai)able  of  forming  a  correct  judgment  upon  it  without  such  assist- 
ance ;  in  other  words,  when  it  so  far  partakes  of  the  nature  of  a  science,  as  to  require 
a  course  of  previous  habit,  or  study,  in  order  to  the  attainment  of  a  knowledge  of  it; 
see  Folkes  v.  Chadd,  3  Doug.  157  ;  R-  v.  Searle,  2  M.  &  M.  75  ;  Thornton  v.  R.  V). 
Assnr.  Co.,  Peake,  25  ;  Chaurand  v.  Angerstein,  Peake,  44  ;  while,  on  the  other  hand, 
it  does  not  seem  to  be  contended  that  the  opinions  of  witnesses  can  be  received,  when 
the  inquiry  is  into  a  subject-matter,  the  nature  of  which  is  not  such  as  to  require  any 
peculiar  habits  or  study,  in  order  to  qualify  a  man  to  understand  it."  (d)  It  has  been 
held  unnecessary  that  the  witness  should  be  engaged  in  the  practice  of  his  profession  or 
science  ;  it  being  sufficient  that  he  has  studied  it.  Thus,  the  fact  that  the  witness, 
though  he  had  studied  medicine,  was  not  then  a  practising  physician,  was  held  to  go 
merely  to  his  credit.     Tullis  v.  Kidd,  12  Ala.  648. 

(a)  Thus  when  on  prosecution  for  an  there  is  no  evidence  to  support  it.     Nunes 

alleged  sale  of  liquor  to  a  minor,  a  witness  v.  Perry,  113  Mass.  274;  Com.  v.  Williams, 

for  the  prosecution  described  carefully  the  105   Id.    62  ;  Rogers   v.  Ritter,    12  Wall, 

appearance,  dress,  and  manners  of  the  girl  (U.  S.)  317. 

to  whom  the  sale  was  made  and  who  was  {c)  The   preliminary  question  whether 

alleged  in  the  complaint  to  have  been  a  the  witness  offered  as  an  expert  has  the 

minor,  the  witne.ss  was  allowed  to  give  his  necessary  qualification  of  an  expert  is  for 

opinion  of  her  age.     This  decision  comes  the   Court    and    is   largely    discretionary 

under  the  rule  by  which  any  person  may  with  them  ;  so  that  unless  it  appears  that 

give  his  opinion  on  the  question  of  iden-  there  was  no  evidence  of  such  qualifica- 

tity,  or  his  judgment  of  size  and  weight,  tion    the   admission    of   the    witness  will 

or    his    estimate    of    distance     or    time,  not  be  revised  by  the  Supreme  Court  on 

The.se  opinions  are  considered  to  be  open  appeal,     Perkins  v.   Stickney,  132  Mass. 

to  all  men  of  ordinary  information  and  re-  217;  Hills  v.  Home  Ins.  Co.,  129  Id.  345; 

quire  no  special  training.   Com.  r.  O'Brien,  Lawrences.  Boston,  119  Id.  126  ;  Sorg  »;. 

134  Mass.  198.     So  evidence  of  identity  of  Fir.st,  &c.   Congregation,  63  Pa.   St.   156. 

a  person  depending  upon  a  recognition  of  Ballard  v.  New  York,  &c.  R.  R.   Co.   126 

liis  voice  has  been  admitted  in  cases  in  Pa.  St.    141  ;   Slocovich    v.    Orient  Mut. 

Massachusetts,    the    evidence   being   held  Ins.  Co.,  108  N.  Y.  61  ;  Fayette  v.  Ches- 

competent  although  its  weight  is  for  the  terville,  77  Mi-.  32;  Fort  Wayne  v.  Coombs, 

jury.     Com.    v.    Hayes,   138    Mass.    185;  107  Ind.  84  ;  Forgey  u.  First  Nnt'l  Bank, 

Com.  V.  Williams,  105  Mass.  62.  Cambridge  City,  6(3  Ind.  123  ;  McEwen  v. 

{b)  The  q\ialifications  of   a  witness  to  Bigelow,  40  Mich.  215;  Castner  y.  Sliker, 

testify  as  an  expert  in  handwriting  are  to  33  N.   J.    L.  96  ;    Flynt  v.  Bodenhanier, 

be  decided  by  the  judge,  and  his  decision  80  N.  C.  205  ;  Southern  Life  Ins.  Co.  v. 

is  final,  unless  plainly  wrong  in  law,  or  Wilkinson,  52  Ga.  535.     In  some  States 

(fO  Naughton  v.  Stagg,  4  Mo.  App.  271. 
VOL.  I. —  37 


578 


LAW    OF    EVIDENCE. 


[part   III. 


of  medical  men  are  constantly  admitted  as  to  the  cause  of  disease, 
or  of  death,  or  the  consequences  of  wounds,  and  as  to  the  sane  or 


it  is  held  that  under  no  circumstances  will 
the  exercise  of  this  discretion  be  reviewed 
on  api)eal.  Dole  v.  Johnson,  50  N.  H. 
452  ;  Jones  v.  Tucker,  41  N.  H.  546 ; 
Wright  V.  Williams,  47  Vt.  222  ;  Sarle  v. 
Arnold,  7  K.  I.  582.  If  the  evidence 
stitisties  the  court  of  tiie  (lualihcations  of 
the  witness  it  is  not  hound  to  permit  a 
preliminary  cross-examination  intended  to 
show  lack  of  sufficient  iiualitication,  though 
it  would,  no  doubt,  have  a  right  to  do  so. 
The  regular  cross-examination  may  fully 
go  into  the  question  of  the  competency  of 
the  witness,  and  if  it  ai)pear  that  he  is 
not  a  ([ualified  expert  witness,  his  testi- 
mony will  be  weakened  or  entirely  de- 
stroyed before  the  jury.  Davis  v.  State, 
35  Ind.  496  ;  Goodwin  v.  State,  96  Ind. 
550  ;  Fort  Wayne  v.  Coombs,  supra.  One 
expert  may  testify  to  the  qualitication  of 
another.     Laros  v.  Com.,  84  Pa.  St.  200. 

When  the  subject  so  far  partakes  of  the 
nature  of  a  science  or  trade  as  to  require  a 
previous  course  of  study  or  habit  in  order 
to  the  attainment  of  a  knowledge  of  it, 
opinions  of  experts  are  atlmissible.  On 
the  other  hand,  if  the  relation  of  facts  and 
their  probable  results  can  be  determined 
without  .special  study  or  skill,  the  facts 
themselves  must  be  given,  and  the  opin- 
ions of  experts  are  inadmissible.  This 
line  of  distinction  is  well  exi)ressed  in  the 
opinion  of  the  court  in  a  case  in  New 
York.  Ferguson  v.  Hubliell,  97  N.  Y. 
511.  "  It  is  not  sufficient  to  warrant  the 
introduction  of  exjiert  evidence  that  the 
witness  may  know  more  of  the  subject  of 
inquiry,  and  may  better  comprehend  and 
appreciate  it  than  the  jury  ;  but  to  warrant 
its  introduction,  the  subject  of  the  inquiry 
must  be  one  relating  to  some  trade,  pro- 
fession, science  or  art  in  which  persons  in- 
structed therein,  by  study  or  experience, 
may  be  sujijiosed  to  have  more  skill  and 
knowledge  than  jurors  of  average  intelli- 
gence may  be  presumed  generally  to  have. 
The  jurors  may  have  less  skill  and  experi- 
ence than  the  witnesses  and  yet  have  enough 
to  draw  their  own  conclusions  and  do  jus- 
tice between  the  parties.  Where  the  facts 
can  be  placed  before  a  jury,  and  they  are  of 
such  a  nature  that  jurors  generally  are  just 
as  competent  to  form  o]iinions  in  reference 
to  them  and  draw  inferences  from  them  as 
witnesses,  then  there  is  no  occasion  to  re- 
sort to  expert  or  opinion  evidence.  To 
require  the  exclusion  of  such  evidence,  it 
is  not  needed  that  the  jurors  should  be 
able  to  see  the  facts  as  they  appear  to 
eye-witnesses  or  to  be  as  capable  to  draw 


conclusions  from  them  as  some  witnesses 
might  be,  but  it  is  sufficient  that  the 
facts  can  be  presented,  and  in  such  a  man- 
ner that  jurors  of  ordinary  intelligence 
and  experience  in  the  affairs  of  life  can 
appreciate  them,  can  base  intelligent  judg- 
ments ujion  tbem  and  comprehend  them 
suthciently  for  the  ordinary  administration 
of  justice.  The  rules  admitting  the  opin- 
ions of  experts  .should  not  be  unnecessarily 
extended.  Experience  has  shown  that  it 
is  much  safer  to  confine  the  testimony  of 
witnesses  to  facts  in  all  cases  where  that 
is  practicable,  and  leave  the  jury  to  exer- 
cise their  judgment  and  experience  upon  the 
facts  proved.  Where  witnesses  testify  to 
facts  they  may  be  specifically  contradicted, 
and  if  they  testify  falsely  they  are  liable 
to  punishment  for  perjury.  But  they  may 
give  false  opinions  without  fear  of  punish- 
ment. It  is  generally  safer  to  take  the 
judgments  of  unskilled  jurors  than  the 
opinions  of  hired  and  generally  biased  ex- 
perts." In  a  later  case  in  New  York,  Van 
Wycklen  v.  Brooklyn,  118  N.  Y.  429,  the 
rule  in  Ferguson  v.  Hubbell,  supra,  w&s 
quoted  with  approval,  but  the  court  indi- 
cates a  double  ground  of  adndssibility  for 
expert  testimony,  saying  that  witnesses  who 
are  skilled  in  science  and  art,  and  also 
those  who,  from  experience  and  special 
study,  have  peculiar  knowledge  upon  the 
subject  of  ini]uiry  which  jurors  have  not, 
may  testify  not  only  to  facts  but  may  also 
give  their  opinions  as  experts.  And  the 
court  quotes  with  approval  the  statement 
of  the  rule  in  Sclnvander  v.  Birge,  46 
Hun,  66,  as  follows:  "  The  governing  rule 
deduced  from  the  cases  permitting  the 
opinion  of  witnesses  is  that  the  subject 
must  be  one  of  science  or  skill,  or  one  of 
which  observation  and  experience  have 
given  the  party  a  means  of  knowledge 
which  exists  in  reason  rather  than  de- 
Rcrijitive  facts,  and  therefore  cannot  be 
intelligently  communicated  to  others  not 
familiar  with  the  subject  so  as  to  possess 
them  with  full  understanding  of  it."  Al- 
though it  is  not  always  a  valid  objection 
to  the  expression  of  an  opinion  by  a  wit- 
ness, that  it  is  upon  the  precise  question 
which  the  jury  are  to  determine  (Trans- 
portation Line  v.  Hope,  95  U.  S.  297  ; 
Bellinger  v.  N.  Y.  Cent.  R.  R.  Co.,  23 
N.  Y.  42),  yet  evidence  of  that  character 
is  only  allowed  when,  from  the  nature  of 
the  case,  the  facts  cannot  be  stated  or  de- 
scribed to  the  jury  in  such  a  manner  as  to 
enable  them  to  form  an  accurate  judgment 
thereof,  and  no  bett  jr  evidence  than  such 


CHAP.    III.] 


EXAMINATION    OF   WITNESSES. 


679 


insane  state  of  a  person's  mind,  as  collected  from' a  number  of 
circumstances,  and  as  to  other  subjects  of  professional  skill. ^ 
And  such  opinions  are  admissible  in  evidence,  though  the  wit- 
ness founds  them,  not  on  his  own  personal  observation,  but  on 
the  case  itself,  as  proved  by  other  witnesses  on  the  trial. ^(e)    But 

6  Stark.  Evid.  154  ;  Phil.  &  Am.  on  Evid.  899  ;  Tait  on  Evid.  43.3  :  Hnthorn  v. 
King,  8  Mass.  371  ;  Hoge  ;;.  Fisher,  1  Pet.  C.  C.  163  ;  Folkes  v.  Chadd,  3  Doug.  157; 
per  Ld.  Mansfield  ;  McXailv's  Evid.  329-335,  c.  30. 

6  Rex  V.  Wright,  Russ.  &  Rv.  456  ;  Rex  v.  Searle,  1  M.  &  Rob.  75  ;  Mi;Naghten's 
case,  10  CI.  &  Fin.  200,  212  ;  Paige  v.  Hazard,  5  Hill,  603. 


opinions  is  attainable.  Thus,  where  the 
action  is  for  an  injury  caused  by  defend- 
ant's negligence,  and  the  defence  sets  up 
contributory  negligence  on  the  part  of  the 
plaintiff,  the  defence  cannot  generally  in- 
troduce the  opinion  of  experts  as  to  whe- 
ther tlie  plaintiff  was  careless  or  not,  for 
this  depends  upon  the  manner  in  which 
lie  conducts  himself,  and  when  that  ap- 
pears, the  conclusion  whether  the  accident 
or  injury  was  to  any  extent  attributable 
to  his  want  of  care  is  foV  the  jury,  and 
that  is  a  question  upon  the  determination 
of  which  the  result  of  the  action  depends. 
The  fact  of  care  or  carelessness  is  not  one 
involving  any  question  of  skill  or  science 
to  determine,  nor  is  it  founded  upon  any 
knowledge  peculiar  to  any  class  of  ])er- 
sons.  The  conduct  of  a  person  as  bearing 
upon  the  question  of  care  or  want  of  care 
is  susceptible  of  such  description  as  to 
convey  information  of  it  to  common  un- 
derstanding, and  to  enable  the  jury  intel- 
ligently to  determine  it  and  the  relation 
it  has  to  the  question  of  liability.  McCar- 
ragher  v.  Rogers,  120  N.  Y.  533  ;  Yeaw  v. 
Williams,  15  R.  I.  20.  So,  a  medical  ex- 
pert cannot  be  asked  whether,  on  all  the 
evidence  in  the  case,  the  accused  was  sane 
at  the  time  of  the  crime  committed.  Peo- 
ple V.  .McElvaine,  121  N.  Y.  258. 

Nor  can  he  state  that  in  his  opinion 
certain  acts  indicate  sanity  when  those 
acts  are  such  that  the  jury  can  judge  of 
them  equally  well  with  the  expert.  Peo- 
ple o.  P.arber,  115  N.  Y.  492.  Brakemen, 
baggage-masters,  and  conductors  are  not 
experts  as  to  the  coupling  of  cars  and  its 
dangers.  Muldowney  v.  111.  Cen.  R.  R., 
36  Iowa,  462;  Hamilton  v.  Desmoines  R. 
R.,  Id.  31.  See  also  Page  v.  Parker,  40 
N.  H.  47 ;  Pelamourges  v,  Clark,  9  Iowa, 
1.  An  expert  may  state  facts  which  are 
the  result  of  scientific  knowledge  or  pro- 
fessional skill  (Emerson  r.  Low.  Gas  Light 
Co.,  6  Allen  (Mass.),  148)  ;  but  they  can- 
not give  opinions  upon  matters  of  common 
knowledge.  White  v.  Ballou,  8  Allen 
(Mass.),  408;  N.   E.  Glass  Co.  v.  Lovell, 


7  Cush.  (Mass.)  321.  That  the  testimony 
of  experts  in  many  cases  is  of  little  value, 
is  universally  agreed.  Tracy  Peerage  Case, 
10  C.  &  F.  191  ;  Com.  v.  Andrews,  Pam- 
phlet, Sup.  Ct.  Mass.  1868  ;  Winans  v. 
N.  Y.  &  E.  R.  R.,  21  How.  (U.  S.)  101, 
Dickenson  v.  Fitchburg,  13  Gray  (Mass.), 
555.  See  further,  as  to  the  value  of  ex- 
pert testimony,  the  remarks  of  the  Court 
in  Thorn  v.  Worthing  Skating  Rink  Com- 
pany, L.  R.  6  Ch.  Div.  415  n. 

(c)  Hand  D.  Brook  line,  126  Mass.  324. 
A  deposition  containing  a  full  account  of 
the  injuries  and  bodily  condition  resulting 
therefrom  may  be  read  to  an  expert  and 
his  opinion  then  asked  as  to  the  cause. 
Gilman  v.  Strafford,  50  Vt.  723.  But  the 
opinions  of  experts  embodied  in  medical 
or  other  scientific  books  cannot  be  proved 
b)'  introducing  the  books  in  evidence. 
Com.  V.  Wilson,  1  Gray  (Mass.),  338  ; 
Com.  V.  Sturtivant,  117  Mass.  122  ;  Com. 
V.  Brown,  121  Id.  70  ;  Huffman  v.  Click, 
77  N.  C.  55.  And  the  weight  of  current 
authority  is  decidedly  against  the  admis- 
sion of  scientific  books  in  evidence  befoi'e 
a  jury  and  against  allowing  such  treatises 
to  be  read  from,  to  contradict  an  expert, 
generally.  Bloomington  v.  Shrock,  110 
111.  221  ;  Com.  v.  Sturtivant,  117  Mass. 
122  ;  Davis  i-.  State,  38  Md.  15  ;  State  v. 
O'Brien,  7  R.  I.  336.  Where,  however, 
an  expert  says  that  he  bases  his  opinion 
upon  the  work  of  a  particular  author,  that 
work  may  be  read  in  evidence  to  contra- 
dict him.  Connecticut  Mut.  Life  In.s.  Co. 
V.  Ellis,  89  111.  516  ;  Pinney  v.  Cahill, 
48  Mich.  584  ;  Ripon  v.  Bittel,  30  Wis. 
614;  Huffman  v.  Click,  77  X.  C.  55. 
Moreover,  it  is  a  proper  method  of  cross- 
examination,  in  order  to  test  the  learning 
of  a  witness  who  testifies  as  an  expert,  to 
refer  to  books  of  approved  authority  upon 
the  subjects  under  investigation,  and  ques- 
tion him  in  regard  to  them.  Hess  i;.  Low- 
rey,  122  Ind.  233  ;  Ripon  v.  Bittel,  30 
Wis.  614  :  Conn.  Mut.  Life  Ins.  Co.  v. 
Ellis,  89  111.  516  ;  Pinney  v.  Cahill,  48 
Mich.   584  ;    State  v.    "Woo<i,    53  N.   H. 


580  LAW   OF   EVIDENCE.  [PART   III. 

where  scientific  men  are  called  as  witnesses,  they  cannot  give 
their  opinions  as  to  the  general  merits  of  the  cause,  but  only  their 
opinions  upon  the  facts  proved."  And  if  the  facts  are  doubtful, 
and  remain  to  be  found  by  the  jury,  it  has  been  held  improper  to 
ask  an  expert  who  has  heard  the  evidence,  what  is  his  opinion 
upon  the  case  on  trial,  though  he  may  be  asked  his  opinion  upon 
a  similar  case,  hypothetically  stated. 8(/)  Nor  is  the  opinion  of 
a  medical  man  admissible,  that  a  particular  act,  for  which  a  pris- 
oner is  tried,  was  an  act  of  insanity.^  So,  the  subscribing 
witnesses  to  a  will  may  testify  their  opinions,  in  respect  to  the 
sanity  of  the  testator  at  the  time  of  executing  the  will,  though 
other  witnesses  can  speak  only  as  to  facts ;  for  the  law  has  placed 
the  subscribing  witnesses  about  the  testator,  to  ascertain  and 
judge  of  his  capacity.!*^  {g)     Seal  engravers  may  be  called  to  give 

■?  Jameson  v.  Drinkald,  12  Moore,  148.  But  professional  books,  or  books  of  science 
(c..  g.,  medical  books),  are  not  admissible  in  evidence  ;  though  professional  witnesses 
maj'  be  asked  the  grounds  of  their  judgment  and  opinion,  wliich  might  in  some  degree 
be  founded  on  these  books  as  a  part  of  their  general  knowledge.  Collier  v.  Simpson,  5 
C.  &  P.  73,  by  statute  in  Iowa.  Brodhead  v.  Wiltse,  35  Iowa,  429  ;  Bowman  v. 
Woods,  1  Iowa,  441. 

8  Sills  V.  Brown,  9  C.  &  P.  601. 

9  Rex  V.  Wright,  Russ.  &  R.  456. 

10  Chase  o.  Lincoln,  3  Mass.  237  ;  Poole  v.  Richardson,  Id.  330  ;  Rambler  v.  Tryon. 
7  S.  &  R.  90,  92  ;  Buckminster  v.  Perry,  4  Mass.  593  ;  Grant  v.  Thompson,  4  Conn. 

484.  Scientific  books  may  be  used  by  the  Reber  ■;;.  Herring,  115  Pa.  St.  608;  Hatha- 
attorney  in  framing  his  questions  to  the  way  v.  Nat.  L.  Ins.  Co.,  48  Vt.  335.  Be 
witness.  He  may  read  the  question  from  Ames's  Will,  51  Iowa,  596  ;  Dexter  v. 
such  a  book  to  the  witness  either  on  direct  Hall,  15  Wall.  ( U.  S. )  9  ;  Heald  v.  Thing, 
or  cross-examination.  Tompkins  v.  West,  45  Me.  392.  In  New  Yoik,the  hypotheti- 
56  Cmui.  485.  And  if  an  expert  has  cal  question  may  be  based  on  any  possible 
quoted  a  book,  the  hook  may  be  read  to  or  probable  range  of  the  evidence  in  the 
show  that  he  misquoted.  Ripon  v.  Bittel,  case.  Harnett  v.  Garvey,  66  N.  Y.  641. 
30  Wis.  614.  Of.  Davis  i;.  State,  38  Md.  But  purely  imaginary  or  abstract  questions, 
15.  See.  also  post,  §  497,  n.  Matters  of  assuming  facts  or  theories  for  which  there 
general  lu.story  may  be  assumed  as  within  is  no  foundation  in  evidence,  are  not  ad- 
the  knowledge  of  court  and  jury,  but  par-  missible  as  matter  of  right.  On  oross-ex- 
ticular  facts  relevant  to  the  cause  cannot  amination,  special  abstract  or  theoretical 
be  jiroved  by  reading  from  a  published  questions,  not  founded  iif>on  the  facts  of 
book,  nor  cnn  medicalbooks  or  those  upon  the  case  on  trial,  may  be  put,  foj-  the  pur- 
farming  be  cited  by  counsel  ;  but  medical  pose  of  testing  the  knowledge  and  informa- 
witnessc's  may  be  asked  or  cross-examined  tion  of  the  witness  as  to  the  subject  upon 
whether  they  have  read  a  particular  book;  which  he  has  been  examinetl,  and  his  com- 
and  hooks  of  standard  authority  in  litera-  petency  to  give  the  opinion  which  he  may 
ture  may  be  referred  toby  counsel;  in  order  have  pronounced  on  his  direct  examina- 
to  show  the  general  course  of  construction,  tion.  But  the  allowance  of  such  questions, 
and  explain  'the  sense  in  which  words  are  like  other  collateral  inquiries  touching 
used.  Darby  v.  Ouseley,  1  H.  &  N.  1.  only  the  credibility  of  the  witness,  rests 
{/)  The  proper  mode  of  taking  the  in  the  discretion  of  the  court,  and,  when 
opinion  of  an  expert,  when  he  has  no  the  discretion  is  fairly  exercised,  it  is  not 
personal  knowledge  of  the  facts  in  the  error  to  exclude  tliem.  People  v.  Augs- 
case,  is  bv  a  hypothetical  question.  Rey-  burv,  97  N.  Y.  505;  Dilleber  v.  Home 
iiolds  V.  Robinson,  64  N.  Y.  589.  When  Life  Ins.  Co.,  87  N.  Y.  79-88  ;  La  Beau 
a  hypothetical  question  is  put  to  an  expert  v.  People,  34  N.  Y.  223. 
witness,  the  question  should  be  based  on  (.7)  Tliis  is  settled  law  in  Massachusetts, 
what  has  already  been  proved  in  the  case,  with   the   exception    that    the    attending 


CHAP.    III.] 


EXAMINATION    OF    WITNESSES. 


581 


their  opinion  upon  an  impression  whether  it  was  made  from  an 
original  seal  or  from  an  impression.  ^^  So,  the  opinion  of 
an  artist  in  painting  is  evidence  of  the  genuineness  of  a  picture.  ^^ 
And  it  seems  that  the  genuineness  of  a  postmark  may  be  proved 
by  the  opinion  of  one  who  has  been  in  the  habit  of  receivin'j-  let- 

203.  And  see  Sheafe  v.  Rowe,  2  Lee,  415  ;  Kinleside  v.  Harrison,  2  Phil.  523  ;  Wean 
V.  Small,  11  S.  &  R.  141.  But  where  the  witness  has  had  oinwrtunities  for  knowing 
and  observing  the  conversation,  conduct,  and  manners  of  the  person  whose  sanitv  is  in 
question,  it  has  been  held  upon  grave  consideration,  that  the  witness  may  depose,  not 
only  to  particular  facts,  but  to  his  opinion  or  belief  as  to  the  sanity  of  the  party, 
formed  Irom  such  actual  observation.  Clary  v.  Clary,  2  Ired.  78.  Such  evidence  is 
also  admitted  in  the  ecclesiastical  courts.  See  Wheeler  v.  Alderson,  3  Hagir.  Eccl. 
574,  61)4,  605. 

"  l'>'r  Ld.  Mansfield,  in  Folkes  v.  Chadd,  3  Doug.  157. 

12  Ibid. 


physicians  of  the  testator  may  also  give 
opinions  as  to  his  sanity,  together  with  the 
acts  on  which  their  opinions  are  based. 
Hastings  v.  Rider,  99  Mass.  624,  and  in 
Maine,  Fayette  v.  Chester ville,  77  Me.  32. 
But  any  fads  which  any  person  observed 
at  that  time,  such  as  incoherence  in  talk, 
or  an  apparent  change  in  the  intelligence 
of  the  testator,  may  be  testified  to  by  such 
person,  though  he  be  not  a  subscribing 
witness  to  the  will  nor  a  medical  expert. 
Barker  v.  Comins,  110  Mass.  477.  And  it 
has  been  further  held  that  a  witness  who 
is  not  an  expert  in  mental  ailments  may  be 
asked  whether  a  person  has  failed,  in  iii- 
tslligence  in  a  given  period,  on  the  ground 
that  this  ([uestion  calls  for  a  fact,  the  re- 
sult of  observation  of  a  variety  of  details 
wiiich  it  would  be  impossible  to  reproduce 
before  the  jury.  Com.  v.  Brayman,  136 
Mass.  439  ;  Parker  y.  Boston  &"H.  Steam- 
boat Co.,  109  Mass.  449.  And  the  ten- 
dency in  Maine  has  been  to  allow  witnesses 
who  are  not  experts  a  good  deal  of  latitude 
in  the  expression  of  opinion,  short  of  declar- 
ing their  judgments  upon  the  point  mainly 
and  directly  in  issue.  Kent,  J.,  in  Robin- 
son J'.  Adams,  62  Me.  410,  says  :  "  Cer- 
tainly nothing  less  than  a  distinct  expres- 
sion of  the  opinion  of  the  witness,  given 
as  such  opinion  directly,  comes  within  our 
rule."  A  witness,  under  the  direction  of 
the  court,  may  be  permitted  to  describe 
peculiarities,  conditions  and  situations,  con- 
duct and  changes.  Fayette  v.  Chesterville, 
77  Me.  32.  In  Robinson  v.  Adams,  supra, 
it  was  deemed  not  objectionable  for  a  wit- 
ness to  say  th.at  she  did  not  observe  any 
failure  of  mind  and  nothing  peculiar  in  a 
person.  In  Stacy  v.  Port.  Pub.  Co.  68 
Me.  279,  it  was  held  admissible  for  a  wit- 
ness to  testify  that  a  person  was  intoxi- 
cated at  a  time  named.  The  rule  in  other 
States,  however,  is  that  non-experts  who 


have  had  opportunities  to  observe  a  person 
may  give  their  opinion  of  his  mental  capa- 
city, at  the  same  time  stating  their  reasons 
and  the  facts  observed  on  which  they  base 
their  opinions,  including  conversations 
as  a  part  of  the  observed  facts,  Chick- 
ering  v.  Brooks,  61  Vt.  554  ;  Hatha- 
way V.  National  L.  Ins.  Co.,  48  Vt.  335; 
Hardy  v.  Merrill,  56  N.  H.  227  ;  Dove  v. 
State,  3  Heisk.  (Tenn.)  348  ;  Johnson  v. 
Culver,  116  Ind.  289  ;  Butler  v.  St.  Louis 
L.  Ins.  Co. ,  45  Iowa,  93  ;  McClackey  v. 
State,  5  Tex.  App.  320.  In  New  York  it 
is  held  that  the  witness  can  only  state 
observed  acts,  and  say  whether  he  thought 
them  rational.  Howell  v.  Taylor,  18  N. 
N.  Supreme  Ct.  214  ;  Hewlett  v.  Wood, 
55  N.  Y.  634.  The  rule  on  this  point  is 
stated  in  Clapp  v.  FuUerton,  34  N.  Y.  190, 
as  follows  :  "  When  a  layman  is  examined 
as  to  facts  within  his  own  knowledge  and 
observation,  tending  to  show  the  sound- 
ness or  unsoundness  of  a  testator's  mind, 
he  may  characterize  as  rational  or  irrational 
the  acts  and  declarations  to  which  he  testi- 
fies." "  But  to  render  his  opinion  admis- 
sible, even  to  this  extent,  it  must  be  limited 
to  his  conclusions  from  the  specific  facts  he 
discloses."  The  rule  thus  expressed  was  fol- 
lowed and  approved  in  the  cases  of  O'Brien 
V.  People,  36  N  Y.  282  and  Hewlett  v. 
Wood,  55  N.  Y.  634 ;  and  affirmed  in  the 
case  of  Holcomb  v.  Holcomb,  95  N.  Y.  316 
and  in  the  latter  case  of  People  v.  Conroy 
97  N.  Y.  66,  the  above  cases  were  re- 
viewed and  approved.  It  may  therefore 
be  considered  established  law  in  that  State 
that  no  layman  as  a  witness  can  give  his 
opinion  of  the  mental  capacity  of  a  person; 
but  can  state  acts  and  declarations  seen 
and  heard  by  himself,  and  state  whether 
he  thought  tliL'm  rational  or  irrational. 
Holcomb  i\  Holcomb,  supra. 


582  LAW    OF    EVIDENCE.  [PART    III. 

ters  with  that  markJ^  in  an  action  for  breach  of  a  promise  to 
marry,  a  person  accustomed  to  observe  the  mutual  deportment  of 
the  parties  may  give  in  evidence  his  opinion  upon  the  question, 
whether  they  were  attached  to  each  other.  ^*  A  ship-builder  may 
give  his  opinion  as  to  the  seaworthiness  of  a  ship,  even  on  facts 
stated  by  others.  ^^  A  nautical  person  may  testify  his  opinion 
whether,  upon  the  facts  proved  by  the  plaintiff,  the  collision  of 
two  ships  could  have  been  avoided  by  proper  care  on  the  part  of 
the  defendant's  servants,  ^'^(/i)  Where  the  question  was,  whether 
a  bank,  which  had  been  erected  to  prevent  the  overflowing  of  the 
sea,  had  caused  the  choking  up  of  a  harbor,  the  opinions  of  scien- 
tific engineers,  as  to  the  effect  of  such  an  embankment  upon  the 
harbor,  were  held  admissible  in  evidence,  i'  A  secretary  of  a  fire 
insurance  company,  accustomed  to  examine  buildings  with  refer- 
ence to  the  insurance  of  them,  and  who,  as  a  county  commissioner, 
had  frequently  estimated  damages  occasioned  by  the  laying  out  of 
railroads  and  highways,  has  been  held  competent  to  testify  his 
opinion,  as  to  the  effect  of  laying  a  railroad  within  a  certain  dis- 
tance of  a  building,  upon  the  value  of  the  rent,  and  the  increase 
of  the  rate  of  insurance  against  fire.^^  Persons  accustomed  to 
observe  the  habits  of  certain  fish  have  been  permitted  to  give  in 
evidence  their  opinions  as  to  the  ability  of  the  fish  to  overcome 
certain  obstructions  in  the  rivers  which  they  were  accustomed  to 
ascend.  ^^  A  person  acquainted  for  many  years  with  a  certain 
stream,  its  rapidity  of  rise  in  times  of  freshet,  and  the  volume 
and  force  of  its  waters  in  a  certain  place,  may  give  his  opinions 

i»  Abbey  v.  Lill,  5  BinR.  299,  per  Gaselee,  J. 

1*  McKee  v.  Nelson,  4  Cowen,  355. 

15  Thornton  v.  Royal  Exch.  Assur.  Co.,  1  Peake,  25  ;  Chaurand  v.  Angerstein,  Id. 
43  ;  Beckwith  v.  Svdebotham,  1  Campb.  117.  So  of  nautical  men,  as  to  navigating  a 
ship.  Malton  v.  Nesbit,  1  C.  &  P.  70.  Upon  the  question,  whetber  certain  imple- 
ments were  part  of  the  necessary  tools  of  a  person's  trade,  the  opinions  of  witness  are 
not  admissible  ;  but  tiie  jury  are  to  determine  upon  the  facts  proved.  Whitmarsh  v. 
Angle,  3  Am.  Law  Jouni.  N.  s.  274. 

iti  Fenwfijk  v.  Bell,  1  Car.  &  Kir.  312. 

17  Folkes  V.  Cbadd,  3  Doug.  157. 

18  Webber  v.  Eastern  Railroad  Co.,  2  Met.  147.  Where  a  point  involving  questions 
of  practical  science  is  in  dispute  in  chancery,  the  court  will  advise  a  reference  of  it  to 
an  expert  in  that  science,  for  his  opinion  upon  the  facts  ;  which  will  be  adopted  by  the 
couit  as  the  ground  of  its  order.  Webb  i;.  Manchester  &  Leeds  Railw.  Co.,  4  My.  & 
C.  116,  120  ;  1  Railw.  Cas.  576. 

19  Cottrill  V.  Myrick,  3  Fairf.  222. 

'"  (h)  Cf.  The  City  of  Washington,  92  used  in  patent  cases.  In  such  cases,  the 
U.  S.  31.  So,  a  nautical  expert  may  be  expert  may  be  asked  whether  two  ma- 
asked  whether  it  would  be  safe  or  prudent  chines  are  identical  in  principle,  though 
for  a  tug-boat  to  tug  three  boats  abreast  this  is  the  main  question  in  the  cas*'. 
in  a  certain  place,  in  a  high  wind.  Trans-  Tillotsou  v.  Ramsay,  51  Vt.  309  ;  Parker 
portation  Line  v.  Hope,  95  U.  S.  297.  v.  Stiles,  5  McLean,  C.  C.  44,  64. 
The  opinions  of  experts  are  very  much 


CHAP.    III.] 


EXAMINATION    OP    WITNESSES. 


583 


as  to  the  sufficiency  of  a  dam  erected  in  that  place  to  resist 
the  force  of  the  flood. ^"^  A  practical  surveyor  may  exj)ress  his 
opinion,  whether  the  marks  on  trees,  piles  of  stone,  &c.,  were 
intended  as  monuments  of  boundaries ;  ^'  but  he  cannot  be  asked 
whether,  in  his  opinion,  from  the  objects  and  appearances  which 
he  saw  on  the  ground,  the  tract  he  surveyed  was  identical  with 
the  tract  marked  on  a  certain  diaarram.^^ 


2^  Porter  v.  Poquonoc  Man.  Co.,  17  Conn.  249. 

21  Davis  V.  Mason,  4  Pick.  156. 

22  Farar  v.  Warfield,  8  Mart.  N.  s.  695,  696.  So,  the  opinion  of  an  experienced 
seaman  has  been  received,  as  to  the  proper  stowage  of  a  cargo.  Price  v.  Powell,  3  Comst. 
322  ;  and  of  a  mason,  as  to  the  time  re(}uibite  for  the  walls  of  a  liouse  to  become  so 
dry  as  to  be  safe  for  human  habitation,  Smith  v.  Gugerty,  4  Barb.  S.  C.  614  ;  and  of 
a  master,  engineer,  and  builder  of  steamboats,  as  to  the  manner  of  a  collision,  in  view 
of  the  facts  jjroved.  The  Clipper  v.  Logan,  18  Ohio,  375.  But  mere  opinions  as  to  the 
amount  of  damages  are  not  ordinarily  to  be  received.  Harger  v.  Edmonds,  4  Barb. 
S.  C.  256;  Gilles  v.  O'Toole,  Id.  261.  See  also  Walker  v.  Protection  Ins.  Co.,  16 
Shepl.  317.  Nor  are  mere  opinions  admissible  respecting  the  value  of  property  iu 
common  use,  such  as  horses  and  wagons,  or  lands,  concerning  which  no  particular 
study  is  reijuircd,  or  skill  possessed.  Robertson  v.  Stark,  15  N.  H.  109  ;  Rochester  v. 
Chester,  3  N.  H.  349  ;  Peterborough  v.  Jaffrey,  6  N.  H.  462.  And  see  Whipple  v. 
Walpole,  10  N.  H.  130,  where  this  rule  is  expounded,  (i) 


{i)  The  following  note  on  the  limits  of 
exi)ert  testiuiony  was  in  the  previous  edi- 
tion of  this  work  :  But  see  Vandine  v. 
Burpee,  13  Met.  288  ;  Shaw  v.  Charles- 
town,  2  Gray,  107.  The  value  of  the 
reversion  of  land  over  which  a  railroad  is 
located  is  not  properly  provable  by  experts. 
Boston  &  Worcester  R.  Co.  v.  Old  Colony 
R.  Co.,  3  Allen,  142  ;  Mish  v.  Wood,  34 
Pa.  451.  Some  nice,  and  often  difhcult, 
questions  will  arise  in  regard  to  the  par- 
ticular matters  and  point  with  reference 
to  which  witnesses  may  be  allowed  to  give 
testimony  by  way  of  opinion.  For  some 
excellent  illustrations,  see  Redfield's  Rail- 
ways, 133,  134,  and  notes  ;  Wills,  part  1, 
§§  37-39.  But  it  is  not  practicable  to 
make  the  rule  more  precise  than  a  mere 
approximation  towards  definiteness.  Facts 
which  are  latent  in  themselves,  and  only 
discoverable  by  way  of  appearances  more 
or  less  symptomatic  of  the  existence  of  the 
main  fact,  may,  from  their  very  nature,  be 
shown  by  the  opinion  of  witnesses  as  to 
the  existence  of  such  ap])earances  or  symp- 
toms :  such  are  the  state  of  health  or  of 
the  affections,  as  already  stated.  Sanity 
is  a  question  of  the  same  character.  So, 
too,  upon  inquiries  as  to  the  state  or 
amount  of  one's  property,  when  the  facts 
are  too  numerous  and  evanescent  to  be 
given  in  detail,  those  acquainted  with  the 
facts  are  allowed  to  express  an  opinion 
which  is  the  mere  grouping  of  the  facts. 
So,  too,  as  to  the  marketable  condition 
and   value  of  property,   and    many   other 


questions  where  it  is  not  practicable  to 
give  more  definite  knowledge,  opinions  are 
received.  In  some  cases,  these  opinions 
must  come  from  experts,  who  have  ac- 
(piired  special  skill  in  detecting  the  con- 
nection between  certain  external  symptoms 
and  their  latent  causes ;  and  in  other 
cases,  all  persons  are  supposed  to  have 
such  knowledge  and  experience  as  to  enti- 
tle their  opinions  to  be  weighed  by  tlie 
jury.  The  testimony  of  expert  is  neces- 
sary upon  all  such  questions  as  require 
special  study  and  experience  in  order  to 
form  reliable  judgments.  The  distinction 
is  faiily  enough  illustrated  by  the  (jues- 
tion  of  sickness  or  health.  All  witnesses 
ai'e  competent  to  form  a  reliable  o[)inion 
whether  one  whom  they  have  opportunity 
to  observe  appears  to  be  sick  or  well  at 
the  time,  or  whether  one  is  seriously  dis- 
abled by  a  wound  or  a  blow.  But  if  the 
injury  were  more  definite,  as  to  the  par- 
ticular state  of  disease  under  which  one  is 
laboring,  and  its  curable  or  fatal  charac- 
ter ;  or  as  to  the  dangerous  or  fatal  char- 
acter of  a  wound  or  blow  or  in  what 
particular  mode,  or  with  what  species  of 
weapon  or  instrument,  such  blow  or  wound 
was  inflicted  —  special  study,  observa- 
tion, and  experience  might  be  rei|uisite  in 
order  to  express  an  opinion  entitled  to  the 
dignity  of  being  regarded  as  evidence.  In 
Ashland  v.  Marlborough,  99  Mass.  47,  it 
was  held  that  a  non-expert  may  testify  to 
the  acts  and  appearance  of  another  vvlii;h 
indicate  disease  or  disability,   but  cannot 


584 


LAW    OF    EVIDENCE. 


[part    III. 


§  440  h.   Opinions  of  biased  witnesses.      In  weighing  the  testi- 
mony of  biased  witnesses,  however,  a  distinction  is  observed  be- 

give  his  opinion  on  the  subject.  But  in 
Parker  v.  B.  &  H.  Steamboat  Co.,  109 
Mass.  449,  the  same  court  held  that  a 
non-expert  might  testify  as  to  the  com- 
parative health  of  a  person.  This  distinc- 
tion between  testifying  to  an  appearance 
of  disease  and  to  an  opinion  of  it  is  cer- 
tainly tine.  Wliat  appear  to  one  in  such 
cases  is  scarcely  different  from  his  opinion. 
Com.  V.  Cunningham,  104  Mass.  545  ; 
Com.  V.  Dorsey,  103  Mass.  4]-2.  And 
subsequently  tlie  same  court  (Corn.  v. 
Sturtivant,  117  Mass.  122),  after  a  care- 
ful examination  of  numerous  cases,  arrived 
at  the  conclusion  that  "common  observ- 
ers, having  sjiecial  opportunities  for  ob- 
servation, may  testify  to  their  opinions  as 
conclusions  of  fact,  although  they  are  not 
experts,  if  the  subject-matter  to  which  the 
testimony  relates  cannot  be  reproduced  or 
described  to  the  jury  ])recisely  as  it  ap- 
jieared  to  the  witness  at  the  time,  and  the 
facts  upon  which  the  witness  is  called  to 
exj)ress  his  opinion  are  such  as  men  in 
general  are  capable  of  comfirehending." 
Sydleman  v.  Beckwith,  43  Com.  9.  Opin- 
ions have  been  held  admissible  as  to  the 
origin  of  sounds  (State  v.  Shinborn,  46 
N.  H.  497)  ;  as  to  the  health  of  another 
(Wilkinson  v.  Moseley,  30  Ala.  562  ;  Bar- 
ker r.  Coleman,  35  Ala.  221)  ;  as  to  the 
condition  of  another's  eyesight  (Adams 
V.  People,  63  N.  Y.  Ct.  of  App.  621)  ; 
whether  certain  hairs  are  human  (Com.  v. 
Dorsey,  103  Mass.  412);  the  meaning  of 
certain  gestures,  or  tones  of  voice,  and  to 
whom  they  apply  (Leonard  v.  Allen,  11 
Cush.  (Mass.)  241  ;  and  see  post,  vol.  ii. 
§  417,  n.)  ;  the  correspondence  between 
boots  and  footprints  (Com.  v.  Pope,  103 
Mass.  440) ;  that  two  pieces  of  wood  are 
parts  of  the  same  stick  (Com.  v.  Choate, 
105  Mass.  451)  ;  but  not  that  a  piece  of 
paper  looks  as  if  it  had  been  used  as  a 
wadding  for  a  gun,  if  the  paper  is  pro- 
duced in  court  (People  v.  Manke,  78  N. 
Y.  611)  ;  that  a  hoise  appears  to  be  dis- 
eased in  the  foot  (31  N.  H.  485)  ;  or  to 
be  frightened  or  sulky  (46  Id.  23)  ;  or  that 
a  person  appears  to  feel  sail  (Culver  v. 
Dwight,  6  Cray  (Mass.)  444)  ;  or  to  be 
intoxicated  (People  v.  Eastwood,  14  N.  Y. 
562)  ;  or  as  to  the  qualities  of  a  horse 
(State  V.  Avery,  44  N.  H.  392)  ;  or  of 
one's  pecuniary  responsiliility  (J3ank  of 
Middlebury  v.  Rutland,  33  Vt.  414).  So, 
also,  as  to  values  and  prices  (Nellis  v.  Mc- 
Carn,  35  Barb.  (N.  Y.)  115;  Derby  v. 
Gallup.  5  Minn.  119  ;  Brady  v.  Brady,  8 
Allen  (Mass.),  101;  McDonald  r.  Christie, 


42  Barb.  N.  Y.)  36)  ;  so,  also,  opinions 
as  to  times  and  distances  are  admissible 
(Campbell  v.  State,  23  Ala.  44)  ;  but  not 
an  opinion  as  to  how  far  a  conversation, 
said  to  have  been  carried  on  in  an  ordinary 
tone,  but  not  heard  by  the  witness,  could 
be  heard  (Hardenburgh  v.  Cockroft,  5 
Daly,  N.  Y.  C.  C.  P.  79,  1874)  ;  nor  what 
is  the  highest  part  of  a  hill.  Hovey  v. 
Sawyer,  5  Allen  (Mass.),  554.  A  witness 
may  also  give  his  opinion  as  to  the  age  of 
a  person  who  pleads  infancy  in  an  action 
on  a  contract,  the  witness  having  had  an 
opportunity  to  observe  the  appearance  of 
the  ])er,son  at  the  time  the  contract  was 
made.  Ben.son  v.  McFadden,  50  Ind. 
431.  Whether  a  non-expert  is  qualified 
to  give  an  oiiinion  is  for  the  judge.  A 
farmer  is  qnalified  to  give  an  o{)inion  as  to 
the  ett'ect  of  constructing  a  railroad  through 
the  farm  of  his  neighbor,  upon  the  con- 
venience and  expense  of  carrying  it  on. 
Tucker  v.  Mass.  Cent.  R.  R.,  118  Mass. 
546.  And,  generally,  opinions,  like  other 
testimony,  are  competent  in  the  class  of 
cases  in  whi(^h  they  are  the  best  testi- 
mony ;  as  where  a  mere  description,  with- 
out an  opinion,  would  genevallj'  convey  a 
veiy  imperfect  idea  of  the  force,  meaning, 
and  inherent  character  of  the  things  de- 
scribed. Non-experts  may  give  their 
opinions  on  questions  of  identity,  resem- 
blance, appaieiit  condition  of  body  or 
mind,  intoxication,  insanity,  sickness, 
health,  value,  conduct,  and  bearing, 
whether  friendly  or  hostile,  and  the  like. 
Doe,  J.,  in  State  v.  Pike,  49  Tv.  H.  399, 
a  very  elaborate  and  valuable  opinion.  In 
Hamilton  v.  People,  Sup.  Ct.  Mich.,  13 
Am.  L.  Reg.  N.  s.  679,  it  is  held,  upon  the 
same  ground,  that  the  opinion  of  one  wit- 
ness as  to  the  credibility  of  another  is 
admissible.  A  medical  expert  witness  may 
also  testify  as  to  the  future  results  of  an  in- 
jury, or  what  he  considers  will  necessarily 
or  probably  result,  but  not  as  to  possibili- 
ties of  results,  for  the  latter  evidence  is 
speculative  in  character  and  incompetent. 
Strohm  v.  New  York,  Lake  Erie  &  W.  R. 
R.  96  N.  Y.  305.  It  is  mere  speculation 
as  to  what  may  be  the  future  condition  of 
the  patient  resulting  from  the  injury,  and 
does  not  represent  the  judgment  of  the  ex- 
pert as  to  what  will  be  its  effect.  But 
evidence  of  the  probalile  results  of  an  in- 
jury is  competent.  Lincoln  v.  Saratoga 
&c.  R.  R.  Co. ,  23  Wend.  425  ;  Filer  v. 
New  York  Cent.  R.  R.  Co.,  49  N.  Y.  42. 
Evidence  of  that  character  is  dependent 
upon  the  opinion  of  medical  experts,  and 


CHAP.    III.]  EXAMINATION    OP    WITNESSES.  685 

tween  matters  of  opinion  and  matters  of  fact.  Such  a  witness,  it 
is  said,  is  to  be  distrusted  when  he  speaks  to  matters  of  opinion; 
but  in  matters  of  fact^  his  testimony  is  to  receive  a  degree  of 
credit  in  proportion  to  the  probability  of  the  transaction,  the 
absence  or  extent  of  contradictory  proof,  and  the  general  tone  of 
his  evidence. "* 

§  441.  opinion  as  to  legal  or  moral  obligations.  But  Avitnesses 
are  not  receivable  to  state  their  views  on  matters  of  legal  or  moral 
obligation^  nor  on  the  manner  in  which  other  persons  would  prob- 
ably be  influenced,  if  the  ])arties  acted  in  one  way  rather  than  in 
another.^  (a)  Therefore  the  opinions  of  medical  practitioners 
upon  the  question,  whether  a  certain  physician  had  honorably 
and  faithfully  discharged  his  duty  to  his  medical  brethren,  have 
been  rejected.  ^  So  the  opinion  of  a  person  conversant  with  the 
business  of  insurance,  upon  the  question,  whether  certain  parts  of 
a  letter,  which  the  broker  of  the  insured  had  received,  but  which 
he  suppressed  when  reading  the  letter  to  the  underwriters,  were 

*  Lofikwood  V.  Lockwood,  2  Curt.  281  ;  Dillon  v.  Dillon,  3  Curt.  96,  102. 

1  Per  \a\.  Denniau,  C.  J.,  in  Campbell  v.  Kickards,  5  B.  &  Ad.  840  ;  s.  c.  2  N.  & 
M.  542.  Hut  where  a  libel  consisted  in  imputing  to  the  plaiutitf  that  he  acted  dis- 
honorably, in  withdrawing  a  horse  which  had  been  entered  for  a  race  ;  and  he  proved 
by  a  witness  that  the  rules  of  the  jockey  club  of  which  he  was  a  member  permitted 
owners  to  withdraw  their  liorses  before  the  race  was  run  ;  it  was  held  that  the  witness, 
on  cross-examination,  might  be  asked  whether  such  conduct  as  he  had  described  as 
lawful  under  those  rules  would  not  be  regarded  by  him  as  dishonorable.  Greville  v. 
Chapman,  .5  Q.  B.  731. 

2  Ramadge  v.  Ryan,  9  Bing.  333. 

generally   is   not  susceptible    of  absolute  Burt  v.    Wigglesworth,    117    Mass.    302, 

certainty  ;  but  the  judgment  of  comjietent  though  such  evidence  was  rejected,  it  was 

physicians  as  to  the  probable  conseijuences  rejected  because  the  evidence  was  as  to 

of  an  injury  comes  within  the  rule  of  rea-  what  the  land  would  be  worth  if  certain 

sonable  certainty,  and  therefore  of  admis-  buildings  were  erected  on  it,  i.  e.  it  was  a 

sibility.     Turner  v.  Newburgh,  109  N.  Y.  mere  guess  at  a  future  value.     But  in  the 

301  ;  Griswold  v.   New  York   Cent.  &  H.  later  case  of  Roberts  r.  Boston,  149  Mass. 

R.  R.  R.  Co.,  115  N.  Y.  61.  354,  the  opinion  of  an  expert  shown  to 

Expert  testimony  is  admissible  on  the  have  knowledge  of  the  values  of  land  in 

value  of  lands,  especially  in  cities  where  the  immediate  vicinity  was  rejected.     Cf. 

values  vary  so  much  according  to  locality,  Hanover  Water  Co.  v.  Asliland  Iron  Co., 

that  it  is 'fairly  a  subject  of  special  study  84  Pa.  St.  279;    Penn.   R.  R.  v.  Bunnell, 

to  learn  the  values.     Griswold  v.  Gebbie",  81    Id.  414  ;    Stone   v.   Covell,    29   Mich. 

126  Pa.  St.  366;    Huntington   o.  Attrill,  359;    Swan  v.  Middlesex  Co.,  101  Mass. 

118   N.  Y.  379.     But  in  testifying  as  to  173. 

the  valu;' of  propertv,  an  expert  who  bases  (n)    Bennett    v.    Clemence,     6    Allen 

hi.",  knowledge  solely  upon  transactions  in  Mass.),    10.      On   the  general   subject  of 

similar  property  not  situated   in  the  vi-  expert   testimony,   see   Rogers  on   Expert 

cinity,  is  not  competent  to  testify.     The  Testimony.     Evidence  to  the  effect  that 

(piali'tication  of  the  expert    depends  upon  members  of  the  legal  profession,  familiar 

his  knowledge  of  the  value  of  the  particu-  with  .such  questions,  regard  a  title  non- 

lar  thing  in  question.     And  this  may  be  marketable,  is  not  admissible.     The  ques- 

inferred  by  him  from  the  value  of  similar  tion  is  one  for  the  court  to  answer,  and 

property  in  the  vicinity,  but  not  from  the  the  opinion  of  conveyancers  against  it  is 

value  oif  similar  property  in  different  loca-  quite    immaterial.       Moser   v.    Cochrane, 

tions.     Huntington  v.  Attrill,  supra.     In  107  N.  Y.  39. 


586  LAW    OP    EVIDENCE.  [PART    III, 

or  were  not  material  to  be  communicated,  has  been  held  inad- 
missible ;  ^  for,  whether  a  particular  fact  was  material  or  not  in 
the  particular  case  is  a  question  for  the  jury  to  decide  under  the 
circumstances.'*  (i)  Neither  can  a  witness  be  asked,  what  would 
have  been  his  own  conduct  in  the  particular  case.^  But  in  an 
action  against  a  broker  for  negligence,  in  not  procuring  the  need- 
ful alterations  in  a  policy  of  insurance,  it  has  been  held,  that 
other  brokers  might  be  called  to  say,  looking  at  the  policy,  the 
invoices,  and  the  letter  of  instructions,  what  alterations  a  skilful 
broker  ought  to  have  made.^((?) 

8  Caiiifibcll  V.  RickarJs,  5  B.  &  Ad.  840,  in  which  the  case  of  Rickanis  v.  Murdock, 
10  B.  &  C.  627,  and  certain  other  decisions  to  the  contrary,  are  considered  and  over- 
ruled. See  accordingly,  Carter  v.  Boehm,  3  Burr.  1905,  19i8  ;  Durrell  v.  Bederlev,  1 
Holt's  Cas.  283  ;  Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72,  79. 

1  Rawlius  V.  Desborough,  1  M.  &  Rob.  329  ;  Westbury  v.  Aberdein,  2  M.  &  W. 
267.     • 

•'•  Berthon  v.  Loughnian,  2  Stark.  258. 

"  Chapman  v.  Walton,  10  Bing.  57.  Upon  the  question,  whether  the  opinion  of  a 
person,  conversant  with  the  business  of  insurance,  is  admissible,  to  show  that  the  rate 
of  the  premium  would  have  been  affected  by  the  communication  of  particular  facts, 
there  has  been  much  diversity  of  opinion  among  judges,  and  the  cases  are  not  easily 
reconciled.  See  Phil.  &  Am.  on  Evid.  899  ;  2  Stark.  Evid.  886.  But  the  later  deci- 
sions are  against  the  admissibility  of  the  testimony,  as  a  general  rule.  See  Campbell 
V.  Rickards,  5  B.  &  Ad.  840.  Perhaps  the  following  obseivations  of  Mr.  Starkie,  on 
this  subject,  will  be  found  to  indicate  the  true  principle  of  dis('rimination  among  the 
cases  which  call  for  the  aj)plication  of  the  rule.  "  Wlienever  the  fixing  the  fair  price 
and  value  upon  a  contraitt  to  insure  is  matter  of  skill  and  judgment,  acting  according 
to  certain  general  rules  and  principles  of  calculation,  applied  to  the  particular  circum- 
stances of  each  individual  case,  it  seems  to  be  matter  of  evidence  to  show  whether  the 
facts  suppressed  would  have  been  noticed  as  a  term  in  the  })articular  calculation.  It 
would  not  be  difficult  to  propound  instances,  in  which  the  materiality  of  the  fact  with- 
held would  be  a  question  of  pure  science ;  in  other  instances,  it  is  very  possible  that 
mere  common  sense,  indejiendent  of  any  peculiar  skill  or  e.xpei'ience,  would  be  sufficient 
to  comprehend  that  the  disclosure  was  material,  and  its  suppression  fraudulent, 
although  not  to  understand  to  what  extent  the  risk  was  increased  by  that  fact.  In 
intermediate  cases,  it  seems  to  be  difficult  in  ]irinciple  wholly  to  exclude  the  evidence, 
although  its  importance  may  vary  exceedingly  according  to  circumstances."  See  2 
Stark.   Evid.  887,  888  (3d  London  ed.),  649 '(6th  Am.  ed.). 

{b)  So,  as  the  question  of  due  care  or  ous  condition  of  the  road  (Stillwater  Turn- 
negligence  is  for  the  jur)',  the  witness  pike  Co.  v.  Coover,  26  Ohio  St.  520)  ; 
cannot  be  asked  whether  a  party  to  a  suit  or  whether  a  person  accused  of  homicide, 
exercised  due  care  (Hopkins  v.  Indian.  &  who  sets  up  self-defence,  was  in  imminent 
St.  Louis  R.  R.  Co.,  78  111.  32);  or  danger  (State  v.  Rhodes,  29  Id.  171),  as 
whether  a  person  is  a  careful  driver  (Mor-  these  are  questions  for  the  jury, 
ris  V.  East  Haven,  41  Conn.  252)  ;  nor,  (c)  The  following  note  is  taken  from 
in  an  action  for  assault  and  battery.  Judge  May's  edition  of  this  book  :  In 
whether  the  defendant's  act  was  justijia-  Joyce  v.  Maine  Insurance  Co.,  45  Me.  168, 
ble  (Barts  v.  Morse,  126  Mass.  226)  ;  nor,  it  was  decided  that  an  expert  in  insurance 
.after  testifying  in  answer  to  a  hypothet-  matters  could  not  be  permitted  to  give  his 
ical  question,  that  he  should  consider  the  opinion  whether  "  the  rate  of  premium  for 
testator  of  sound  mind,  can  he  testify  di-  insurance  would  be  increased  by  vacating 
rectly  that  he  considered  the  testator  com-  a  dwelling-house."  The  condition,  made 
petent  to  make  a  will,  ilay  v.  Bradlee,  part  of  the  contract,  made  the  insurance 
127  Id.  414.  void  and  of  no  effect  if  the  risk  should  be 

So,   it   is   improper   to   ask   a  witness  increased  by  any  means  whatever  within 

whether  a  road  was  (te?t7c?-n?(,9,  in  an  action  the  control  of  the  insured.     It  was  said 

for  personal  injuries  caused  by  the  danger-  not  to  be  a  question  of  science  or  skill.  So 


CHAP. 


I...] 


EXAMINATION    OF    WITNESSES. 


587 


§  442.  Party  vouches  for  his  witness.  When  a  pai'ty  offers  a 
witness  in  proof  of  his  cause,  he  thereby,  in  general,  represents 
him  as  worthy  of  ])elief.  He  is  presumed  to  know  the  character 
of  the  witnesses  he  adduces ;  and  having  thus  presented  them  to 
the  court,  the  law  will  not  permit  the  party  afterwards  to  impeach 
their  general  reputation  for  truth,  or  to  impugn  their  credibility 
by  general  evidence,  tending  to  show  them  to  be  unworthy  of  be- 
lief. For  this  would  enable  him  to  destroy  the  witness  if  he 
spoke  against  him,  and  to  make  him  a  good  witness  if  he  spoke 
for  him,  with  the  means  in  his  hand  of  destroying  his  credit  if  he 
spoke  against  hiin.^  (a) 

1  Bull.  X.  P.  297  ;  Ewer  v.  Ambrose,  3  B.  &  C.  746  ;  Stockton  v.  Deniuth,  7  Watts, 
39  ;  Smith  v.  Price,  8  Watts,  447.  But  where  a  witness  testified  to  the  jury,  contrary 
to  her  statement  in  a  former  deposition  r^iven  in  the  same  cause,  it  was  held  not  im- 
proper tor  thu  judge  to  order  the  deposition  to  be  read,  in  order  to  impeach  the  credit 
of  the  witness.     Rex  v.  Oldroyd,  Russ.  &  lly.  887. 


it  has  been  held,  and  for  a  like  reason, 
that,  under  substantially  similar  terms  of 
the  contract,  insurance  experts  could  not 
be  permitted  to  testify  whether  "  leaving 
a  dwelling-house  unoccupied  for  a  consid- 
erable length  of  time  "  was  an  increase  of 
risk.  Luce  it.  Dorchester  Mut.  Fire  Ins. 
Co.,  105  Mass.  298;  Cannell  v.  Phcenix 
Ins.  Co.,  59  Me.  582.  But  in  Foyy.  /Etna 
Ins.  Co.,  3  Allen  (N.  B.),  29,  such  evi- 
dence was  admitted  without  objection. 
And  generally  their  opinions  as  to  the 
materiality  of  certain  facts  to  the  risk  aie 
incompetent.  Milwaukee,  &c.  Ry.  Co. 
V.  Kellogg,  94  U.  S.  469  ;  Jetferson  Ins. 
Co.  V.  I'otheal,  7  Wend.  (N.  Y. )  72; 
Hartford  Prot.  Ins.  Co.  v.  Harmer,  2  Ohio 
St.  452  ;  Hill  v.  Lafayette  Ins.  Co.,  2 
Mich.  476.  Contra,  Kern  v.  South  St. 
Louis  Mut.  Fire  Ins.  Co.,  40  Mo.  19.  But 
in  Schenck  v.  Mercer  County  Mutual  In- 
surance Company,  4  Zab.  (N.  J.)  447,  a 
fireman  was  allowed  to  testify  whether  the 
risk  of  fire  was  increased  by  certain  alter- 
ations. But  it  was  decided  in  the  case 
last  cited  from  Massachusetts,  that  tlie 
question  whether  such  leaving  a  dwelling- 
house  unoccupied  is  material  to  the  risk, 
might  be  tested  by  the  question  whether 
underwriters  generally  would  in  such  case 
charge  a  higher  premium.  And  see  also 
Merriam  v.  Middlesex  Ins.  Co.,  21  Pick. 
162  ;  Daniels  v.  Hud.son  River  Fire  Ins. 
Co.,  12  Cush.  (Mass.)  416.  The  first  ques- 
tion was  said  to  be  as  to  a  subject  within 
common  knowledge,  as  to  which  opinions 
were  inadmissible,  while  the  latter  related 
to  a  matter  which  was  within  the  y)eculiar 
knowledge  of  persons  versed  in  the  busi- 


ness of  insurance.  The  distinction,  though 
fine,  seems  to  be  sound  ;  it  is  between  an 
inadmissible  opinion  and  an  admissible 
fact.  The  inference  of  increased  risk, 
based  upon  the  fact  known  to  him  of  a 
higher  rate  of  premium  in  such  cases,  can- 
not be  stated  by  the  witness  ;  but  he  may 
state  the  fact,  which  is  to  him  a  matter  of 
special  knowledge,  and  from  this  the  jury 
may  draw  the  inference  of  increased  risk. 
That  persons  having  this  peculiar  knowl- 
edge may  testify  thereto  is  a  well-settled 
rule  of  evidence.  Webber  v.  Eastern  Rail- 
road Co.,  2  Met.  (Mass.)  147  ;  Mulry  b. 
Mohawk  Valley  Ins.  Co.,  5  Gray  (Mass.), 
541  ;  Hawes  v.  New  England  Ins.  Co.,  2 
Curtis,  C.  Ct.  229  ;  Lyman  v.  State  Ins. 
Co.,  14  Allen  (Mass.),  329  ;  llartmait  v. 
Keystone  Ins.  Co.,  21  Pa.  St.  466  ;  Quin 
V.  National  Ass.  Co.,  Jones  &('ary  (Irish), 
316.  In  life  insurance,  physicians  may 
give  their  opinion  as  to  the  causes  of  dis- 
ease, and  whether  a  particular  disease  or 
infirmity  or  injury  or  habit  is  the  cause  of 
death,  or  tends  to  shorten  life  (Miller  v. 
Mut.  Ben.  Life  Ins.  Co.,  31  Iowa,  216)  ; 
but  neither  they  nor  experts  in  insuiance 
can  be  allowed  to  give  their  opiiuon  upon 
the  question  whether  the  applicant  was 
an  insurable  subject,  nor  whether  cer- 
tain facts  render  the  subject  uninsurable. 
Rawls  V.  Am.  Life  Ins.  Co.,  36  Barb.  357  ; 
s.  c.  affirmed  27  N.  Y.  282. 

(a)  Sewell  v.  Gardnei-,  48  Md.  182  ; 
Pollock  V.  Pollock,  71  N.  Y.  137.  In  a 
recent  case  in  New  York,  Becker  v.  Koch, 
104  N.  Y.  400,  this  rule  was  examined 
with  care,  and  the  court  said  that  the  rule 
only  prohibits  this  impeachment  in  three 


688  LAW    OF    EVIDENCE.  [PART   III. 

§  443.  Errceptions.  But  to  this  general  rule  there  are  some 
exceptions.  For,  where  the  witness  is  not  one  of  the  party's  own 
selection,  but  is  one  whom  the  law  obliges  him  to  call,  such  as  the 
subscribing  witness  to  a  deed,  or  a  will,  or  the  like ;  here  he  can 
hardly  be  considered  as  the  witness  of  the  party  calling  him,  and 
therefore,  as  it  seems,  his  character  for  truth  may  be  generally 
impeached.  ^  (a)  But,  however  this  may  be,  it  is  exceedingly  clear 
that  the  party,  calling  a  witness,  is  not  precluded  from  proving 
the  truth  of  any  particular  fact,  by  any  other  competent  testimony, 
in  direct  contradiction  to  what  such  witness  may  have  testified; 
and  this  not  only  where  it  appears  that  the  witness  was  innocently 
mistaken,  but  even  where  the  evidence  may  collaterally  have  the 
effect  of  showing  that  he  was  generally  unworthy  of  belief.2(/>) 

§  444.  Previous  inconsistent  statements.  Whether  it  be  competent 
for  a  party  to  prove  that  a  witness  whom  he  has  called,  and  Avhose 
testimony  is  unfavorable  to  his  cause,  had  previously  stated  the 
facts  in  a  differe?it  manner,  is  a  question  upon  which  there  exists 
some  diversity  of  opinion.  On  the  one  hand,  it  is  urged,  that 
a  party  is  not  to  be  sacrificed  to  his  witness ;  that  he  is  not  rep- 

1  Lowe  V.  Jolliffe,  1  W.  Bl.  365  ;  Poth.  on  Obi.  by  Evans,  vol.  ii.  p.  232,  App.  No. 
16  ;  Williams  v.  Walker,  2  Rich.  Eij.  291.  And  see  Goodtitle  v.  Clayton,  4  Burr. 
3224  ;  Cowden  v.  Reynolds,  12  S.  &  R.  281.  But  see  Whitaker  v.  Salisbury,  15  Pick. 
644,  545  ;  Dennett  v.  Dow,  5  Shepl.  19  ;  Brown  v.  Bellows,  4  Pick.  179. 

2  Bull.  N.  P.  297  ;  Alexander  v.  Gibson,  2  Cam{)b.  555  ;  Richardson  i;.  Allan,  2 
Stark.  334  ;  Ewer  v.  Ambrose,  3  B.  &  C.  746  ;  6  D.  &  R.  127  ;  s.  c.  4  B.  &  C.  25, 
Friedlander  v.  London  Assiir.  Co.,  4  B.  &  Ad.  193;  Lawrence  v.  Barker,  5  Wend.  305, 
per  Savage,  C.  J.  ;  Cowden  v.  Reynolds,  12  S.  &  R.  281  ;  Bradley  v.  Ricardo,  8  Bing. 
57  ;  Jackson  v.  Leek,  12  Wend.  105  ;  Stockton  v.  Deinuth,  7  Watts,  39  ;  Brown  v. 
Bdlows,  4  Pick.  179,  194;  Perry  v.  Massev,  1  Bail.  32  ;  Spencer  v.  White,  1  Ired. 
239  ;  Dennett  v.  Dow,  5  Shepl.  19  ;  McArithur  v.  Hurlbert,  21  Wend.  190  ;  Attor,- 
Gen.  V.  Hitchcock,  1  Exch.  91,  11  Jur.  478  ;  The  Lochlibo,  14  Jur.  792  ;  1  Eng.  L.  & 
E(j.  645. 

cases,  viz.  :  (1)  the  calling  of  witnesses  to  is  the  truth.     When  one  i)arty  to  a  suit  la 

impeach  the  general  character  of  the  wit-  empowered  by  statute  to  take   the  testi- 

ness  ;  (2)  the  proof  of  prior  contradictory  mony   of  the    other   party,   he   generally 

statements  by  him  ;  and  (3)  a  contradic-  makes  the  other  party  his  witness  to  that 

tion  of  the  witness  by  another  where  the  extent,  and  cannot  impeach  his  credibility, 

only  effect  is  to  impeach,  and  not  to  give  Warren  v.  Gabriel,  51  Ala.  235. 
any  material  evidence  upon  any  issue  in  (a)  Shorey  v.  Hursey,  32  Me.  579  ;  Ed- 

the  case.     And  in  a  later  case,  Cross  v,  wards  v.   Crenshaw,    30   Mo.    App.   510  ; 

Cross,  108  N.  Y.  629,  the  same  rule  was  Crocker  r.  Agenbroad,  122  Ind.  587. 
applied,  and  it  was  held  that  by  calling  (b)  Cross  v.  Cross,  108  N.  Y.  629  ;  Bab- 

one  as  a  witness,  the   party  calling  him  cock  v.  People,  13  Col.  515  ;  Artz  v.  Chi- 

does  not  become  forced  to  admit  as  true  cago,  R.  I.  &  P.  R.  R.  Co.,  44  Iowa,  284  ; 

every  fact  to  which  he  testifies  ;  and,  that  Skipper  v.  State,  59   Ga.   63 ;  Warren  v. 

wiiile  not  at  liberty  to  impeach  his  charac-  Gabriel,  51  Ala.  235  ;  Gibbs  v.  Huyler,  41 

ter  for  truth  he  was  at  liberty  to  dispute  N.  Y.  Super.  Ct.  190  ;  Pollock  v.  Pollock, 

specific  facts  sworn  to  by  the  witness,  and  71  N.  Y.  137  ;  Coulter  v.  American   Ex- 

to  confront  his  statement  of  the  facts  with  press  Co.,  56  N.  Y.  585  ;  Hall  v.  Hough- 

the  facts  and  circumstances  of  conduct,  ton,  37   Me.  411  ;  Seavy  v.   Dearborn,  19 

letters,  and  declarations,  and  let  the  jury  N.    H.    351  ;    Brown   v.   Wood,    19    Mo. 

determine  from  the  whole  evidence  which  475. 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.  589 

resented  by  him,  nor  identified  with  him;  and  that  ho  ouj^ht  not 
to  be  entrapped  by  the  arts  of  a  designing  man,  perhaps  in  the 
interest  of  his  adversary.  ^  On  the  other  liand,  it  is  said,  that  to 
admit  siioh  proof  would  enable  the  party  to  get  the  naked  declara- 
tions of  a  witness  before  the  jury,  operating,  in  fact,  as  inde- 
pendent evidence;  and  this,  too,  even  where  the  declarations 
were  made  out  of  court,  by  collusion,  for  the  purpose  of  being 
thus  introduced.2(a)  But  the  weight  of  authority  seems  in  favor 
of  admitting  the  party  to  show  that  the  evidence  has  taken  him 
by  surprise,  and  is  contrary  to  the  examination  of  the  witness 
preparatory  to  the  trial,  or  to  what  the  party  had  reason  to  believe 
he  Avould  testify ;  or,  that  the  witness  has  recently  been  brought 
under  the  influence  of  the  other  party,  and  has  deceived  the  party 
calling  him.  For  it  is  said  that  this  course  is  necessary  for  his 
protection  against  the  contrivance  of  an  artful  witness;  and  that 
the  danger  of  its  being  regarded  by  the  jury  as  substantive  evi- 
dence is  no  greater  in  such  cases  than  it  is  where  the  contradic- 
tory declarations  are  proved  by  the  adverse  party.  ^(6) 

1  Phil.  &  Am.  on  Evid.  904,  905  ;  2  Phil.  Evid.  447. 

2  Ibid.  ;  Smith  v.  Price,  8  Watts,  447;  Wright  v.  Beckett,  1  M.  &  Rob.  414,  428, 
per  Bollaiid,  B. 

•^  Wright  V.  Beckett,  1  M.  &  Rob.  414,  416,  per  Ld.  Denman  ;  Kice  v.  New  Eng, 
Marine  Ins.  Co.,  4  Pick.  439;  Rex  v.  Oklroyd,  Russ.  &  Ry.  88,  90,  per  Ld.  Ellen- 
borough,  and  Manslield,  0.  J.  ;  Brown  v.  Bellows,  4  Pick.  179;  iState  v.  Norris,  1 
Hayw.  437,  438  ;  2  Phil.  Evid.  450-463  ;  Dunn  v.  Aslett,  2  M.  &  Rob.  122;  Bank  of 
Northern  Liberties  v.  Davis,  6  Watts  &  Serg.  285  ;  infra,  §  467,  n.  But  see  Holds- 
worth  V.  Mayor  of  Dartmouth,  2  M.  &  Rob.  153  ;  Reg.  v.  Ball,  8  C.  &  P.  745  ;  and 
l!e^.  V.  Farr,  8  C.  &  P.  768,  where  evidence  of  this  kind  was  rejected.  In  a  recent 
case,  however,  this  point  has  been  more  fully  considereii,  ami  it  was  held,  that  if  a 
witness  unexpectedly  gives  evidence  adverse  to  the  party  calling  him,   the  party  may 

(n)  Adams  v.    Wheeler,    97   Mass.   67  v.   Homer,   120  Id.   277  ;  Day  v.   Cooley, 

(but  see  note  b,  infra);  People  v.  Jacobs,  118  Id.  524.     This  statute  was  under  cois- 

49  Cal.  384 ;  Coulter  v.  American  Express  sideration    in    Ryerson    v.   Abiugton,   102 

Co.,  56  N.  Y.  585.  Mass.  526,  and  it  was  held  that  \t  should 

[b)  Compare  Com.  v.  Hudson,  11  Gray  be  construed  strictly,  as  abrogating  the 
(Mass.),  64;  Greenough  i;.  Eccles,  5  (.'.  B.  rule  of  the  common  law  that  the  party 
N.  .s.  786  ;  Reg.  v.  Williams,  6  Cox,  C.  C.  producing  a  witness  is  deemed  to  hold  him 
343;  People  y.  SafFord,  5  Denio  (N.  Y. ),  out  as  worthy  of  credit,  and  therefore 
112  ;  Biillanl  v.  Pearsall,  53  N.  Y.  230  ;  cannot  contradict  his  testimony  by  evi- 
McDaniel  v.  State,  53  Ga.  253.  The  dence  of  other  previous  statements  of  his 
L>chlibo,  1  Eng.  L.  &  Eq.  645  ;  3  Rob.  inconsistent  with  his  present  testimony. 
Adm.  310.  By  statute  in  Massachusetts  The  witness  must  therefore  not  oidy  be 
(Pub.  Stat.  c.  169,  §  22),  a  party  produc-  asked  whether  he  had  made  such  contra- 
iiig  a  witness  may  prove  that  he  has  at  dictory  statements,  but  the  circumstances 
otlier  times  made  statements  inconsistent  of  the  supposed  statement  in  sulficient  de- 
with  his  present  testimony  ;  but  before  tail  to  designate  the  particular  occasion 
this  proof  can  be  given,  the  circumstances  referred  to  must  be  mentioned  to  him. 
of  the  supposed  statements,  sufficient  to  The  statute,  also,  would  not  extend  to 
designate  the  particular  occasion,  must  be  immaterial  evidence  which  could  not  have 
mentioned  to  the  witness,  and  he  must  be  been  contradicted  if  given  by  an  op- 
asked  whether  he  made  such  statements,  ])osing  witness.  Pointing  out  a  particu- 
and  be  allowed  to  explain  them.  Cf  lar  person,  as  the  one  with  whom  tiie 
Brooks  V.  Weeks,  121  Mass.  433  ;  Newell  conversation    took    place,    does    not   suf- 


590  LAW    OF    EVIDENCE.  [PART    III. 

§  445.  Cross-examination.  When  a  witness  has  been  examined 
in  chief,  the  other  party  lias  a  right  to  cross-examine  him.i(a) 
But  a  question  often  arises,  whether  the  witness  has  been  so  ex- 
amined in  chief,  as  to  give  the  other  party  this  right.  If  the  wit- 
nses  is  called  merely  for  the  purpose  of  producing  a  paper,  which 
is  to  be  proved  by  another  witness,  he  need  not  be  sworn.  ^ 
Whether  the  right  of  cross-examination,  that  is,  of  treating  the 
witness  as  the  witness  of  the  adverse  party,  and  of  examining  him 
by  leading  questions,  extends  to  the  whole  case  or  is  to  be  limited 
to  the  matters  upon  which  he  has  already  been  examined  in  chief, 
is  a  point  upon  which  there  is  some  diversity  of  opinion.     In 

ask  him  if  he  has  not,  oi)  a  particular  occasion,  made  a  contrary  statement,  (c)  And 
the  question  and  answer  may  go  to  the  jury,  with  the  rest  of  the  evidence,  the  judge 
cautioning  them  not  to  infer,  from  tlie  question  alone,  tliat  the  fact  suggested  in  it  is 
true.  In  such  case,  the  party  wiio  called  the  witness  may  still  go  on  to  prove  his  case 
by  other  witnesses,  notwithstanding  their  testimony,  to  relative  facts,  may  contradict, 
and  thus  indirectly  discredit,  the  former  witness.  Thus,  in  an  action  for  an  assault 
and  battery,  if  the  plaintiffs  first  witness  testifies  that  the  plaintiff,  in  conversation, 
ascribed  the  injury  to  an  accident,  the  plaintiff  may  prove  that,  in  fact,  no  .such  acci- 
dent occurred.  And  if  the  witness  denies  a  nuiterial  fact,  and  .states  that  persons  con- 
nected witli  the  plaintiff  offered  him  money  to  assert  the  fact,  the  plaintiff  may  not 
only  still  go  on  to  prove  the  fact,  but  he  may  also  disprove  the  subornation  ;  for  this 
latter  fact  has  now  become  relevant,  though  no  part  of  the  main  transaction,  inasmuch 
as  its  truth  or  falsehood  may  fairly  influence  the  belief  of  the  jury  as  to  the  whole  case. 
Melluish  v.  Collier,  15  Q.  B.  878. 

1  If  tlie  witness  dies  after  he  has  been  examined  in  chief,  and  before  his  cross-exami- 
nation, it  has  been  held  that  his  testimony  is  inadmissible.  Kissam  v.  Forrest,  25 
Wend.  651.  But  in  equity,  its  admissibility  is  in  the  discretion  of  the  court,  in  view 
of  the  circumstances.     Gass  v.  Stinson,  3  Sumn.  104-108  ;  ivfra,  §  554. 

2  Perrv  v.  Gibson,  1  Ad.  &  El.  48  ;  Davis  v.  Dale,  1  iM.  &  AI.  514  ;  Eeed  v.  James, 
1  Stark.  132  ;  Eush  v.  Smith,  1  C.  M.  &  R.  94  ;  Sunmiers  v.  Moseley,  2  C.  &  M.  4^7. 

ficiently    designate   the   occasion   referred  cannot  be  permitted  to  impeach  his  own 

to,    but  tlie   time  and   place   should   also  witness  by   proof  by   other   witnesses   of 

be  stated.     Com.  i'.  Thyng,  134  Mass.  191.  prior  contradictory  statements,  unless  the 

Sinular    statutes    exist    in    many    States  witness  is  one  whom  the  law  obliges  the 

and  in   Enirland,    17  &  18  Vict.  c.   125  ;  party   to   call.      Hildreth  v.   Aldrich,   15 

Dean  v.  Knight,  1  F.  &  F.   433  ;  Jackson  R.  I.  163  ;  Cox  v.  Eayres,  55  Vt.  24  ;  Hull 

V.    Thomas,    10    W.    R.     42 ;    People    v.  v.  State,  93  Ind.  128. 
Bushton,    80   Cal.   161  ;    Cal.    Code   Civ.  (c)  To   this    effect   is    Hemingway    v. 

Proc.  §§  2049,  2052.     In  some  states  the  Garth,  51   Ala.   530,  and  this  obtains  by 

party  calling  the  witness  is  allowed  to  im-  statute  in  Kentucky.    Blackburn  v.  Com. 

peach  the  testimony  by  proof  of  previous  12  Bush,  181. 

contradictory  statements  only  when  the  (a)  Where  the  State  has  summoned  a 
testimony  of  the  witness  is  a  surprise  to  witness,  and  the  witness  has  been  swoi'n, 
the  party  calling  him.  Miller  v.  Cook,  but  not  examined,  the  prisoner  has  no 
124  Ind.  101-238;  Rev.  St.  Ind.  507;  right  to  cross-examine  him  as  to  the  whole 
Hull  V.  State,  93  Ind.  129  ;  Conway  v.  case.  Austin  v.  State,  14  Ark.  555.  If 
State,  118  Ind.  482  ;'Champ  v.  Com.  2  a  witness  gives  no  testimony  in  his  exami- 
Metc.  (Ky.)  17.  In  the  absence  of  such  nation  in  chief,  he  cannot  be  cross-exam- 
statutes,  and  unless  it  is  shown  that  the  ined  for  the  purpose  of  discrediting  him. 
party  calling  the  witness  had  good  reason  Bracegirdle  v.  Bailey,  1  F.  &  F.  536.  At 
to  believe  that  the  witness  would  testify  a  preliminary  hearing,  to  determine  the 
otherwise,  or  that  the  witness  had  been  competency  of  evidence,  the  judge  may 
improperly  influenced  by  the  other  side,  refuse  to  permit  cross-examination.  Cora, 
the   weight  of  authority  is  that  a  party  v.  Morrell,  99  Mass.  542. 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.  591 

England,  when  a  competent  witness  is  called  and  sworn,  the  other 
party  will,  ordinarily,  and  in  strictness,  be  entitled  tj  cross- 
examine  him,  though  the  party  calling  him  does  not  choose  to 
examine  him  in  chief ;3  unless  he  was  sworn  l)y  mistake;*  or, 
unless  an  immaterial  question  having  been  put  to  him,  his  fur- 
ther examination  in  chief  has  been  stopped  by  the  judge.  ^  And 
even  where  a  plaintiff  was  under  the  necessity  of  calling  the  de- 
fendant in  interest  as  a  witness,  for  the  sake  of  formal  proof  only, 
he  not  being  party  to  the  record,  it  has  been  held,  that  he  was 
thereby  made  a  witness  for  all  purposes,  and  might  be  cross- 
examined  to  the  whole  case.^  In  some  of  the  American  courts  the 
same  rule  has  been  adopted  ;"(^)  but  in  others,  the  contrary  has 
been  held  ;**(<?)  and  the  rule  is  now  considered  by  the  Supreme 
Court  of  the  United  States  to  be  well  established,  that  a  party  has 
no  right  to  cross-examine  any  witness,  except  as  to  facts  and  cir- 
cumstances connected  with  the  matters  stated  in  his  direct  ex- 
amination ;  and  that  if  he  wishes  to  examine  him  to  other  matters, 
he  must  do  so  by  making  the  witness  his  own,  and  calling  him,  as 
such,  in  the  subsequent  progress  of  the  cause.  ^  {d) 

3  Rex  V.  Brooke,  2  Stark.  472;  Phillips  ?•.  Earner,  1  Esp.  357  ;  Dickinson  v.  Shee, 
4  Esp.  67;  Reg.  v.  Murphy,  1  Armst.  Macartn.  &  Ogle,  204. 

*  Clifford  V.  Hunter,  s'  C.  &  P.  16 ;  Rush  v.  Smith,  1  C.  M.  &  R.  94  ;  Wood  v. 
Mackinson,  2  M.  &  Rob.  273. 

6  Creevy  v.  Carr,  7  C.  &  P.  64. 

6  Morgan  v.  Brydges,  2  Stark.  314. 

^  Moody  V.  Rowell,  17  Pick.  490,  498;  Jackson  v.  Varick,  7  Cowen,  238;  2  Wend. 
166;  Fulton  Bank  v.  Stafford,  2  Wend.  483. 

8  Harrison  v.  Rowan,  3  Wash.  580;  Ell  maker  v.  Buckley,  16  S.  &  R.  77. 

8  The  Philadelphia  &  Trenton  Railroad  Co.  v.  Stimpson,  14  Peters,  448,  461;  Floyd 
V.  Bovard,  6  Watts  &  Serg.  75.     It  is  competent  for  tiie  party,  after  having  closed  his 

(h)  Linsley  v.  Lovely,  26  Vt.  123  ;  Silver,  56  Mo.  265  ;  Jones  v.  Roberts,  37 
Blackington  v.  Johnson,  126  Mass.  21;  Mo.  App.  177;  Bell  v.  Prewitt,  62  111. 
Beal  V.  Nichols,  2  Gray,  262.  This  case  362  ;  Lloyd  v.  Thompson,  5  111.  App.  90  ; 
decides,  also,  that  where  a  witness  is  called  Gale  r.  People,  26  Mich.  157  ;  Wilson  i). 
only  to  prove  the  execution  of  an  instru-  Wagar,  lb.  452  ;  Haynes  v.  Ledvard,  33 
nient,  and  is  cross-examined  generally  by  Mich.  319  ;  Buckley  v.  Buckley,  12  Nev. 
the  other  party,  the  party  calling  him  has  423  ;  Fulton  v.  Central  Bank,  92  Pa.  St. 
not  a  right  to  cross-examine  him  upon  the  112  ;  Monongahela  Water  Co.  v.  Stewart- 
new  matter  upon  which  he  was  examined  son,  96  Id.  436  ;  Cramer  v.  CuUinane,  2 
by  the  other  party,  unless  allowed  by  the  McArthur  (D.  C),  197.  This  does  not  ex- 
court  in  its  discretion  to  do  so;  and  he  elude  cross-examination  on  matters  outside 
cannot  except  to  the  ruling  of  the  court,  the  direct  examination,  so  far  as  the  cross- 
that,  as  a  matter  of  law,  he  has  no  right  examination  is  directed  against  the  credi- 
so  to  cross-examine  him.  bility  of  the  witness.     State  v.  Willing- 

(c)  Erie  &  Pac.    Dispatch  v.  Stanley,  ham,  33  La.  An.  537. 
123   111.  160  ;   People  v.   Bishop,  81  Cal.  ((/)  In   Donnelly  v.  State,  2  Dutcher, 

116;  Appeal  of  Nicely  cl  al.,  18  Atl.  Rep.  463,  it  was  decided  that  the  defendant  in 

738;  People  v.  Bentley,  75  Cal.  408  ;  An-  a  criminal  prosecution  could  not  ask  the 

heuser-Busch  Brewing  Ass.  v.  Hutmacher,  prosecutor's  witness  any  question  not  con- 

127    111.    656;  Hunsinger   v.    Hofer,    110  nected  with  the  examination  in  cliief,  and 

Ind.  394  ;  State  v.   Chamberlain,  89  Mo.  which   was  material  only  by  way  of    de- 

132  ;    St.   Louis  &  Iron  M.  R.  R.  Co.  v.  fence.     But  that   is   not   consistent  with 


592  LAW    OF    EVIDENCE.  [PART    III. 

§  446.  Same  subject.  The  power  of  cross-examination  has  been 
justly  said  to  be  one  of  the  principal,  as  it  certainly  is  one  of  the 
most  efficacious,  tests,  which  the  law  has  devised  for  the  discov- 
ery of  truth.  By  means  of  it,  the  situation  of  the  witness  with 
respect  to  the  parties,  and  to  the  subject  of  litigation,  his  interest, 
his  motives,  his  inclination  and  prejudices,  his  means  of  obtain- 
ing a  correct  and  certain  knowledge  of  the  facts  to  which  he  bears 
testimony,  the  manner  in  which  he  has  used  those  means,  his 
powers  of  discernment,  memor}^  and  description,  are  all  fully 
investigated  and  ascertained,  and  submitted  to  the  consideration 
of  the  jury,  before  whom  he  has  testified,  and  who  have  thus  had 
an  opportunity  of  observing  his  demeanor,  and  of  determining 
the  just  weight  and  value  of  his  testimony.  It  is  not  easy  for  a 
witness,  who  is  subjected  to  this  test,  to  impose  on  a  court  or  jury ; 
for  however  artful  the  fabrication  of  falsehood  may  be,  it  cannot 
embrace  all  the  circumstances  to  which  a  cross-examination  may 
be  extended.  1 

case  so  far  as  relates  to  the  evidence,  to  introduce  additional  evidence,  by  the  cross- 
examination  of  the  witnesses  on  the  other  side,  for  the  purjiose  of  more  fully  proving 
facts  not  already  sufficiently  proved  ;  the  subject  being  within  the  discretion  of  the 
judge.     Com.  v.  Eastman,  1  Cush.  189,  217. 

1  1  Stark.  Evid.  160,  161.  On  the  suliject  of  examining  and  cross-examining  wit- 
nesses viva  voce,  Quintilian  gives  the  following  instructions  :  "Primuni  est,  7iosse  tcstem. 
Nam  timidus  terreri,  stultus  decipi,  iiacundus  concitari,  ambitiosus  inflari,  longus 
protrahi  potest;  prudens  vei'o  et  coustans,  vel  tanquam  inimicus  et  pervicax  dimitten- 
dus  statiin,  vel  non  interrogatione,  sed  brevi  interlocutione  patroni,  lel'utandus  est;  aut 
aliquo,  si  continget,  urbane  dicto  refrigcrandus  ;  aut  si  quid  in  ejus  vitani  dici  poterit, 
infamia  criminuni  destruendus.  Probos  quosdam  et  verecundos  non  aspere  incessere 
profuit  ;  nam  sfejie,  qui  adversus  insectantem  pugnassent,  modestia  mitigantur.  Oninis 
autem  interrogatio,  mU  in  cnusa  est,  aut  extra  causnm.  In  causa,  (sicut  acctisatori 
praecepimus),  jiatronis  quoque  altius,  unde  nihil  suspecti  sit  rejietita  percontatione, 
priora  sequentibus  applicando,  saepe  eo  ]ierducit  liomines,  ut  invitis,  quod  prosit, 
extorqueat.  Ejus  rei,  sine  dubio,  nee  disciplina  ulla  in  scholis,  nee  exercitatio  tradi- 
tur  ;  et  natural!  magis  acumine,  aut  usu  contingit  haec  virtus.  *  *  *  Extra  cau- 
sam  quoque  multa,  quae  prosint,  rogari  solent,  de  vita  testium  aliorum,  de  sua  quisque, 
si  turpitudo,  si  humilitas,  si  aniicitia  aecusatoris,  si  inimicitiai  cum  reo,  in  quibus  aut 
dicant  ali([uid,  quod  prosit,  aut  in  mendacio  vel  cupiditate  l.'edendi  deprehendantur. 
Sed  in  jmmis  interrogatio  debet  esse  circums}>ecta ;  quia  multa  contra  patronos  venuste 
testis  saepe  respondet  eique  praecipue  vulgo  favetur;  tuni  verbis  quam  maxime  ex  medio 
sumptis  ;  ut  qui  rogatur  (is  autem  saepins  imperitus)  intelligat,  aut  ne  intelligere  se 

the  general    practice   in  such  cases.     All  allowed  to  open  his  case  on  cross-exami- 

questions  put  upon  cross-examination  are  nation,    or  shall  be  allowed  to  recall  the 

supposed  to  be  material  only  to  the  adver-  witnesses  at  the  proper  time  in  })utting  in 

sary's  case.     The  examination  in  chief  is  his  own  case,  and  this  rests  in  the  discre- 

suppose<l  to  have  drawn  out  all  the  testi-  tion  of  the  court.     Fast,  §  447.     Where  a 

mony  of  tiie  witness  material  to  the  case  of  witness,  cross-examined  in  part,    without 

the  party  calling  him.     And  whether  the  fault   of  the  party  who  sunmioned  him, 

cross-examination    has    reference    to    the  disappears,  so  that  his  cross-examination 

same  points  raised  by  the  direct  exaraina-  cannot  be  completed,  it  is  not  the  right  of 

tion,  or  to  others  material  to  the  defence,  the   cross-examining    party    to    have    the 

the  witness  is  to  be  regarded  as  the  witness  whole   evidence  strirkeii  out.     Burden  v. 

of  the  party  calling  him.     The  only  proper  Pratt,  Sup.  Ct.  N.  V.,  8  Al.  L.  J.  382. 
doubt  is  whether  the  adversary  shall    be 


CHAP.    III.]  EXAMINATION    OP    WITNESSES.  59-3 

§  447.  Extent  of  right  to  cross-examine.  Whether,  when  a  pai'ty 
is  once  entitled  to  cross-examine  a  witness,  this  r'ujht  continues 
through  all  the  subsequent  stages  of  the  cause,  so  that  if  the  partv 
should  afterwards  recall  the  same  witness,  to  prove  a  part  of  his 
own  case,  he  may  interrogate  him  by  leading  questions,  and  treat 
him  as  the  witness  of  the  party  who  first  adduced  him,  is  also  a 
question  upon  which  different  opinions  have  been  held.  Ui)on 
the  general  ground,  on  which  this  course  of  examination  is  per- 
mitted at  all,  namely,  that  every  witness  is  supposed  to  be  in- 
clined most  favorably  towards  the  party  calling  him,  there  would 
seem  to  be  no  impropriety  in  treating  him,  throughout  the  trial, 
as  the  witness  of  the  party  who  first  caused  him  to  be  summoned 
and  sworn.  But  as  the  general  course  of  the  examination  of  wit- 
nesses is  subject  to  the  discretion  of  the  judge,  it  is  not  easy  to 
establish  a  rule,  which  shall  do  more  than  guide,  without  impera- 
tively controlling,  the  exercise  of  that  discretion.^ (a)     A  party, 

nen;et,  quod  interrogantis  non  leve  frigus  est."  Quiiitil.  Inst.  Orat.  lib.  o,  c.  7.  Mr. 
Alison's  ob.servations  on  the  same  subject  ai-e  equally  interesting  both  to  the 
student  and  the  practitioner.  He  observes  :  "  It  is  often  a  convenient  way  of  examin- 
ing, to  ask  a  witness,  whether  such  a  thing  was  said  or  done,  because  the  thing  men- 
tioned aids  his  recollection,  and  brings  him  to  that  stage  of  the  proceeding  on  which  it 
is  desired  that  he  should  dilate.  But  this  is  not  always  ftiir  ;  and  when  any  subject  is 
approached,  on  which  his  evidence  is  ex[iected  to  be  really  important,  the  proper  course 
is  to  ask  him  what  was  done,  or  what  was  said,  or  to  tellhis  own  story.  In  this  way, 
al.so,  if  the  witness  is  at  all  intelligent,  a  more  consistent  and  intelligent  statement  will 
generally  be  got,  than  by  putting  separate  questions  ;  for  the  witnesses  generally  think 
over  the  subjects,  on  which  they  are  to  be  examined  in  criminal  cases,  so  often,  or  they 
have  narrated  them  so  frequently  to  others,  that  they  go  on  much  more  fluently  and 
distinctly,  when  allowed  to  follow  the  current  of  their  own  ideas,  than  when  they  are 
at  every  moment  interrupted  or  diverted  by  the  examining  counsel.  Where  a  witness 
is  evidently  prevaricating  or  concealing  the'truth,  it  is  seldom  by  intimidation  or  stern- 
ness of  manner  that  he  can  be  brought,  at  least  in  this  country,  to  let  out  the  truth. 
Such  measures  may  sometimes  terrify  a  timid  witness  into  a  true  confession  ;  but  iu 
general  they  only  confii-m  a  hardened  one  in  his  falseliood,  and  give  him  time  to  con- 
sider how  seeming  contradictions  may  be  reconciled.  The  most  efl'ectual  method  is  to 
examine  rapidly  and  minutely  as  to  a  number  of  subordinate  and  apparently  trivial 
points  in  his  evidence,  concerning  which  there  is  little  likeliliood  of  his  being  ])repared 
with  falsehood  ready  made;  and  where  such  a  course  of  interi-ogation  is  skilfully  laid, 
it  is  rarely  that  it  fails  in  exposing  perjury  or  contradiction  in  some  parts  of  the  testi- 
mony which  it  is  desired  to  overturn.  It  frequently  liappens,  that,  in  the  course  of 
such  a  rapid  examination,  facts  most  material  to  the  cause  are  elicited,  which  are  either 
denied,  or  but  partially  admitted  before.  In  such  cases,  there  is  no  good  ground  on 
which  the  facts  thus  reluctantly  extorted,  or  which  have  escaped  the  witness  in  an 
unguarded  moment,  can  be  laid  aside  by  the  jury.  Without  doubt,  they  come  tainted 
from  the  polluted  channel  through  which  they  are  adduced  ;  but  still  "it  is  generally 
easy  to  distinguish  what  is  true  iu  such  depositions  from  what  is  false,  because  the  first 
is  studiously  withlield,  and  the  second  is  as  carefully  ])ut  forth  ;  and  it  frequently  hap- 
pens, that  in  this  way  the  most  important  testimony  in  a  case  is  extracted  from  the 
most  unvyilling  witness,  which  only  comes  with  the  more  eff'ect  to  au  intelligent  jury, 
because  it  has  emerged  by  the  force  of  examination,  in  opposition  to  an  ol^vious  de- 
sire to  conceal."  See  Alison's  Practice,  546,  547.  See  also  the  remarks  of  Mr.  Evans 
on  cross-examination,  in  his  Ap])endi\-  to  Poth.  on  Obi.  No.  16,  vol.  ii.  pj).  233,  234. 
1  1  Stark.  Evid.  162  ;  Moody  v.  Rowell,  17  Pick.  498  ;  supra,  §  435. 

(a)  Wallace  v.  Taunton  Street  Railway,     ject  to  review,  unless  it  is  shown  to  have 
119  Mass.  91.     The  discretion  is  not  sub-     been    grossly    and     oppressively    abused. 


594  LAW    OF    EVIDENCE.  [PART   III. 

however,  who  has  not  opened  his  own  case,  will  not  be  allowed  to 
introduce  it  to  the  jury  by  cross-examining  the  witnesses  of  the 
adverse  party, ^  though,  after  opening  it,  he  may  recall  them  for 
that  purpose,  (b) 

§  448.  Collateral  facts.  We  have  already  stated  it  as  one  of  the 
rules  governing  the  production  of  testimony,  that  the  evidence 
offered  must  correspond  with  the  allegations,  and  be  confined  to 
the  point  in  issue.  And  we  have  seen  that  this  rule  excludes  all 
evidence  of  collateral  facts,  or  those  which  afford  no  reasonable 
inference  as  to  the  principal  matter  in  dispute.  ^  Thus,  where  a 
broker  was  examined  to  prove  the  market  value  of  certain  stocks, 
it  was  held  that  he  was  not  compellable  to  state  the  names  of  the 
persons  to  whom  he  had  sold  such  stocks. ^  As  the  plaintiff  is 
bound,  in  the  proof  of  his  case,  to  confine  his  evidence  to  the  issue, 
the  defendant  is  in  like  manner  restricted  to  the  same  point ;  and 
the  same  rule  is  applied  to  the  respective  parties,  through  all  the 
subsequent  stages  of  the  cause, —  all  questions  as  to  collateral 
facts,  except  in  cross-examination,  being  strictly  excluded.  The 
reasons  of  this  rule  have  been  already  intimated.  If  it  were  not 
so,  the  true  merits  of  the  controversy  might  be  lost  sight  of,  in 
the  mass  of  testimony  to  other  points,  in  which  they  would  be 
overwhelmed;  the  attention  of  the  jury  would  be  wearied  and  dis- 
tracted ;  judicial  investigations  would  become  interminable ;  the 

2  Ellmaker  v.  Bulkley,  16  S.  &  R.  77  ;  1  Stark.  Evid.  164. 

1  Supra,  §§  51,  52  "  Jonau  v.  Ferraiid,  3  Rob.  (La.)  366. 

Com.  V.  Lyden,  113  Mas.s.  452;  Thomas  f.  a  witness,  its  method  and  duration  are 
Loose,  114  Pa.  St.  47  ;  Knight  v.  Cunning-  subject  to  the  discretion  of  the  trial  judge, 
ton,  13  N.  Y.  Supr.  Ct.  100  ;  Langley  v.  and,  unless  abused,  its  exercise  is  not  the 
Wa'dsworth,  99  N.  Y.  63.  The  extent  to  subject  of  review  ;  nor  can  the  witness  be 
which  the  cross-examination  of  a  witness  cross-examined  as  to  any  facts,  which,  if 
as  to  credit  may  be  carried  must  be  left  to  admitted,  would  be  collateral  and  wholly 
the  judge  presiding  at  the  trial,  and  if  irrelevant  to  the  matter  in  issue,  and 
matters  which  are  merely  immaterial,  or  which  would  not  in  any  way  affect  his 
which  tend  to  show  the  reasons  of  the  credit  ;  nor  can  the  witness  be  cross-exam- 
witness  for  his  opinions,  or  his  fairness  of  ined  as  to  irielevant  matter  in  order  to 
mind,  are  admitted  in  cross-examination,  contradict  him  by  showing  the  contents  of 
there  is,  as  a  general  rule,  no  exception,  a  letter  written  by  him.  Com.  v.  Schaff- 
Phillips  V.  Marblehead,  148  Mas.s.  329.  ner,  146  Mass.  514.  And  the  latitude 
But  there  may  be  matters  that  will  be  allowed  in  cross-examination  should  not 
error,  for  instance,  if  the  party  cross-ex-  ordinarily  go  so  far  as  to  pernut  the  intro- 
amining,  leads  into  his  own  case.  Thomas  duction  of  evidence  which  has  no  legiti- 
V.  Loose,  114  'Pa.  St.  47  ;  Jackson  v.  mate  relation  to  any  of  the  issues  on  trial, 
Litch,  62  Pa.  St.  451.  In  a  recent  case  and  which  is  at  the  same  time  of  such  a 
in  New  York,  Langley  v.  Wadsworth,  99  character  as  to  be  likely  to  be  applied  to 
N.  Y.  63,  the  rule  was  stated  to  be  that  them  by  the  jury  and  improperly  to  affect 
so  far  as  the  cross-examination  of  a  wit-  the  verdict.  Sullivan  v.  O'Leary,  146 
ness  relates  either  to  facts  in  issue  or  rele-  Mass.  322. 

vant  facts,  it  may  be  pursued  by  counsel  (b)  Cf.  Burke  y.  Miller,  7  Cush.  (Mass.) 

as  matter  of  right ;  but  when  its  object  is  547,  550  ;  Moody  v.  Rowell,  17  Pick.  499. 
to  ascertain  the  accuracy  or  credibility  of 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.  595 

expenses  might  be  enormous,  and  the  characters  of  witnesses  might 
be  assailed  by  evidence  which  they  couhl  not  be  prepared  to  repeL'^ 
It  may  be  added,  that  the  evidence  not  being  to  a  material  point, 
the  witness  could  not  be  punished  for  perjury,  if  it  were  false.* 

§  449.  Same  subject.  In  cross-examinations,  however,  this  rule 
is  not  usually  applied  with  the  same  strictness  as  in  examinations 
in  chief;  but,  on  the  contrary,  great  latitude  of  interrogation  is 
sometimes  i)ermitted  by  the  judge,  in  the  exercise  of  his  discre- 
tion, where,  from  the  temper  and  conduct  of  the  witness,  or  other 
circumstances,  such  course  seems  essential  to  the  discovery  of  the 
truth,  (a)  or,  where  the  cross-examiner  will  undertake  to  show  the 
relevancy  of  the  interrogatory  afterwards,  by  other  evidence.  ^  On 
this  head,  it  is  difficult  to  lay  down  any  precise  rule.^  But  it  is 
a  well-settled  rule  that  a  witness  cannot  be  cross-examined  as  to  any 
fact,  luliicli  is  collateral  and  irrelevant  to  the  issue,  merely  for  the  pur- 
pose of  contradicting  him  by  other  evidence,  if  he  should  deny  it, 
thereby  to  discredit  his  testimony.'^ (Z»)  And,  if  a  question  is  put 
to  a  witness  which  is  collateral  or  irrelevant  to  the  issue,  his  an- 
swer cannot  be  contradicted  by  the  party  who  asked  the  question ; 
but  it  is  conclusive  against  him.*(c)     But  it  is  not  irrelevant  to 

3  Phil.  &  Am.  on  Evid.  909,  910. 

*  But  a  question,  having  no  beai'ing  on  the  matter  in  issue,  may  be  made  material 
bv  its  relation  to  the  witness's  credit,  and  false  swearing  thereon  will  be  perjury  Res 
«."  Overton,  2  Mood.  Cr.  Cas.  263.  r    j     j-         &• 

1  Haigh  V.  Belcher,  7  C.  &  P.  389  ;  supra,  §  52. 
•^  Lawrence  v.  Barker,  5  Wend.  305. 

3  Spenceley  v.  De  Willott,  7  East,  108  ;  1  Stark.  Evid.  164  ;  Lee's  Case,  2  Lewin's 
Cr.  Cas.  154;  Harrison  v.  Gordon,  Id.  156. 

*  Harris  v.  Tippett,  2  Campb.  637  ;  Odiorne  v.  Winkley,  2  Gall.  51,  53  ;  Ware  v. 
Ware,  8  Greenl.  52  ;  Rex  v.  Watson,  2  Stark.  116,  149;  Lawrence  v.  Barker,  5  Wend. 

(a)  Mayhew  v.  Thayer,  8  Gray  (Mass.),  Ware,  92  N.  Y.  653  ;  Com.  v.  Murray,  36 

172.  L"g.    Int.    392  ;  State  v.   Benner,  64  Me, 

(6)  Iron  Mountain  Bank  v.  Murdock,  267  ;  Davis  v.  Roby,  lb.  427  ;  Madden  v. 
62  Mo.  70  ;  People  v.  McKellar,  53  Cak  Koester,  52  Iowa,  692  ;  State  v.  R()!)erts,' 
65  ;  O'Hagan  v.  Dillon,  42  N.  Y.  Super.  81  N.  C.  605  ;  Alger  v.  Castle,  61  Vt.  56! 
Ct.  456  ;  Combs  v.  Winchester,  39  N.  H.  But  contradiction  is  permitted  of  the  wit- 
1;  Henman  v.  Lester,  12  C.  B.  n.  s.  776  ;  ness's  answer  to  a  question  tending  to 
s.  c.  9  Jur.  N.  s.  601.  See  also  post,  show  prejudice  or  interest,  with  respect  to 
§§  455,  456,  462.  And  this  rule  obtains  the  cause  or  the  parties,  on  the  part  of  the 
where  the  party  to  a  suit  or  prosecution  witness  sought  to  be  contradicted  (Kent 
takes  the  stand  as  a  witness.  Marx  v.  Peo-  v.  State,  42'  Ohio  St.  429);  or  as  it  was 
pie,  63  Barb.  (N.  Y. )  618.  Nor  can  a  wit-  expressed  in  another  case,  when  it  tends 
ness  be  asked,  on  cross-examination,  a  to  show  the  temper,  disposition,  or  con- 
question,  otherwise  irrelevant,  in  order  to  duct  of  the  witness  in  relation  to  the  cause 
test  his  moral  sense.  Com.y.  Shaw,  4  Cush.  or  the  parties.  State  v.  Roberts,  81  N.  C. 
(Mass.)  593.  605.     But  a  question,  the  an.swer  to  which 

((•)  People  V.   Bell,  53  Cal.  119  ;  Alex-  would  n)erely  affect  the  general  credibility 

ander  v.   Kaiser,   149  Mass.  321  ;  Eames  of  the  witnes.s,  as  a  question  the  answer  to 

V.    Whittaker,    123  Mass.   342  ;  Kaler   v.  which   would  criminate  or  disgrace  him, 

Builders'  Mut.  Fire  Ins.  Co.,  120  Id.  333;  does  not  admit  of  contradiction.     PuUen 

Hester  v.  Com.,  85  Pa.  St.  139;  People  v.  v.  Pullen,  43  V.  J.  Eq.  136. 
Green  wall,    108  N.    Y.    301  ;    People    v. 


596  LAW   OF    EVIDENCE.  [PART   III. 

inquire  of  the  witness,  whether  he  has  not  on  some  former  occa- 
sion given  a  different  account  of  the  matter  of  fact,  to  which  he  has 
ah'eady  testified,  in  order  to  lay  a  foundation  for  impeaching  his 
testimony  by  contradicting  him.  The  inquiry,  however,  in  such 
cases,  nuist  be  confined  to  matters  of  fact  only;  mere  opinions 
which  the  witness  may  have  formerly  expressed  being  inadmis- 
sible, unless  the  case  is  such  as  to  render  evidence  of  opinions 
admissible  and  material.^  Thus,  if  the  witness  should  give,  in 
evidence  in  chief,  his  opinion  of  the  identity  of  a  person,  or  of  his 
handwriting,  or  of  his  sanity,  or  the  like,  he  may  be  asked  whether 
he  has  not  formerly  expressed  a  different  opinion  upon  the  same 
subject;  but  if  he  has  simply  testified  to  a  fact,  his  previous  opin- 
ion of  the  merits  of  the  case  is  inadmissible.  Therefore,  in  an  ac- 
tion upon  a  marine  policy,  where  the  broker,  who  effected  the 
policy  for  the  plaintiff,  being  called  as  a  witness  for  the  defend- 
ant, testified  that  he  omitted  to  disclose  a  certain  fact,  now  con- 
tended to  be  material  to  the  risk,  and  being  cross-examined 
whether  he  had  not  expressed  his  opinion  that  the  underwriter 
had  not  a  leg  to  stand  upon  in  the  defence,  he  denied  that  he  had 
said  so ;  this  was  deemed  conclusive,  and  evidence  to  contradict 
him  in  this  particular  was  rejected.^  (c?) 

§  450.   Same  subject.     So,  also,  it  has  been  held  not  irrelevant 

301,  305  ;  Meagoe  v.  Simmons,  3  C.  &  P.  75  ;  Crowley  v.  Page,  7  C.  &  P.  789  ;  Com- 
monwealth V.  Buzzell,  16  Tick.  157,  158  ;  Palmer  v.  Trower,  14  Eng.  L.  &  Etj.  470  ; 
8  Exoh.  247.  Thus,  if  he  is  asked  whether  he  has  not  said  to  A  that  a  bribe  had  been 
offered  to  him  by  the  party  by  whom  he  was  called  ;  and  he  denies  having  so  said  , 
evidence  is  not  admissilile  to  prove  that  he  did  so  state  to  A.  Attorney-Gen.  v.  Hitch- 
cock, 11  Jur.  478  ;  s.  c.  1  Exch.  91.  So  where  a  witness  was  asked,  on  cross-exam- 
ination, and  for  the  sole  purpose  of  affecting  his  credit,  whether  he  had  not  made  false 
representations  of  the  adverse  party's  responsibility,  his  negative  answer  was  held 
conclusive  against  the  party  cross-examining.  Howard  v.  City  Fire  Ins.  Co.,  4  Denio, 
502.  But  where  a  witness,  on  his  cross-examination,  denied  that  he  had  attempted  to 
suborn  another  person  to  testify  in  favor  of  the  party  who  had  summoned  him,  it  was 
held,  tliathis  answer  was  not  conclusive,  and  that  testimony  was  admissible  to  contra- 
dict him,  as  it  materially  affected  his  credibility.  Morgan  v.  Frees,  S.  C.  N.  York,  1 
Am.  Law  Reg.  92.  Where  a  witness,  called  by  the  })laintitf  to  prove  the  handwriting 
in  issue,  swore  it  was  not  that  of  the  defendant,  and  another  paper,  not  evidence  in 
the  cause,  being  shown  to  him  by  the  plaintiff,  he  swore  that  this  also  was  not  the 
defendant's,  the  latter  answer  was  conclusive  against  the  plaintiff.  Hughes  v.  Rogers, 
8  M.  &  W.  123.  See  also  Griffits  v.  Ivery,  11  Ad.  &  El.  322  ;  Philad.  &  Trenton 
Railroad  Co.  v.  Stimpson,  14  Peters,  461  ;  Harris  v.  Wilson,  7  Wend.  57  ;  Tennant  i;. 
Hamilton,  7  Clark  &  Fin.  122  ;  State  v.  Patterson,  2  Iredell,  346. 

=  Elton  V.  Larkins,  5  C.  &  P.  385  ;  Daniels  v.  Conrad,  4  Leigh,  401,  405.  But  a 
witness  cannot  be  cross-examined  as  to  what  he  has  sworn  in  an  affidavit,  unless  the 
affidavit  is  produced.  Sainthill  v.  Bound,  4  Esp.  74  ;  Rex  v.  Edwards,  8  C.  &  P.  26  ; 
Reg.  V.  Taylor,  Id.  726.  If  the  witness  does  not  recollect  saying  that  which  is  im- 
puted to  him,  evidence  may  be  given  that  he  did  say  it,  provided  it  is  relevant  to  the 
matter  in  issue.     Crowlev  v.  Page,  7  C.  &  P.  789. 

fi  Elton  V.  Larkins,  5  C.  &  P.  385. 

(d)   Murphy  f.  Com.,  23  Graft.  (Va.)960. 


LllAP.    III.]  EXAMINATION    OF    WITNESSES.  597 

to  the  guilt  or  innocence  of  one  charged  with  a  crime,  to  inquire 
of  the  witness  for  the  prosecution,  in  cross-examination,  whether 
he  has  not  expressed  feelings  of  hostility  towards  the  prisoner.  ^  (a) 
The  like  inquiry  may  be  made  in  a  civil  action;  and  if  the  witness 
denies  the  fact,  he  may  be  contradicted  by  other  witnesses. ^  (A) 
So,  also,  in  assumpsit  upon  a  promissory  note,  the  execution  of 
which  was  disputed,  it  was  held  material  to  the  issue,  to  inquire 
of  the  subscribing  witness,  she  being  a  servant  of  the  plaintiff, 
whether  she  was  not  his  kept  mistress,  ^(c) 

§  451.  "Where  witness  may  refuse  to  answer.  Exposure  to 
penalty.  In  regard  to  the  privilege  of  witnesses,  in  not  hein/j 
compellable  to  answer,  the  cases  are  distinguishable  into  several 
classes.  (1.)  Where  it  reasonably  appears  that  the  answer  will 
have  a  tendency  to  expose  the  witness  to  a  penal  liability,  or  to 
any  kind  of  punishment,  or  to  a  criminal  charge.  Here  the 
ixuthorities  are  exceedingly  clear  that  the  witness  is  not  bound  to 
answer.  1(a)  And  he  may  claim  the  protection  at  any  stage  of  the 
inquiry,  whether  he  has  already  answered  the  question  in  part,  or 
not  at  all. 2  (6)     If  the  fact  to  which  he  is  interrogated  forms  but 

1  Kex  I'.  Yewin,  cited  2  Campb.  638. 

2  Atwood  V.  Welton,  7  Conn.  66. 

8  Thomas  v.  David,  7  C.  &  P.  350,  per  Coleridge,  .1. 

1  Southard  v.  Eexibrd,  6  Cowen,  254  ;  1  Burr's  Trial,  245  ;  E.  India  Co.  v.  Camp- 
bell, 1  Ves.  247  ;  Pa.xton  v.  Douglass,  19  Ves.  225  ;  Gates  v.  Hardacre,  3  Taunt.  4i4  ; 
Macbride  v.  Macbride,  4  Esp.  243  ;  Rex  v.  Lewis,  Id.  225  ;  Rex  v.  Slaney,  5  C.  &  P. 
213  ;  Rex  v.  Pegler,  5  C.  &  P.  521  ;  Dodd  v.  Norris,  3  Campb.  519  ;  Malouey  v.  Bart- 
lej',  Id.  210.  If  he  is  wrongfully  compelled  to  answer,  what  he  says  will  be  regarded 
as  obtained  by  compulsion,  and  cannot  be  given  in  evidence  agafnst  him.  Reg.  v. 
Garbett,  1  Denis.  C.  C.  236  ;  2  Car.  &  K.  474.  And  see  supra,  §  193  :  7  Law  Rev! 
19-30. 

2  Reg.  V.  Garbett,  1  Denis.  C.  C.  236  ;  2  Car.  &  K.  474  ;  Ex  parte  Cossens,  Buck, 
Bankr.  Cas.  531,  545. 

(a)  So  of  a  witness  for  the  prisoner,  if  (c)  When  a  question  is  put  merely  to 

he  has  a  friendly  feeling  for  him.     Moore  find  what  are  the  names  of  certain  wit- 

V.  People,  N.  Y.  Ct.  of  App.,  9  Alb.  L.  J.  nesses  whom  the  party  wishes  to  summon, 

155.      But  unless  the  question  answered  the  question  will  be  excluded.     Storm  v. 

has  a  direct  tendency  to  show  bias,    the  United  States,  94  U.  S.  76. 

witness  cannot  be  contradicted.    Attorney-  {«)  Temple   v.  Com.,  75  Va.  892  ;    Re 

General    v.    Hitchcock,    1     Ex.    91.     The  Graham,  8  Bened.  419,  Taylor  v.  Mclrvin, 

extent  to  which  a  witness  may  be  cross-  94   111.    488  ;    Com.   v.  Trider,  143  Mass. 

examined  as  to  facts  otherwise  immaterial,  180. 

for  the  purpose  of   testing    his    bias  and  (b)  In  Massachusetts  it  is  held  that  a 

credibility,   is  ordinarily  within   the    dis-  witness  who  has  voluntarily  testified    to 

cretion  of  the  court,  no  rule  of  law  being  part  of  the  matter  tending  to  criminate 

violated.     Miller  v.  Smith,  112  Mass.  470;  him  cannot  claim  his  privilege  when  ques- 

Com.  V.  Lyden,  113  Mass.  452.     See  also  tioned    on    cross-examination.      Com.    v. 

post,  §  458.  Pratt,    126   Mass.  462  ;    Com.  v.  Price,  10 

(b)  Martin  v.  Farnham,  5  Foster,   195  ;  Gray,  472.     But  it  seems  that  it  is  in  the 

Drew  V.  Wood,  6  Id.  363  ;  Cooley  v.  Nor-  discretion  of  the  presiding  judge  to  allow 

ton,  4  Cush.  93  ;  Long  v.  Larakin,  9   Id.  him    to    claim   his   privilege,    even   after 

361  ;  Newton  v.   Harris,    2  Selden,   345  ;  testifying   as  to  part  of  the  criminating 

Com.  1).  Byron,  14  Gray,  31.  matter.     Mayo  v.  Mayo,   119  Mass.  290. 


598  LAW    OF    EVIDENCE.  [PART    III- 

one  linknn  the  chain  of  testimony,  which  is  to  convict  him,  he  is 
protected.  And  whether  it  may  tend  to  criminate  or  expose  the 
witness  is  a  point  upon  which  the  court  are  bound  to  instruct 
him; 3  and  which  the  court  will  determine,  under  all  the  circum- 
stances of  the  case;''  but  without  requiring  the  witness  fully  to 
explain  how  he  might  be  criminated  by  the  answer,  which  the 
truth  would  oblige  him  to  give.  For  if  he  were  obliged  to  show 
how  the  effect  would  be  produced,  the  protection  which  this  rule 
of  law  is  designed  to  afford  him  would  at  once  be  annihilated.^  (c) 

s  Close  V.  Olney,  1  Denio,  319. 

*  This  point,  however,  is  not  universally  agreed.  In  Fisher  i'.  Ronalds,  17  Jiir. 
393,  Jervis,  C.  J.,  and  Maule,  J.,  were  of  opinion  that  it  was  for  the  witness  to  say,  on 
his  oath,  whether  he  believed  that  the  question  tended  to  criminate  him;  and  if  he 
did,  that  his  answer  was  conclusive.  Williams,  J.,  thought  the  point  not  necessary 
then  to  be  decided. 

5  People  V.  Mather,  4  Wend.  229  ;  1  Burr's  Trial,  245  ;  Southard  v.  Rexford, 
6  Cowen,  254,  255  ;  Bellinger,  in  error,  v.  People,  8  Wend.  595.  In  the  first  of 
these  cases,  this  doctrine  was  stated  by  the  learned  judge,  in  the  following  terms  : 
"The  principal  reliance  of  the  defendant,  to  sustain  the  determination  of  the  judge,  is 
placed,  I  presume,  on  the  rule  of  law  that  protects  a  witness  in  refusing  to  answer  a 
question  which  will  have  a  tendency  to  accuse  him  of  a  crime  or  misdemeanor.  Where 
the  disclosures  he  may  make  can  be  used  against  him  to  procure  his  conviction  for  a 
criminal  offence ,  or  to  charge  him  with  penalties  and  forfeitures,  he  may  stop  in  an- 
swering, before  he  arrives  at  the  question,  the  answer  to  which  may  show  directly  his 
moral  turpitude.  The  witness,  who  knows  what  the  court  does  not  know,  and  what 
he  cannot  communicate  without  being  a  self-accuser,  is  to  judge  of  the  efifect  of  his 
answer  ;  and,  if  it  proves  a  link  in  the  chain  of  testimony,  which  is  sufficient  to  con- 
vict him,  when  the  others  are  made  known,  of  a  crime,  he  is  protected  by  law  from 
answering  the  question.  If  there  be  a  series  of  questions,  the  answer  to  all  of  which 
would  establish  his  criminality,  the  party  cannot  pick  out  a  particular  one  and  say,  if 
that  be  put,  the  answer  will  not  criminate  him.  '  If  it  is  one  step  having  a  tendency 
to  criminate  him,  he  is  not  compelled  to  answer.'  (16  Ves.  242.)  The  same  privilege 
that  is  allowed  to  a  witness  is  the  right  of  a  defendant  in  a  court  of  equity,  when  called 
on  to  answer.     In  Parkhurst  v.  Lowten,  2  Swanst.  215,  the  Chancellor  held,  that  the 

Cf    Youncs  V.   Youngs,   5  Redf.   (N.  Y.)  swer  questions  tending  to  criminate  him- 

505.     It  is  held  that  when  the  defendant  self.     Worthington  v.  Sciibner,  109  Mass. 

in  a  criminal  case  voluntarily  goes  on  the  487.  ,         ■•■  e 

stand  as  a  witness  in  his  own  behalf,  and  (c)  This  pmnt  has  been  the  subject  of 

testifies  that  he  did  not  commit  the  crime  confiicting  dicta   in    the   English   couits, 

with  which  he  is  charged,  he   cannot  ob-  but  was  finally  settled  upon  much  consid- 

ject  to  bein<^  asked  about  the  crime   on  eration  by  the  Court  ot  Common  Pleas, 

cross-examination,    but   is  held   to    have  Coekburn,  C.  J.,  as  follows  :    "  To  entitle 

waived  his  privilege  as  to  any  question  a  party  called  as  a  witness  to  the  privilege 

relevant  to  the  case  or  to  his  credibilitv  as  of  silence,   the  court  must  see  from  the 

a  witness    (Com.    v.    Nichols,    114    Mass.  circumstances  of  the  case  and  the  nature 

285 -Com    r.  Tolliver,  119  Id.  312.     Cf.  of  the  evidence  which  the  witness  is  called 

People  V  Brown,  72  N.  Y.  571  ;  Roddv  v.  upon   to  give,    that   there    is    reasonable 

Finuetran,  43  Md.  490  ;    Stokes  v.  Miller,  ground  to  apprehend  danger  to  the  witness 

36   Le'^.  int.  202;    State  v.  Witham,   72  from  his  being  compelled  to  answer— but 

Me    531 )  ;  and  that  if  a  party  in  a  civil  that  if  the  danger  to  the  witness  be  once 

case  goes  on  the  stand  and  refuses  to  an-  made  to  appear,  great  latitude  should  be 

swer  certain  questions  on  the  ground  that  allowed  to  him  in  judging  for  himself  of 

the  answers  would  criminate  him,  this  re-  the    effect   of    any   particular    question." 

fusal  is  evidence  against  him  on  that  point.  Reg.  v.  Boyes,  1  B^  &  S.  311       This  rule 

Andrews  v    Frye,  104  Mass.  235.     It  is,  was  laid  down  in  Osborn  v.  London  Dock 

however,  held  that  a  party  to  a  suit  who  Co.,  10  Ex.  698,  and  acted  on  in  Sidebot- 

is  interrogated  by  the  other  party,  under  tom  v.  Adkins,  5  W.  R.  743,  and  followed 

the   Massachusetts  statute,  need  not  an-  iu  ex  parte  Schoueld,  L.  R.  6  Ch.  D.  230. 


CHAP,    III. J  EXAMINATION    OP    WITNESSES.  599 

But  the  court  will  not  prevent  the  witness  from  answerinp^  it,  if 
he  chooses:  they  will  only  advertise  him  of  his  right  to  decline 
it.*^  This  rule  is  also  administered  in  chancery,  where  a  defend- 
ant will  not  be  compelled  to  discover  that  which,  if  answered, 
would  tend  to  subject  him  to  a  penalty  or  punishment,  or  which 
might  lead  to  a  criminal  accusation,  or  to  ecclesiastical  censures.' 
But  in  all  cases  where  the  witness,  after  being  advertised  of  his 
privilege,  chooses  to  answer,  he  is  bound  to  answer  everything 
relative  to  the  transaction. ^  (c?)    But  the  privilege  is  his  own,  and 

(lefeiulant  '  was  not  only  not  bound  to  answer  the  question,  the  answer  to  which  would 
criminate  him  directly,  but  not  any  which,  however  remotely  connected  witli  the  fact, 
would  have  a  tendency  to  prove  him  guilty  of  simony.'  The  language  of  Chief  Justice 
Marshall,  on  Burr's  trial,  is  ecjually  explicit  on  this  point.  '  Many  links,'  he  says, 
'  frequently  compose  that  chain  of  testimony,  which  is  necessary  to  convict  an  indi- 
vidual of  a  crime.  It  appears  to  tlie  court  to  be  the  true  sense  of  the  rule,  that  no 
witness  is  compellable  to  furnish  any  one  of  them  against  himself.  It  is  certainly  not 
only  a  possible  but  a  probable  case,  that  a  witness,  by  disclosing  a  single  fact,  may 
complete  the  testimony  against  himself,  and,  to  every  effectual  purpose,  accuse  himself 
entirely,  as  he  would  by  stating  every-  circumstance  which  would  be  required  for  his 
conviction.  That  fact  of  itself  would  be  unavailing,  but  all  other  facts  without  it 
would  be  insufficient.  While  that  remains  concealed  in  his  own  bosom,  he  is  safe  ; 
but  draw  it  from  thence,  and  he  is  exposed  to  a  prosecution.  The  rule  which  declares 
that  no  man  is  compellable  to  accuse  himself  would  most  obviously  be  infringed,  by 
comjii'lling  a  witness  to  disclose  a  fact  of  this  description.'  (1  Burr's  Trial,  2i4.)  My 
conclusion  is,  that  where  a  witness  claims  to  be  excused  from  answering  a  question, 
because  the  answer  niay  disgrace  him,  or  render  him  infamous,  the  court  must  see  that 
the  answer  may,  without  the  intervention  of  other  facts,  fix  on  him  moral  turpitude. 
Where  he  claims  to  be  excused  from  answering,  because  his  answer  will  have  a  ten- 
dency to  implicate  him  in  a  crime  or  misdemeanor,  or  will  expose  him  to  a  penalty  of 
forfeiture,  then  the  court  are  to  determine,  whether  the  answer  he  may  give  to  the 
question  can  criminate  him,  directly  or  indirectly,  by  furnishing  direct  evidence  of  his 
guilt,  or  by  establishing  one  of  many  facts,  which  together  may  constitute  a  chain  of 
testimony  sufficient  to  warrant  his  conviction,  but  which  one  fact  of  itself  could  not 
produce  such  result  ;  and  if  they  think  the  answer  may  in  any  way  criminate  him, 
they  must  allow  his  privilege,  witiiout  exacting  from  him  to  explain  how  he  would  be 
criminated  by  the  answer,  which  the  truth  may  oblige  him  to  give.  If  the  witness 
was  obliged  to  show  how  the  effect  is  produced,  the  protection  would  at  once  be  anni- 
hilated. The  means  which  he  would  be  in  that  case  compelled  to  use  to  obtain  protec- 
tion would  involve  the  surrender  of  the  very  object,  for  the  security  of  which  the 
protection  was  sought."  -See  4  Wend.  252-254.  See  also  Short  v.  Mercier,  15  Jur. 
93  ;  1  Eng.  Law  &  Eq.  208,  where  the  same  point  is  discussed. 

6  4  Wend.  252-254. 

•»  Story's  Eq.  PI.  §§  524,  576,  577,  592-598  ;  Mclntvre  i'.  Mancius,  16  Johns.  592  ; 
Wigrara  on  Discovery,  pp.  61,  150,  195  (1st  Am.  ed.);'ld.  §§  130-133,  271  l2d  Lond. 
ed.);  Mitford's  Eq.  1>1.  157-163. 

8  Dixon  V.  Vale,  1  C.  &  P.  278  :  State  v.  K ,  4  N.  H.  562  ;  East  v.  Chapman, 

1  M.  &  Malk.  46  ;  s.  c.  2  C.  &  P.  570  ;  Low  v.  Mitchell,  6  Shepl.  372. 

{d)   Fosters.  Pierce,  11  Cush.  437,  439.  a  witness  who  proceeds  inadvertently,  and 

It  seems  that  in  some  of  the  States,  where  without  expecting  to  be  asked  to  give  tes- 

the   party   gives   testimony  to  part  of  a  timony  u])ou  points  affecting  his  character 

transaction  without  claiming  his  privilege  or  subjecting  him  to  prosecution  for  crime, 

of  not  testifying  to  what  may  criminate  will  be  accorded  his  privilege,  when  claimed, 

him,  he   may   be   compelled   to  state  the  although  the  result  should  be  to  strike  his 

whole;  and  to  submit  to  a  full  cross-ex-  testimony  from  the  case  after  it  had  been 

amination,   notwithstanding    his   answers  partly  taken  down.     Dixon  v.  Vale,  1  C. 

tend  to  criminate  or  disgrace  him.      Com.  &   P.    278,  by    Best,    C    J.     The  witness 

V.  Piatt,  126  Mass.  462.     But,  in  general,  must  himself  judge,  in  the  first  instance, 


600 


LAW    OF    EVIDENCE. 


[PAIJT 


III. 


nut  that  of  the  party ;  counsel,  therefore,  will  not  be  allowed  t j 
make  the  objection.9(e)  If  the  witness  declines  answering,  no 
inference  of  the  truth  of  the  fact  is  permitted  to  be  drawn  from 
that  circumstance  ^^(f)  And  no  answer  forced  from  him  by  the 
presiding  judge-,  after  he  has  claimed  protection,  can  be  after- 
wards given  in  evidence  against  him. ^^  Jf  the  prosecution,  to 
which  he  might  be  exposed,  is  barred  by  lapse  of  time,  the  privi- 
lege ceases,  and  the  witness  is  bound  to  answer.  ^- ((/) 

9  Thomas  v.  Newton,  1  M.  &  Malk.  48,  u.  ;  Eex  v.  Adey,  1  M.  &  Rob.  94. 

10  Rose  V.  Blakemoi-e,  Kv.  &  M.  383. 

"  Keg.  V.  Uarbett,  2  C.  &  K.  474.  In  Connecticut,  by  Rev.  Stat.  1849,  tit.  6,  §  161, 
it  is  enacted,  tliat  evidence  given  by  a  witness  in  a  ciiniinal  case  shall  not  "be  at  any 
time  construed  to  his  prejudice."  Such,  in  substance,  is  also  the  law  of  Virginia. 
See  Tate's  Dig.  p.  340  ;   Virg.  Code  of  1849,  c.  199,  §  22. 

i-i  Roberts  v.  Allatt,  1  M.  &  Malk.  192  ;  People  v.  Mather,  4  Wend.  229,  252-255. 


whether  the  ansvers  sought  will  tend  to 
prove  him  guilty  of  a  crime.  Unless  he 
is  able  to  testify  that  he  believes  they  will, 
he  is  not  entitled  to  claim  the  privilege. 
If  he  informs  the  court,  upon  oath,  tliat 
he  cannot  testify  without  criminating 
himself,  the  court  cannot  compel  liim  to 
testify,  unless  fully  satisfied  such  is  not 
the  fact,  i.  c,  that  the  witness  is  either 
mistaken,  or  acts  in  bad  faith  ;  in  either 
of  which  cases  they  should  compel  him 
to  testify.  Chamberlain  v.  Willson,  12 
Vt.  491.  But  where  the  reason  for  not 
giving  testimony  assigned  by  the  witness 
is  evidently  insufficient,  the  court  should 
compel  him  to  testify.  Mexico  &  S.  A. 
Co.,  in  re;  Aston's  Case,  4  De  G.  &  J. 
320 ;  s.  c.  27  P>eav.  474.  It  is  not  im- 
portant that  the  witness  is  really  inno- 
cent, if  his  answers  will  place  him  in  a 
position  where  he  could  not  exculpate 
himself  from  legal  presumptions,  although 
contrary  to  the  fact.  Adams  v.  Lloyd,  4 
Jul'.  N.  s.  590.  Hut  if,  for  any  cause,  the 
testimony  cannot  be  used  against  the  wit- 
ness, he  is  not  ]irivileged  (People  v.  Kel- 
ly, 24  N.  Y.  74)  ;  nor  can  he  claim  ex- 
emption from  testifying  merely  because 
his  testimony  will  give  a  clue  to  evidence 
against  him.  Nor  will  the  fact  that  the 
direct  examination  will  not  tend  to  crimi- 
nate the  witness  be  sufficient,  if  ])roper 
questions  on  cross-examination  will.  Printz 
V.  Cheeuey,  11  Iowa,  469. 

(e)  Com.  V.  Shaw,  4  Cush.  (Mass.) 
594  ;  State  v.  Wentworth,  65  Me.  234. 

(/)  Phelin  v.  Kenderdine,  20  Pa.  St. 
354  ;  Carne  v.  Litchfield,  2  Mich.  340. 
See  Boyle  v.  Wiseman,  29  Eng.  Law  & 
Eq.  473,  10  F^xch.  147,  where  the  witness 
who  claim"d  the  privilege  was  one  of  the 
parties  to  tlie  suit.     If  the  witness  should 


be  improperly  compelled  to  answer  such  a 
question,  neither  party  to  the  action  can 
take  advantage  of  the  error.  Reg.  v. 
Kinglake,  22  L.  T.  N.  s.  335.  But  if 
the  witness  so  comjielled  to  answer  is  a 
party  to  the  suit,  he  may  take  advantage 
of  the  eiror.  People  v.  Brown,  72  N.  Y. 
571.  But  he  cannot  take  the  objection 
by  counsel  ;  he  must  claim  the  privilege 
personally.  State  v.  Wentworth,  65  Me. 
234. 

(ij)  Where  a  defendant  in  a  criminal 
case  takes  the  stand  in  his  own  behalf,  he 
waives  his  right  to  protection  against 
compulsory  inculpation,  and  may  be  re- 
quired to  answer;  and  a  refusal  to  answer 
any  questions  pertinent  to  the  case  is  a 
ground  for  adverse  comment.  State  v. 
Cher.  52  N.  H.  459  ;  Stover  v.  People, 
56  N.  Y.  315 ;  Cooley's  Const.  Lim.  317, 
n.  ;  Com.  v.  Mullen,  97  Mass.  545  ;  Con- 
nors V.  People,  50  N.  Y.  240  ;  Andrews 
V.  Frye,  104  Mass.  234  ;  Com.  v.  Mor- 
gan, 107  Mass.  199.  So  the  fact  that  a 
party  refuses  to  take  the  stand,  the  law 
giving  him  the  right  to  testify  not  ])rohib- 
iting  any  such  inference,  may  be  the  sub- 
ject of  adverse  comment.  State  v.  Bart- 
lett,  55  Me.  200.  This,  however,  should 
be  confined  to  such  facts  as  he  must  be 
presumed  to  know.  Devries  v.  Phillips 
63  N.  C.  53.  It  may  be  doubted  \vhether 
a  statute  which  prohibits  any  such  infer- 
ence is  not  nugatory,  as  contrary  to  the 
law  of  the  human  mind.  A  statute  that 
upon  proof  that  the  sun  was  shining,  no 
inference  that  it  was  light  should  be 
drawn  by  the  jury,  if  not  against  the  con- 
stitution of  a  State,  is  against  the  nature 
of  things.  When  a  co-defendant  in  a 
criminal  case  turns  State's  evidence,  and 
testifies  to  facts  criminating  himself,  he 


CHAP.    III.]  EXAMINATION    OF   WITNESSES.  GOl 

§  452.  Exposure  to  pecuniary  loss.  (2.)  Where  the  witness, 
by  answering,  may  suhject  himself  to  a  civil  action  or  pecuniary 
loss,  or  cliarge  himself  with  a  debt.  This  question  was  very  much 
discussed  in  England,  in  Lord  Melville's  case;  and,  being  finally 
put  to  the  judges  by  the  House  of  Lords,  eight  judges  and  the 
chancellor  were  of  opinion  that  a  witness,  in  such  case,  was  bound 
to  answer,  and  four  thought  that  he  was  not.  To  remove  the 
doubts  which  were  thrown  over  the  question  by  such  a  diversity  of 
opinion  among  eminent  judges,  a  statute  was  passed,  ^  declaring 
the  law  to  be,  that  a  witness  could  not  legally  refuse  to  answer  a 
question  relevant  to  the  matter  in  issue,  merely  on  the  ground 
that  the  answer  may  establish,  or  tend  to  establish,  that  he  owes 
a  debt,  or  is  otherwise  subject  to  a  civil  suit,  provided  the  answer 
has  no  tendency  to  accuse  himself,  or  to  expose  him  to  any  kind 
of  penalty  or  forfeiture.  In  the  United  States,  this  act  is  gener- 
ally considered  as  declaratory  of  the  true  doctrine  of  the  common 
law ;  and,  accordingly,  by  the  current  of  authorities,  the  witness 
is  held  bound  to  answer. ^  But  neither  is  the  statute  nor  the  rule 
of  the  common  law  considered  as  compelling  a  person  interested 
in  the  cause  as  party,  though  not  named  on  the  record,  to  testify 
as  a  witness  in  the  cause,  much  less  to  disclose  anything  against 
his  own  interest.^ 

§  453.  Exposure  to  forfeiture.  (3. )  Where  the  answer  will  sub- 
ject the  witness  to  ia.  forfeiture  of  his  estate.  In  this  case,  as  well 
as  in  the  case  of  an  exposure  to  a  criminal  prosecution  or  penalty, 
it  is  well  settled  that  a  witness  is  not  bound  to  answer.  ^  And 
this  is  an  established  rule  in  equity  as  well  as  at  law,^ 

1  46  Geo.  III.  c.  37  ;  2  Phil.  Evid.  420  ;  1  Stark.  Evid.  165.  It  is  so  settled  by 
statute  in  New  York.     2  Rev.  Stat.  405,  §  71. 

2  Bull  V.  Loveland,  10  Pick.  9  ;  Baird  v.  Cochran,  4  S.  &  R.  397  ;  Nass  v.  Van- 
swearingen,  7  S.  &  R.  192  ;  Taney  v.  Kemp,  4  H.  &  J.  348  ;  Naylor  v.  Semmes,  4  G. 
&  J.  273  ;  City  Bank  v.  Bateman,  7  H.  &  J.  104  ;  Stoddert  v.  Maniiincr,  2  H.  &  G. 
147  ;  Copp  V.  Upham,  3  N.  H.  159 ;  Cox  v.  Hill,  3  Ohio,  411,  424  ;  Planters'  Bank  v. 
George,  6  Martin,  670  ;  Jones  v.  Lanier,  2  Dev.  Law,  480  ;  Conover  v.  Bell,  6  Monr. 
157  ;  Gorham  v.  Carroll,  3  Littell,  221  ;  Zollicoffer  v.  Tnrney,  6  Yerg.  297  ;  Ward  y. 
Sharp,  15  Vt.  115.  The  contrary  seems  to  have  been  held  in  Connecticut.  Benjamin 
V.  Hathaway,  3  Conn.  528,  532. 

*  Rex  V.  Woburn,  10   East,   395  ;  Mauran  v.   Lamb,  7   Cowen,  174  ;  Apyileton   v. 
Boyd,  7  Mass.  131  ;  Fenn  v.  Granger,  3  Campb.  177  ;  People  v.  Irving,  1  Wend.  20  ; 
•    White  V.  Everest,  1  Vt.  181. 

1  6  Corbett's  P.  D.  167  ;  1  Hall's  Law  J.  223  ;  2  Phil.  Evid.  420. 

2  Mitford's  Eq.  PI.  157,  161  ;  Story's  Eq.  PI.  §§  607,  846. 

waives  all  privileges,  which  would  other-  ity  of  such  a  witness.     Com.  v.  "Wright, 

wise  be  allowable,  of  withholding  any  facts  107  Mass.  403.     See  also  ante,  §  329.     A 

pertinent  to  the  issue.     And  his  counsel  second  at  a  duel,  who  voluntarily  testified 

must  also  answer,  if  called  upon.     Hamil-  before  the  coroner,  cannot  be  compelled  to 

ton  V.  People,  Sup.   Ct.  (Mich.)  1875,  13  testify  afterwards  at  the  trial  of  one  of  the 

Am.  L.  Reg.  n.  s.  679.     And  there  is  no  principals.    Cullen's  Case,  24  Gratt.  (Va.) 

presumption  either  way  as  to  the  credibil-  624. 


602  LAW    OF    EVIDENCE.  [PART    III. 

§  454.  Exposure  to  disgrace.  (4.)  Where  the  answer,  though 
it  will  not  expose  the  witness  to  any  criminal  prosecution  or  pen- 
alty, or  to  any  forfeiture  of  estate,  yet  has  a  direct  tendency  to 
degrade  his  character.  On  this  point  there  has  been  a  great  diver- 
sity of  opinion,  and  the  law  still  remains  not  perfectly  settled  by 
authorities.  1  But  the  conflict  of  opinions  may  be  somewhat 
reconciled  by  a  distinction,  which  has  been  very  properly  taken 
between  cases  where  the  testimony  is  relevant  and  material  to  the 
issue,  and  cases  where  the  question  is  not  strictly  relevant,  but 
is  collateral,  and  is  asked  only  under  the  latitude  allowed  in  a 
cross-examination.  In  the  former  case,  there  seems  great  ab- 
surdity in  excluding  the  testimony  of  a  witness  merely  because 
it  will  tend  to  degrade  himself  when  others  have  a  direct  interest 
in  that  testimony,  and  it  is  essential  to  the  establishment  of  their 
rights  of  property,  of  liberty,  or  even  of  life,  or  to  the  course  of 
public  justice.  Upon  such  a  rule,  one  who  had  been  convicted 
and  punished  for  an  offence,  when  called  as  a  witness  against  an 
accomplice,  would  be  excused  from  testifying  to  any  of  the  trans- 
actions in  which  he  had  participated  with  the  accused,  and  thus 
the  guilty  might  escape.     And,  accordingly,  the  better  opinion 

1  The  arguments  on  the  respective  sides  of  this  question  are  thus  summed  up  by 
Mr.  Pliillips  :  "The  advocates  for  a  coinpulsory  power  in  cross-examination  maintain, 
that,  as  parties  are  frequently  surprised  by  the  appearance  of  a  witness  unknown  to 
them,  or,  if  known,  entirely  unexpected,  without  such  power  they  would  have  no  ade- 
quate means  of  ascertaining  what  credit  is  due  to  his  testimony;  that,  on  the  cross- 
examination  of  spies,  informers,  and  accomplices,  this  power  is  more  particularly 
necessary  ;  and  that,  if  a  witness  may  not  be  ([uestioned  as  to  his  character  at  the  mo- 
ment of  trial,  the  property  and  even  the  life  of  a  party  must  often  be  endangered. 
Those  on  the  other  side,  who  maintain  that  a  witness  is  not  compellable  to  answer 
such  questions,  argue  to  the  following  effect  :  They  say,  the  obligation  to  give  evi- 
dence arises  from  the  oath,  which  every  witness  takes  ;  that  by  this  oath  he  binds 
himself  only  to  speak  touching  the  matters  in  issue  ;  and  that  such  particular  facts  as 
these,  whether  the  witness  has  been  in  jail  for  felony,  or  suffered  some  infamous  pun- 
ishment, or  the  like,  cannot  form  any  part  of  the  issue,  as  appears  evident  from  this 
consideration,  that  the  party  against  whom  the  witness  is  called  would  not  be  alloweil 
to  prove  such  particular  facts  bj'  other  witnesses.  They  argue,  further,  tliat  it  would 
be  an  extreme  grievance  to  a  witness,  to  be  compelled  to  disclose  past  transactions  of 
his  life,  which  may  have  been  since  forgotten,  and  to  expose  his  character  afresh  to 
evil  report,  when,  ]ierhaps,  by  his  subsequent  conduct,  he  may  have  recovered  the  good 
opinion  of  the  world  ;  that,  if  a  witness  is  privileged  from  answering  a  (juestiou.  though 
relevant  to  the  matters  in  issue,  because  it  may  tend  to  subject  him  to  a  forfeiture  of 
property,  with  much  more  reason  ought  he  to  be  excused  from  answering  an  irrelevant 
question,  to  tlie  disparagement  and  forfeiture  of  his  character  ;  that  in  the  case  of  ac- 
complices, in  which  tliis  compulsory  power  of  cross-examination  is  thought  to  be  more 
j)articularly  necessary,  the  power  may  be  pi'operly  conceded  to  a  certain  extent,  because 
accomplices  stand  in  a  }>pculiar  situation,  being  admitted  to  give  evidence  only  under 
the  implied  condition  of  making  a  full  and  true  confession  of  tlie  whole  truth  ;  but  even 
accomyilices  are  not  to  be  questioned,  in  their  cross-examination,  as  to  other  offences, 
in  which  they  have  not  been  concerned  with  the  prisoner  ;  that,  with  respect  to  other 
witnesses,  tlie  best  course  to  be  adopted,  both  in  point  of  convenience  and  justice,  is  to 
allow  the  question  to  be  asked,  at  the  same  time  allowing  the  witness  to  shelter  him- 
self under  his  privilege  of  refusing  to  answer."  Phil.  &  Am.  on  Evid.  pp.  917,  918  ; 
2  Phil.  Evid.  422. 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.     '  603 

seems  to  be,  that  where  the  transaction,  to  which  the  witness  is 
interrogated,  forms  any  part  of  the  issue  to  be  tried,  the  witnciss 
will  be  obliged  to  give  evidence,  however  strongly  it  may  reflect 
on  his  character.  2 

§  455.  Same  subject.  But  where  the  question  is  not  material  to 
the  issue,  but  is  collateral  and  irrelevant,  being  asked  under  the 
license  allowed  in  cross-examination,  it  stands  on  another  ground. 
In  general,  as  we  have  already  seen,  the  rule  is,  that,  upon  cross- 
examination,  to  try  the  credit  of  a  witness,  only  general  ques- 
tions can  be  put;  and  he  cannot  be  asked  as  to  any  collateral  and 
independent  fact,  merely  with  a  view  to  contradict  him  afterwards 
by  calling  another  witness.  The  danger  of  such  a  practice,  it  is 
said,  is  obvious,  besides  the  inconvenience  of  trying  as  many  col- 
lateral issues  as  one  of  the  parties  might  choose  to  introduce,  and 
which  the  other  could  not  be  prepared  to  meet.  ^  (a)  Whenever, 
therefore,  the  question  put  to  the  witness  is  plainly  of  this  char- 
acter, it  is  easy  to  perceive  that  it  falls  under  this  rule,  and  should 
be  excluded.  But  the  difficulty  lies  in  determining,  with  preci- 
sion, the  materiality  and  relevancy  of  the  question  when  it  goes 
to  the  character  of  the  witness.  There  is  certainly  great  force  in 
the  argument,  that  where  a  man's  liberty,  or  his  life,  depends 
upon  the  testimony  of  another,  it  is  of  infinite  importance  that 
those  who  are  to  decide  upon  that  testimony  should  know,  to  the 
greatest  extent,  how  far  the  witness  is  to  be  trusted.     They  can- 

2  2  Phil.  Evid.  421  ;  Peojile  v.  Mather,  4  Wend.  250-254,  per  Marcy,  J.  ;  Peake's 
Evid.  (by  Norris)  p.  92  ;  Cundell  v.  Pnitt,  1  M.  &  Malk.  108  ;  Swift's  Bvid.  80.  So 
in  Scotland.     Alison's  Practice,  p.  528. 

1  Spencely  v.  De  Willott,  7  East,  108,  110.  Lord  EUenborough  remarked,  that  he 
had  ruled  this  point  again  and  again  at  the  sittings,  until  he  was  quite  tired  of  the 
agitation  of  the  question,  and  tlierefore  he  wished  that  a  hill  of  exceptions  should  be 
tendered  by  any  party  dissatisfied  with  his  judgment,  that  the  question  might  be  finally 
put  at  rest.     See  also  Lohman  v.  People,  1  Oonist.  379. 

(a)  It  is  not  relevant  to  ask  a  witness,  Cox,  44,  are  worthy  of  note,  as  containing 
on  cross-examination,  if  he  had  not  offered  elaborate  discussions  by  differing  judges. 
to  suborn  a  witness  in  anotiier  case,  and  In  the  former  it  was  held  that  a  witness 
if  he  had  not  forged  the  name  of  the  de-  who  denied  that  he  had  said  a  bribe  was 
fendant  to  a  note.  Com.  v.  Mason,  105  offered  him,  and  in  the  latter,  that  a  wit- 
Mass.  163  ;  Smith  v.  Castles,  1  Gi'ay  ness  who  had  been  sworn  through  an  inter- 
(Mass. ),  108.  The  fact  that  a  man  has  preter  and  on  cross-examination  liad  denied 
frequently  pleaded  usury  in  defence  of  that  he  understood  Kiiglish,  could  not  be 
suits  against  him  is  not  evidence  impeach-  contradicted.  In  Moore  v.  People,  7  Alb. 
ing  his  character.  Pooler  v.  Curtiss,  3  L.  J.  91,  a  witness  for  the  prisoner  was 
N.  Y.  S.  C.  (T.  &  C.)  228  ;  Beard  v.  Hale,  asked  if  he  had  not  seen  a  certain  person 
Id.  791.  This  question  of  relevancy  is  ut-  with  reference  to  the  case  on  trial,  wliich 
terly  without  any  established  test,  though  he  denied  ;  and  evidence  was  allowed  to 
discussed,  perhaps,  more  than  any  other  contradict  him  on  this  point,  as  tending  to 
question  in  the  law  of  evidence.  Of  the  show  bias.  See  also  People  v.  Starks,  5 
more  recent  cases,  Attorney-General  i;.  Denio  (N.  Y. ),  106;  Newton  v.  Harris, 
Hitchcock,  1    Ex.  102,  Kng.    v.   Burke,   8  2  Seld.  (N.  Y.)  345.      - 


604  LAW   OF   EVIDENCE.  [PART   III, 

not  look  into  his  breast  to  see  what  passes  there;  but  must  form 
their  opinion  on  the  collateral  indications  of  his  good  faith  and 
sincerity.  Whatever,  therefore,  may  materially  assist  them  in 
this  inquiry  is  most  essential  to  the  investig-ation  of  truth;  and 
it  cannot  but  be  material  for  the  jury  to  understand  the  character 
of  the  witness  whom  they  are  called  upon  to  believe,  and  to  know 
whether,  although  he  has  not  been  convicted  of  an}^  crime,  he  has 
not  in  some  measure  rendered  himself  less  credible  by  his  dis- 
graceful conduct.  2  The  weight  of  this  argument  seems  to  have 
been  felt  by  the  judge  in  several  cases  in  which  questions  tending 
to  disgrace  the  witness,  have  been  permitted  in  cross-examination. 
§  456.  Same  subject.  It  is,  however,  generally  conceded,  that 
where  the  answer,  which  the  witness  may  give,  will  not  directly 
and  certainly  show  his  infamy,  but  will  only  te7id  to  disgrace  him, 
he  may  be  compelled  to  answer.  Such  is  the  rule  in  equity,  as 
held  by  Lord  Eldon ;  ^  and  its  principle  applies  with  equal  force 
at  common  law;  and,  accordingly,  it  has  been  recognized  in  the 
common-law  courts.^  In  questions  involving  a  criminal  offence, 
the  rule,  as  we  have  seen,^  is  different;  the  witness  being  per- 
mitted to  judge  for  the  most  part  for  himself,  and  to  refuse  to 
answer  wherever  it  would  tend  to  subject  him  to  a  criminal  pun- 
ishment or  forfeiture.  But  here  the  court  must  see  for  itself,  that 
the  answer  will  directly  show  his  infamy,  before  it  will  excuse 
him  from  testifying  to  the  fact.*  Nor  does  there  seem  to  be  any 
good  reason  why  a  witness  should  be  privileged  from  answering 
a  question  touching  his  present  situation,  employment,  and  asso- 
ciates, if  they  are  of  his  own  choice ;  as,  for  example,  in  what 
house  or  family  he  resides,  what  is  his  ordinary  occupation,  and 
whether  he  is  intimately  acquainted  and  conversant  with  certain 
persons,  and  the  like ;  for,  however  these  may  disgrace  him,  his 
position  is  one  of  his  own  selection.^ (a) 

2  1  Stark.  Evid.  170.     See  also  ajite,  §§  449,  450. 

1  Parkhurst  v.  Lowten,  1  Meriv.  400  ;  s.  c.  2  Swanst.  194,  216  ;  Foss  v.  Haynes, 
1  Rpdingt.  81.     And  see  Storv,  Eq.  PI.  §§  58.i,  596. 

2  People  V.  Mather,  4  Wend.  232,  252,  254  ;  State  v.  Patterson,  2  Ired.  346. 

3  Supra,  §  451. 

*  Macbride  v.  Macbride,  4  Esp.  242,  per  Ld.  Alvanley  ;  People  v.  Mather,  4  Wend. 
254,  per  Marcy,  J. 

^  Thus,  when  a  witness  was  asked,  whether  she  was  not  cohabitin}?  with  a  partic- 
ular individual,  in  a  state  of  incest,  Best,  G.  J.,  prohibited  the  question;  stating  ex- 
pressly, that  he  did  this  only  on  the  ground  that  the  answer  would  expose  her  to 
punishment.     Cundell  v.  Pratt,  1  M.  &  Malk.  108. 

(a)  People  v.  Tiley,  84  Cal.  651.  A  off  his  guard,  should  never  be  resorted  to 
mere  impertinent  inquiiy,  calculated  and  or  allowed,  unless  there  has  been  some- 
intended  to  test  the  witness's  power  of  thing  very  marked  in  the  conduct  of  the 
self-control,  and,  if  possible,  to  throw  him  witness  to  justify  it.     The  witness  is  not 


CHAP.    III.]  EXAMINATION   OF   WITNESSES.  605 

§  457.  Same  subject.  But,  on  the  other  hand,  M''here  the  ques- 
tion involves  tlie  fact  of  a  previoua  conviction,  it  ought  not  to  be 
asked ;  because  there  is  higher  and  better  evidence  wliich  ought  to 
be  offered.  If  the  inquiry  is  confined,  in  terms,  to  the  fact  of  his 
having  been  subjected  to  an  if/noniiiiious  punishment,  or  to  irni)ri8- 
onment  alone,  it  is  made,  not  for  the  purpose  of  showing  that  he 
was  an  innocent  sufferer,  but  that  he  was  guilty;  and  the  only 
competent  proof  of  this  guilt  is  the  record  of  his  conviction. 
Proof  of  the  same  nature,  namely,  documentary  evidence,  may 
also  be  had  of  the  cause  of  his  commitment  to  prison,  whether  in 
execution  of  a  sentence,  or  on  a  preliminary  charge.^ (a) 

§  458.   Facts  not  affecting  credibility.     There  is  another  class  of 

1  People  V.  Herrick,  13  Johns.  84,  per  Spencer,  J.  ;  Clement  v.  Brooks,  13  N.  H. 
92.  In  Rex  v.  Lewis,  4  Esp.  225,  the  prosecutor,  who  was  a  common  informer,  was 
asked  whether  he  lunl  not  been  in  the  lioiise  of  correction  in  Sussex  ;  but  Lord  Ellen- 
borough  interposed  and  suppressed  the  question,  partly  on  the  old  rule  of  rejecting  all 
<jue3tions  the  object  of  which  was  to  degrade  the  witness,  but  chiefly  because  of  the 
injury  to  th(!  administration  of  justice,  if  persons,  who  came  to  do  their  duty  to  tlie 
])ublic,  might  be  subjected  to  improper  investigation.  Inquiries  of  this  nature  hava 
often  been  refused  on  the  old  ground  alone.  As  in  State  v.  Bailey,  Pennington,  415  ; 
Millman  v.  Tucker,  2  Peake's  Cas.  222  ;  Stout  v.  Rassel,  2  Yeates^^  334.  A  witness  is 
also  privileged  from  answering  respecting  the  commission  of  an  offence,  though  he  has 
received  a  pardon  ;  "for,"  said  North,  C.  J.,  "if  he  hath  his  pai-don,  it  doth  take 
away  as  well  all  calumny,  as  liableness  to  punishment,  and  sets  him  right  against  all 
objection."  Rex  v.  Reading,  7  Howell's  St.  Tr.  296.  It  may  also  be  observed,  as  a 
further  reason  for  not  interrogating  a  witness  respecting  his  conviction  and  punishment 
for  a  crime,  that  he  may  not  understand  the  legal  character  of  the  crime  for  which  he 
was  punished,  and  so  may  admit  himself  guilty  of  an  oflfence  which  he  never  committed. 
In  Rex  V.  Edwards,  4  T.  R.  440,  the  questions  was  not  asked  of  a  witness,  but  of  one 
who  offered  himself  as  bail  for  another,  indicted  of  grand  larceny. 

obliged  to  submit  to  insult,  or  to  answer  a  previous  conviction  of  (M-ime.     Com.   v. 

inquiries   merely   impertinent.     Com.    v.  Morgan,  107  Mass.  205  ;  Cora.  v.  Sullivan, 

Sacket,    22  Pick.  394  ;  Com.  v.  Shaw,   4  150    Mass.     315  ;    Spiegel    v.    Hays,    113 

Cush.  593  ;  Smith  v.  Castles,  1  Gray,  108.  N.  Y.  6dl.     It  is  not,  however,  allowable 

Greater   latitude   of  cross-examination   is  to  show  by  the  cross-examination  of  the 

allowable  as  against  a  party  to  the  suit,  as  witness  himself  that  he  has  been  convicted 

a   rule,    than    against    witnesses   merely,  of  a  crime,  if  the  objection  is  made  that 

Rea  V.  ]\Iissouri,  Int.  Rev.  Record,  iMarch  the  record   of  the  conviction  is  the  best 

21,  1874.  evidence,  unless,  by  statute,  the  conviction 

(a)  This  rule  is  affected  by  the  statutes  may    be    shown    "by     cross-examination. 

y)reviously   cited,  showing  that  a  convic-  Newcomb   v.    Griswold,    24    N.   Y.    298  ; 

tion  of  crime  may  be  shown   to  affect  a  Real  v.  People,  42  N.  Y.   280  ;  People  v. 

witness's    credibility,    it   being   formerly  Irving,  95  N.  Y.  541 ;  Spiegel  y.  Hays,  118 

held  to  exclude  him  entirely.     See  ante,  N.  Y.  661.     The  better  rule  now  is  tliat 

sections  372  et  seq.     The  conviction  being  on  cross-examination  questions  as  to  spe- 

now  admissible  as  affecting  the  witness's  cific  facts  tending  to  disgrace  the  witness, 

credibility,    it   is  sometimes  allowable  to  and  not  questions   as    to   accusations   or 

ask  the  witness  questions  on  cross-exaini-  charges,    including   indictments,    may  be 

nation   which   tend  to  connect  him  with  asked  on  cross-examination,  but  the  party 

the  conviction.     Thus  it  is  held   that   if  asking  them  is  bound  by  th3  answers  ot 

the  defendant  in  a  criminal  case  goes  on  the  witness.     People  v.  Irving,  95  N.  Y. 

the  witness-stand  to  testify  in  his  own  be-  541  ;  Real  v.  People,  42  N".  Y.  281  ;  Peo- 

half,  he  thereby  renders  himself  liable  to  pie  v.  Casey,  72  N.  Y.  393  ;   Ryau  v.  Peo- 

be  asked  questions  which  tend  to  identify  pie,  79  N.  Y.  594. 
him  as  the  person  named  in  the  record  of 


606  LAW   OF   EVIDENCE.  [PART   III. 

questions,  which  do  not  seem  to  come  within  the  reasons  already 
stated  in  favor  of  permitting  this  extent  of  cross-examination ; 
namely,  questions,  the  answers  to  which,  though  they  may  dis- 
grace the  witness  in  other  respects,  yet  will  7wt  affect  the  credi' 
due  to  his  testimony.  For  it  is  to  be  remembered,  that  the  object 
of  indulging  parties  in  this  latitude  of  inquiry  is,  that  the  jury 
may  understand  the  character  of  the  witness,  whom  they  are  asked 
to  believe,  in  order  that  his  evidence  may  not  pass  for  more  than 
it  is  worth.  Inquiries,  therefore,  having  no  tendency  to  this  end, 
are  clearly  impertinent.  Such  are  the  questions  frequently  at- 
tempted to  be  put  to  the  principal  female  witness,  in  J;rials  for 
seduction  per  quod  servitiuvi  aniisit,  and  on  indictments  for  rape, 
&c.,  whether  she  had  not  previously  been  criminal  with  other 
men,  or  with  some  particular  person,  which  are  generally  sup- 
pressed. ^  (a)  So,  on  an  indictment  of  a  female  prisoner,  for  steal- 
ing from  the  person,  in  a  house,  the  prosecutor  cannot  be  asked, 
whether  at  that  house  anything  improper  passed  between  him  and 
the  prisoner.  2  (5) 

§  459.  Collateral  facts  affecting  credibility.  But  where  the  ques- 
tion does  not  fall  within  either  of  the  classes  mentioned  in  the  three 
preceding  sections,  and  goes  clearly  to  the  credit  of  the  witness  for 
veracity,  it  is  not  easy  to  perceive  why  he  should  be  privileged 
from  answering,  notwithstanding  it  may  disgrace  him.  The  ex- 
amination being  governed  and  kept  within  bounds  by  the  discre- 
tion of  the  judge,  all  inquiries  into  transactions  of  a  remote  date 
w411  of  course  be  suppressed ;  for  the  interests  of  justice  do  not 
require  that  the  errors  of  any  man's  life,  long  since  repented  of 
and  forgiven  by  the  community,  should  be  recalled  to  remem- 
brance, and  their  memory  be  perpetuated  in  judicial  documents, 

^  Dodd  V.  Norris,  3  Campb.  519  ;  Rex  v.  Hodgson,  Russ.  &  Ry.  211  ;  Vaughn  v. 
Perrine,  2  Penningt.  534.  But  whei-e  the  prosecution  is  under  a  bastardy  act,  the 
issue  being  upon  the  paternity  of  the  child,  this  inquiry  to  its  mother,  if  restricted  to 
the  proper  time,  is  material,  and  she  will  he  held  to  answer.  Swift's  Evid.  p.  81.  See 
also  Macbride  v.  Macbride,  4  Es]i.  242  ;  Bate  v.  Hill,  1  C.  P.  100.  In  Rex  v.  Teal 
et  al.,  11  Ea.st,  307,  311,  which  was  an  indictment  for  conspiring  falsely  to  charge  one 
with  being  the  father  of  a  bastard  child,  similar  inquiries  were  permitted  to  be  made  of 
the  mother,  who  was  one  of  the  consfiirators,  but  was  admitted  a  witness  for  the  prose- 
cution.    People  V.  Blakelev,  4  Parker,  C.  R.  176.     See  post,  vol.  ii.  §  577. 

'^  Rex  V.  Pitcher,  1  C.  &  P.   85. 

(a)  Cora.  V.  Regan,  105  Mass.  593.  M.  C  186  ;  Goddard  v.  Parr,  24  L.  J.  Ch. 
More  recent  cases  have  allowed  such  ques-  784  ;  State  v.  Patterson,  74  N.  C.  157. 
tions  to  be  put,  but  held  the  interrogator  (b)  Rex  v.  Pitcher,  Macbride  v.  Mac- 
bound  by  the  answer.  Reg.  v.  Holmes,  1  bride  and  Rex  v.  Lewis,  supra,  are  said 
L.  R.  C.  C.  334,  affirming  Rex  v.  Hodg-  not  to  be  law  now  in  England,  by  Taylo)-, 
son,  and  overruling  Rex  v.  Rollins,  2  M.  Ev.  §  1293,  n.  And  see  also  ante,  §§  450, 
&  Rob.  512  ;  Garbutt  v.  Simpson,  32  L.  J.  n.,  455,  n. 


CHAP.    III.]  EXAMINATION    OP    WITNESSES.  607 

at  the  pleasure  of  any  futur<?  litigant.  The  State  has  a  deep  in- 
terest in  the  inducements  to  reformation,  held  out  by  the  protect- 
ing veil,  which  is  thus  cast  over  the  past  offences  of  the  penitent. 
But  where  the  inquiry  relates  to  transactions  comparatively  re- 
cent, bearing  directly  upon  the  present  character  and  moral  prin- 
ciples of  the  witness,  and  therefore  essential  to  the  due  estimation 
of  his  testimony  by  the  jury,  learned  judges  have  of  late  been  dis- 
posed to  allow  it.i  Thus  it  has  been  held,  that  a  witness  called 
by  one  party  may  be  asked,  in  cross-examination,  whether  he  had 
not  attempted  to  dissuade  a  witness  for  the  other  party  from  at- 
tending the  trial.  2  So  where  one  was  indicted  for  larceny,  and 
the  principal  witness  for  the  prosecution  was  his  servant-boy,  the 
learned  judge  allowed  the  prisoner's  counsel  to  ask  the  boy, 
whether  he  had  not  been  charged  with  robbing  his  master,  and 
whether  he  had  not  afterwards  said  he  would  be  revenged  of  him, 
and  would  soon  fix  him  in  jail.^  Similar  inquiries  have  been 
permitted  in  other  cases.*  The  great  question,  however,  whether 
a  witness  may  not  be  bound  in  some  cases  to  answer  an  interroga- 
tory to  his  own  moral  degradation,  where,  though  it  is  collateral 
to  the  main  issue,  it  is  relevant  to  his  character  for  veracity,  has 
not  yet  been  brought  into  direct  and  solemn  judgment,  and  must 
therefore  be  regarded  as  an  open  question,  notwithstanding  the 
practice  of  eminent  judges  at  Nisi  Fri2is,in  favor  of  the  inquiry, 
under  the  limitations  we  have  above  stated.^ 

§  460.  Questions  may  be  asked  where  witness  need  not  answer. 
Though  there  may  be  cases,  in  which  a  witness  is  not  bound  to 
answer  a  question  which  goes  directly  to  disgrace  him,  yet  the 
question  may  he  ashed,  wherever  the  answer,  if  the  witness  should 
waive  his  privilege,  would  be  received  as  evidence.^  (a)     It  has 

1  This  relaxation  of  the  old  rule  was  recognized,  some  years  ago,  hy  Lord  Eldon. 
"  It  used  to  be  said,"  he  observed,  "  that  a  witness  could  not  be  called  on  to  discredit 
himself ;  but  there  seems  to  be  sometlung  like  a  departure  from  that  ;  I  mean,  that 
in  modern  times,  the  courts  have  permitted  questions  to  show,  from  tiansactions  not  in 
issue,  that  the  witness  is  of  impeached  character,  and  therefore  not  so  credible." 
Parkhurst  v.  Lowten,  2  Swanst.  216. 

2  Harris  v.  Tit)pet,  2  Campb,  637. 

8  Rex  V.  Yewin,  cited  2  Campb.  638. 

*  Rex  V.  Watson,  2  Stark.  116,  149  ;  Rex  v.  Teal  et  al,  11  East,  311  ;  Cnndell  v. 
Pratt,  1  M.  &  Malk.  108  ;  Rex  v.  Barnard,  1  C.  &  P.  86,  n.  (a)  ;  Rex  v.  Gilroy,  Id.  ; 
Frost  V.  HoUoway,  cited  in  2  Phil.  Evid.  425. 

5  See  1  Stark.  Evid.  167-172  ;  2  Phil.  Evid.  423-428  ;  Peake's  Evid.  by  Norris, 
pp.  202-204.  In  Resimblica  v.  Gibbs,  3  Yeates,  429,  where  the  old  rule  of  excluding 
the  inquiry  was  discussed  on  general  grounds,  and  approved,  the  inquiry  was  clearly 
inadmissible  on  another  account,  as  the  answer  would  go  to  a  forfeiture  of  the  witness's 
right  of  suffrage  and  of  citizenship. 

1  2  Phil.  Evid.  423-428  ;  1  Stark.  Evid.  172  ;  Southard  v.  Rexford,  6  Cohen,  254. 

(«)  It  is  now  undoubted  law  that  a  answer,  may  be  asked  questions  tending 
■witness,   although   not  always   bound   to     to  criminate,  injure,  or  degrade  him.   Best, 


608  LAW    OF    EVIDENCE.  [PART    III. 

been  said,  that  if  the  witness  declines  to  answer,  his  refusal  may 
well  be  urged  against  his  credit  with  the  jury.'^  But  in  several 
cases  this  inference  has  been  repudiated  by  the  court ;  for  it  is 
the  duty  of  the  court,  as  well  as  the  object  of  the  rule,  to  protect 
the  witness  from  disgrace,  even  in  the  opinion  of  the  jury  and 
other  persons  present ;  and  there  would  be  an  end  of  this  protec- 
tion, if  a  demurrer  to  the  question  were  to  be  taken  as  an  admis- 
sion of  the  fact  inquired  into.^ 

§  4G1.  Impeachment  of  witnesses.  After  a  witness  has  been 
examined  in  chief,  his  credit  may  he  impeached  in  various  modes, 
besides  that  of  exhibiting  the  improbabilities  of  a  story  by  a  cross- 
examination.  (1.)  By  disproving  the  facts  stated  by  him,  by  the 
testimony  of  other  witnesses.  (2.)  By  general  evidence  affecting 
his  credit  for  veracity.  But  in  impeaching  the  credit  of  a  witness, 
the  examination  must  be  confined  to  his  general  reputation,  and 
not  be  permitted  as  to  particular  facts ;  for  every  man  is  supposed 
to  be  capable  of  supporting  the  one,  but  it  is  not  likely  that  he 
should  be  prepared  to  answer  the  other,  without  notice ;  and  un- 
less his  general  character  and  behavior  be  in  issue,  he  has  no 
notice. '(a)  This  point  has  been  much  discussed,  but  may  now 
be  considered  at  rest.^     The  regular  mode  of  examining  into  the 

But  it  should  be  remembered,  that,  if  the  question  is  collateral  to  the  issue,  the  answer 
cannot  be  contradicted.  In  such  cases,  the  prudent  practitioner  will  seldom  put  a 
question,  unless  it  be  one  which,  if  answered  either  way,  will  benefit  his  client.  Such 
was  the  question  put  by  the  prisoner's  counsel,  in  Rex  v.  Pitcher,  supra,  §  458.  See 
1  C.  &P.  85,  n.  («). 

2  1  Stark.  Evid.  172  ;  Pvose  v.  Blakemore,  Rv.  &  M.  382,  per  Brougham,  arg. 

3  Rose  V.  Blakemore,  Ry.  &  M.  382,  per  Abbott,  Ld.  Ch.  J.  ;  Rex  v.  Watson,  2 
Stark.  158,  per  Holroyd,  J.  ;  Lloyd  v.  Passin<?ham,  16  Ves.  64  ;  supra,  §  451. 

1  Bull.  N.  P.  296,  297.  The  mischief  of  raising  collateral  issues  is  also  adverted  to 
as  one  of  the  reasons  of  this  rule.  "  Look  ye,"  said  Holt,  Ld.  C.  J.,  "  }'ou  may  bring 
witnesses  to  give  an  account  of  the  general  tenor  of  the  witness's  conversation  ;  but  yon 
do  not  think,  sure,  that  we  will  try,  at  this  time,  whether  he  be  guilty  of  robbery." 
Rex  V.  Rookwood,  4  St.  Tr.  681  ;  '.s.  c.  13  Howell's  St.  Tr.  211  ;  1  Stark.  Evid.  182. 
It  is  competent,  however,  for  the  party  against  whom  a  witness  has  been  called  to  show 
that  he  has  been  bribed  to  give  his  evidence.  Attorney-General  v.  Hitchcock,  11  Jur. 
478. 

2  Laj'er's  Case,  16  How.  St.  Tr.  246,  286  ;  Swift's  Evid.  143. 

Ev.  §  546.     But  in  Com.   v.   McDonald,  v.  Lawrence,   23  Minn.  84.     If,  however, 

110  Ma.ss.  405,  the  court  refused  to  allow  on  cross-examination  of  the  witness,  par- 

the  witness  —  the   prosecutrix  on  an  in-  ticular  facts  impeaching  the  credibility  are 

dictment  for  rape  —  to  be  asked  if  she  had  brought  out,   they  may  be  considered  by 

not  previously  sold  liquor  in  violation  of  the  jury.     Steeples   v.   Newton,   7    Oreg. 

law.     Under  its  discretion  the  court  might  110. 

refuse  to  allow  the  question,  though  it  in-         When  the  defendant,  in  a  criminal  case, 

timated   that,    if  the   question  had  been  goes  on   the   stand  to  testify  in  his  own 

confined  to  the  time  when  the  alleged  rape  behalf,  his   reputation   for  truth  and  ve- 

was  committed,  it  would  have  been  admis-  racity  may  be  impeached  in  the  same  way, 

sible.  State  v.    Beal,   68   Ind.  345  ;  Mershon  v. 

{a)  Conley  v.  Meeker,  85  N.  Y.  618  ;  State,  51  Id.  14  ;    State  v.  Rugan,  5  Mo. 

Dimick  i-.  Downs,  82  111.  570  ;    Moreland  App.  592. 


CHAP.    III.]  EXAMINATION    OF    WITNESSES.  609 

general  reputation  is  to  inquire  of  the  witness  whether  he  knows 
the  general  reputation  of  the  person  in  question  among  his  neigh- 
bors; and  what  that  reputation  is.  (b)  In  the  English  courts,  the 
course  is  further  to  inquire  whether,  from  such  knowledge,  the 
witness  would  believe  that  person, upon  his  oath.^  In  the  Ameri- 
can courts,  the  same  course  has  been  pursued;'*  but  its  propriety 
has  of  late  been  questioned,  and  perhaps  the  weight  of  authority 
is  now  against  permitting  the  witness  to  testify  as  to  his  own 
opinion.  ^(<7)  In  answer  to  such  evidence,  the  other  party  may 
cross-examine  those  witnesses  as  to  their  means  of  knowledge, 

8  Phil.  &  Am.  on  Evid.  925  ;  Mawson  v.  Hartsiiik,  4  Esp.  104,  per  Ld.  Ellenbor- 
ough  ;  1  Stai-k.  Evid.  182  ;  Carlos  v.  Brook,  10  Ves.  50. 

*  People  V.  Mather,  4  Weud.  257,  258  ;  State  v.  Boswell,  2  Dev.  209,  211  ;  Anon., 
1  Hill  (S.  C),  258  ;  Ford  v.  Ford,  7  Humph.  92. 

6  Gass  V.  Stiuson,  2  Sunin.  610,  per  Story,  J.  ;  Wood  v.  Mann,  Id.  321  ;  Kimmel 
V.  Kimmel,  3  S.  &  U.  336-338  ;  Wike  v.  Liglitner,  11  S.  &  R.  198  ;  Swift's  Evid.  143  ; 
Phillips  V.  Kingfield,  1  Appleton,  275.  lu  this  last  case  the  subject  was  ably  examined 
by  Shepley,  J.,  who  observed  :  "The  opinions  of  a  witness  are  not  legal  testimony, 
except  in  special  cases  ;  such,  for  example,  as  exfierts  in  some  profession  or  art,  those 
of  the  witnesses  to  a  will,  and,  in  our  practice,  opinions  on  the  value  of  property.  In 
other  cases,  the  witness  is  not  to  substitute  his  opinion  for  that  of  the  jury  ;  nor  are 
they  to  rely  upon  any  such  opinion  instead  of  exercising  their  own  judgment,  taking 
into  consi(ieration  the  whole  testimony.  When  they  have  the  testimony  that  the  repu- 
tation of  a  witness  is  good  or  bad  for  truth,  connecting  it  with  his  manner  of  testifying, 
and  with  the  other  testimony  in  the  case,  they  have  the  elements  from  which  to  form 
a  correct  conclusion,  whether  any  and  what  credit  should  be  given  to  his  testimony. 
To  permit  the  opinion  of  a  witness,  that  another  witness  should  not  be  believed,  to  be 
received  and  acted  upon  by  a  jury,  is  to  allow  the  prejudices,  passions,  and  feelings  of 
that  witness  to  form,  in  part  at  least,  the  elements  of  their  judgment.  To  authorize 
the  question  to  be  put,  whether  the  witness  would  believe  another  witness  on  oath, 
although  sustained  by  no  inconsiderable  weight  of  authority,  is  to  depart  from  sound 
principles  and  established  rules  of  law,  respecting  the  kind  of  testimony  to  be  admitted 
for  the  consideration  of  a  jury,  and  their  duties  in  deciding  upon  it.  It  moreover  would 
permit  the  introduction  and  indulgence  in  courts  of  justice  of  personal  and  party  hos- 
tilities, and  of  every  unworthy  motive  by  which  man  can  be  actuated,  to  form  the  basis 
of  an  opinion  to  be  expressed  to  a  jury  to  influence  their  decision."  1  Applet.  379. 
But  qucere,  whether  a  witness  to  impeach  reputation  may  not  be  asked,  in  cross-exam- 
ination, if  he  would  not  believe  the  principal  witness  on  oath. 

(b)  In  Massachusetts,  it  is  discretionary  Pa.    St.   488 ;    Knight  v.   House,  29  Md. 

with  the  judge  to  require  the  witness  to  194  ;.  People  i'.  Tyler,  35  Cal.  553  ;  Eason 

be  asked  whether  he  knows  the  general  v.  Chapman,  21  111.  35  ;  Wilson  v.  State, 

reputation     of    the    person    in    question  3   Wis.  798  ;  Stokes  v.  State,  18  Ga.  17  ; 

(Wetherbee  v.  Norris,    103    Mass.   565);  MeCutchen  •«.  McCutchen,  9   Port.  (Ala.) 

but  not  to  reject  a  witness  who  has  such  650  ;  Mobley  v.  Hamit,  1  A.  K.  Marshall 

knowledge,  because  the  knowledge  seems  (Ky. ),  590;  United  States  y.  Van  Sickle, 

insufficient  to  the  judge.     Bates;;.  Barber,  2  McIiCan  (U.  S.  (,'.  Ct. ),  219.     This  rule 

4  Gush.  (Mass.)  107.    Cf.  Com.  v.  Lawler,  was  affirmed  in  Keator  v.  Peojile,  32  Mich. 

12  Allen  (Mass.),  585.  484;  co?itm,  King  v.  Peakman,   20  N.  J. 

(c)  In  Hamilton  v.  People,  29  Mich.  E(|.  316  ;  Marshall  v.  State,  5  Tex.  App. 
173,  it  is  said  that  so  far  as  the  reports  273.  Cf.  Phillips  v.  Kingfield,  1  Apple- 
show  the  American  decisions  are  decidedly  ton,  375.  The  opiinon  of  the  credibility 
in  favor  of  the  English  doctrine.  The  court  of  a  witness  is  held  to  be  admissible  on  the 
cites,  amongst  other  cases,  People  u.  Davis,  same  ground  that  opinions  in  regard  to 
21  Wend.  (N.  Y.)  309  ;  Titus  v.  Ash,  4  sanity,  disposition,  temjter,  distances,  ve- 
Foster,  319;  Lyman  v.   Philadelphia,  56  locity,&c.,  are  admissible.  Per  Campbell,  J. 

VOL.   I. —  39 


610  LAW   OF   EVIDENCE.  [PART   III. 

and  the  grounds  of  their  opinion;  or  may  attack  their  general 
character,  and  by  fresh  evidence  support  the  character  of  his  own 
witness.^  (d)  The  inquiry  must  be  made  as  to  his  general  reputa- 
tion, where  he  is  best  known.  It  is  not  enough  that  the  impeach- 
ing witness  professes  merely  to  state  what  he  has  heard  "  others 
say ; "  for  those  others  may  be  but  few.  He  must  be  able  to  state 
what  is  generally  said  of  the  person,  by  those  among  whom  he 
dwells,  or  with  whom  he  is  chiefly  conversant;  for  it  is  this  only 
that  constitutes  his  general  reputation  or  character. '^  (e)  And, 
ordinarily,  the  witness  ought  himself  to  come  from  the  neighbor- 
hood of  the  person  whose  character  is  in  question.  (/)  If  he  is  a 
stranger,  sent  thither  by  the  adverse  party  to  learn  his  character, 
he  will  not  be  allowed  to  testify  as  to  the  result  of  his  inquiries; 
but  otherwise,  the  court  will  not  undertake  to  determine,  by  a  pre- 
liminary inquiry,  whether  the  impeaching  witness  has  sufficient 
knowledge  of  the  fact  to  enable  him  to  testify ;  but  will  leave  the 
value  of  his  testimony  to  be  determined  by  the  jury.  ^  {g) 

6  2  Phil.  Evid.  432  ;  Mawson  v.  Hartsink,  4  Esp.  104,  per  Lord  EUenborough  ;  1 
Stark.  Evid.  182.  It  is  not  usual  to  cross-examine  witnesses  to  character,  unless  there 
is  some  definite  charge  upon  which  to  cross-examine  them.  Rex  v.  Hodgkiss,  7  C.  & 
P.  298.  Nor  can  such  witnesses  be  contradicted  as  to  collateral  facts.  Lee's  Case,  2 
Lewiu,  Cr.  Cas.  154. 

■^  Boynton  v.  Kellogg,  3  Mass.  189,  per  Parsons,  C.  J.  ;  Wike  v.  Lightner,  11  S.  & 
R.  198-200  ;  Kimmel  v.  Kimmel,  3  S.  &  R.  337,  338  ;  Phillips  v.  Kingfield,  1  Applet. 
375.  The  impeaching  witness  may  also  be  asked  to  name  the  persons  whom  he  has 
heard  speak  against  the  character  of  the  witness  impeached.  Bates  v.  Barber,  4 
Cush.   107. 

8  Douglass  V.  Tousey,  2  Wend.  352  ;  Bates  v.  Barber,  4  Cush.  107  ;  Sleeper  v.  Van 

(d)  State  V.  Perkins,  66  N.  C.  126.  the  character  of  the  witness  for  truth. 
The  court  may  exercise  its  discretion  in  Shaw  v.  Emery,  42  Maine,  59  ;  Craig  v. 
limiting  the  number  of  impeaching  wit-  State,  5  Ohio  St.  605  ;  State  v.  Sater,  8 
nesses  and  likewise  that  of  the  supporting  Clarke,  420.  In  some  of  the  States,  how- 
witnesses  ;  and  the  proper  exercise  of  such  ever,  such  inquiiies  take  a  wider  range, 
discretion  is  no  gi'ound  of  error.  Bunnell  Eason  v.  Chajmian,  21  111.  33  ;  Gilliam  v. 
V.  Butler,  23  Conn.  65.     In  the  Supreme  State,  1  Head,  38. 

Judicial  Court  of  Massachusetts,  the  court  It  is  not  necessary  that  the  reputation 

at  Nisi   Prius  has  in  some  cases  limited  should    be  at  or  near  the  time  when  the 

the  number  io  five  or  sic  on  a  side,  giving  testimony  of  the  impeached  witness  was 

the  parties  notice  beforehand  of  such  in-  given.     It  is  for  the  judge  to  say  whether 

tended  limitation.     In  Bunnell  v.  Butler,  it  may  be  admitted,  though  relating  to  a 

ubi  supra,  the  number  was  limited  to  six  period  some  time  previous.  Snowr.  Grace, 

on  each  side,  the  court  previously  notify-  29  Ark.  131  ;  Kelly  v.  State,  61  Ala.  19  ; 

ing  the  parties  of  the  intended  limitation.  Fisher  v.  Conway,  21  Kan.  18.     But  it  is 

(e)  Lawson  v.  State,  32  Ark.  220  ;  Rob-  necessary  that,  giving  due  consideration  to 
inson  v.  State,  16  Fla.  835  ;  Brown  v.  attendant  circumstances,  the  questions 
Luehrs,  1  111.  App.  74  ;  Matthewson  v.  should  designate  a  time  reasonably  near 
Burr,  6  Neb.  312  ;  State  v.  Lanier,  79  the  time  of  the  examination.  Pape  v. 
N.  C.  622.  Wright,  116  Ind.  510. 

Or  if  the  reputation  of  the  witness  im-  (/)  Louisville,  New  Albany,  &c.  R.  R. 

peached   relates  wholly  or  in  part  to  his  Co.  v.  Richardson,   66   Ind.  43.     Cf.  Gra- 

want  of  punctualitv  in  paying  his  debts,  ham  v.   Chrystal,    2  Abb.   (N.  Y.)  App. 

Piercew.  Newton,  13  Gray,  528.     But  such  Dec.   263. 

evidence  should  commonly  be  restricted  to  (g)  If  the  witness  says  in  reply  that  he 


CHAP.    III.]  EXAMINATION    OF   WITNESSES.  611 

§  462.  Proof  of  contrary  statements.  (3.)  The  credit  of  a  wit- 
ness may  also  be  impeached  by  proof,  that  he  has  made  statements 
out  of  court,  contrary  to  what  he  has  testified  at  the  trial.  But  it 
is  only  in  such  matters  as  are  relevant  to  the  issue,  that  the  wit- 
ness can  be  contradicted.  And  before  this  can  be  done,  it  is 
generally  held  necessary,  in  the  case  of  verbal  statements,  first 
to  ask  him  as  to  the  time,  place,  and  person  involved  in  the  sup- 
posed contradiction.  It  is  not  enough  to  ask  him  the  general 
question,  whether  he  has  ever  said  so  and  so,  nor  whether  he  has 
always  told  the  same  story ;  because  it  may  frequently  happen, 
that,  upon  the  general  question,  he  may  not  remember  whether 
he  has  so  said ;  whereas,  when  his  attention  is  challenged  to  par- 
ticular circumstances  and  occasions,  he  may  recollect  and  explain 

Middlesworth,  4  Den.  431.  Whether  this  inquiry  into  the  general  reputation  or  char- 
acter of  the  witness  should  be  restricted  to  his  reputation  for  truth  and  veracity,  or  may 
be  made  in  general  terms  involving  his  entire  moral  character  and  estimation  in  societj-, 
is  a  point  upon  which  the  American  practice  is  not  uniform.  All  are  agreed,  that  the 
true  and  primary  inquiry  is  into  his  general  character  for  truth  and  veracity,  and  to 
this  point,  in  the  Northern  States,  it  is  still  confined.  But  in  several  of  the  other 
States  greater  latitude  is  allowed.  In  South  Carolina,  the  true  mode  is  said  to  be, 
first,  to  ask  what  is  his  general  character,  and  if  this  is  said  to  be  bad,  then  to  inquire 
whether  the  witness  would  believe  him  on  oath  ;  leaving  the  party  who  adduced  him  to 
inquire  whether,  notwithstanding  his  bad  character  in  other  respects,  he  has  not  pre- 
served his  character  for  truth.  Anon.,  1  Hill  (S.  C),  251,  258,  259.  In  Kentucky, 
the  same  general  range  of  inquiry  is  permitted,  and  is  thus  defended  by  one  of  the 
learned  judges  =  "  Every  person  conversant  with  human  nature  must  be  sensible  of  the 
kindred  nature  of  the  vices  to  which  it  is  addicted.  So  true  is  this,  that,  to  ascertain 
the  existence  of  one  vice  of  a  particular  character,  is  frequently  to  prove  the  existence 
of  more,  at  the  same  time,  in  the  same  individual.  Add  to  this,  that  persons  of  infa- 
mous character  may,  and  do  frequently  exist,  who  have  formed  no  character  as  to  their 
lack  of  truth  ;  and  society  may  have  never  had  the  opportunity  of  ascertaining  that 
they  are  false,  in  their  words  or  oaths.  At  the  same  time,  they  may  be  so  notoriously 
guilty  of  acting  falsehood,  in  frauds,  forgeries,  and  other  crimes,  as  would  leave  no 
doubt  of  their  being  capable  of  speaking  and  swearing  it,  especially  as  they  may  fre- 
quently depose  falsehood  with  greater  security  against  detection,  than  practise  those 
other  vices.  In  such  cases,  and  with  such  characters,  ought  the  jury  to  be  precluded 
from  drawing  inferences  unfavorable  to  their  truth  as  witnesses,  by  excluding  their 
general  turpitude  ?  By  the  character  of  every  individual,  that  is,  by  the  estimation  in 
which  he  is  held  in  the  society  or  neighborhood  where  he  is  conversant,  his  word  and 
his  oath  are  estimated.  If  that  is  free  from  imputation,  his  testimony  weighs  well.  If 
it  is  sullied,  in  the  same  proportion  his  word  will  be  doubted.  We  conceive  it  perfectly 
safe,  and  most  conducive  to  the  purposes  of  justice,  to  trust  the  jury  with  a  full  knowl- 
edge of  the  standing  of  a  witness,  into  whose  character  an  inquiry  is  made.  It  will  not 
thence  follow,  that  from  minor  vices  they  will  draw  the  conclusion,  in  every  instance, 
that  his  oath  must  be  discredited,  but  only  be  put  on  their  guard  to  scrutinize  his 
statements  more  strictly  ;  while  in  cases  of  vile  reputation,  in  other  respects,  they 
would  be  warranted  in  disbelieving  him,  though  he  had  never  been  called,  so  often  to 
the  book,  as  to  fix  upon  him  the  reputation  of  a  liar,  when  on  oath."     Hume  v.  Scott, 

has  no  knowledge  of  the  general  reputation  kins,  66  N.  C.  126  ;  Holmes  v.  State,  88 

of  the  person  for  truth  and  veracity,  he  Ala.  29. 

cannot  then  be   further   asked   questions  A  party  who  goes  on  the  stand  to  tes- 

tending  to  elicit  answers  referring  to  that  tify  in  his  own  behalf  renders  himself  lia- 

subject,  but  is  incompetent.     Com.  r.  T.aw-  ble  to  be  impeached  in  the  same  manner 

ler,  12  Allen  (Mass.),  585  ;  State  v.  Per-  as   any  other  witness.     State  v.  Watson, 

65  Me.  74. 


612 


LAW   OF   EVIDENCE. 


[part  III. 


what  he  has  formerly  said.  ^  (a).     This  course  of  proceeding  is 

3  A.  K.  Marsh.  '261,  262,  per  Mills,  J.  This  decision  has  been  cited  and  approved  in 
North  Carolina,  where  a  similar  course  prevails.  State  v.  Boswell,  2  Dev.  Law, 
209,  210.  See  also  People  v.  Mather,  4  Wend.  257,  258,  per  Marcy,  J.  See  also  3  Am. 
Law  Jour.  n.  S.  154-162,  where  all  the  cases  on  this  point  are  collected  and  reviewed. 
Whether  evidence  of  common  prostitution  is  admissible  to  impeach  a  female  witness, 
qicccre.  See  Com.  v.  Murphy,  14  Mass.  387,  2  Stark.  Evid.  369,  u.  (1),  by  Metcalf, 
that  it  is  admissible  ;  Spears  v.  Forrest,  15  Vt.  435,  that  it  is  not. 

1  Angus  V.  Smith,  1  M.  &  Malk.  473,  per  Tindal,  C.  J.  ;  Crowley  v.  Page,  7  C.  & 
P.  789,  per  Parke,  B.  ;  Reg.  v.  Shellard,  9  C.  &  P.  277  ;  Reg.  v.  Holdeii,  8  C.  &  P.  606  ; 
Palmer  v.  Haight,  2  Barb.  S.  C.  210.  In  The  Queen's  Case,  this  subject  was  very  much 
discussed,  and  the  unanimous  opinion  of  the  learned  judges  was  delivered  by  Abbott, 
C.  J.,  in  these  terms  :     "The  legitimate  object  of  the  proposed  proof  is  to  discredit  the 


(a)  Conrad  v.  Griffey,  16  How.  (U.  S.) 
38  ;  Carlisle  v.  Hunley,  15  Ala.  623  ; 
Wright  V.  Hicks,  15  Ga.  160  ;  Bock  v. 
Weigant,  5  HI.  App.  643  ;  Hill  v.  Gust, 
55  Ind.  45  ;  State  v.  McLauglin,  44 
Iowa,  82  ;  Kent  v.  State,  42  Oh.  St.  429  ; 
Greer  v.  Higgins,  20  Kan.  420  ;  Smith  v. 
People,  2  iMich.  41 5  ;  State  v.  Davis,  29 
Mo.  391  ;  Hart  v.  Hudson  River  Bridge 
Co.,  84  N.  Y.  56;  Morris  y.  Atlantic  Ave. 
R.  R.  Co.  116  N.  Y.  556  ;  Ankersmit 
V.  Tuch,  114  N.  Y.  55  ;  State  v.  Wright, 
75  N.  C.  439  ;  Nelson  v.  State,  2  Swan 
(Tenn.),  237;  Tread  way  ?;.  State,  1  Tex. 
App.  md>  ;  State  v.  Glynn,  51  Vt.  577  ; 
Unis  V.  Charlton,  12  Gratt.  (Va.)  484; 
Dufresne  v.  Weise,  46  Wis.  290.  Contra, 
Titus  V.  Ash,  24  N.  H.  319  ;  Cork  v. 
Brown,  34  N.  H.  460  ;  Hedge  v.  Clapi^, 
22  Conn.  262  ;  Robinson  v.  Hutchinson, 
31  Vt.  443  ;  Howland  v.  Conway,  1  App. 
Adm.  281.  The  ciirumstances  under 
which  previous  inconsistent  statements  of 
a  witness  in  regard  to  the  subject-matter  of 
his  testimony  in  court  can  be  introduced 
to  contradict  or  impeach  his  testimony, 
are  the  same  whether  his  testimony  is 
given  orally  in  coirrt  before  the  jury,  or  is 
taken  by  deyjosition.  Ayers  v.  Watson, 
132  U.  S.  404  ;  Hammond  v.  Dike,  42 
Minn.  273.  But  the  courts  have  been 
somewhat  liberal  in  giving  the  opposing 
party  an  opportunity  to  present  to  the 
witness  tlie  matter  in  which  they  propose 
to  contradict  him,  even  going  so  far  as  to 
permit  him  to  recall  and  cross-examine  on 
that  subject  after  he  has  left  the  stand. 
In  Ayers  v.  W^atson,  132  U.  S.  404,  the 
court  says  :  "  This  principle  of  the  rules 
of  evidence  is  so  well  understooii  that  au- 
thorities are  not  necessary  to  be  cited.  It 
is  so  well  stated  with  its  qualifications  and 
the  reasons  for  it  by  Mr.  Greenleaf  in  his 
work  on  Evidence,  vol.  1,  sees.  462  to  464 
inclusive,  that  nothing  need  be  added  to 
it  here  except  a  reference  to  the  decisions 
cited  in  his  notes  to  those  sections."  When 
it  appears  that  the  witness  has  at  other 


times  made  statements  inconsistent  with 
his  testimony,  and  it  is  therefore  plain  that 
he  must  have  been  false  at  one  time  or  the 
other,  the  party  calling  him  cannot  put  in 
evidence  to  show  that  at  still  other  times 
the  witness  has  made  statements  in  accor- 
dance with  his  testimony.  Com.  v.  Jen- 
kins, 10  Gray,  485,  490;  Hewitt  v.  Corey, 
150  Mass.  445.  But  where  a  witness  is 
sought  to  be  impeached  by  evidence  tend- 
ing to  show  that  at  the  time  of  giving  his 
evidence  he  is  under  a  strong  bias,  or  in 
such  a  situation  as  to  put  him  under  a  sort 
of  moral  duress  to  testify  in  a  particular 
way,  or  where  an  attempt  is  made  to  im- 
peach the  credit  of  a  witness  by  showing 
that  he  formerly  withheld  or  concealed  the 
facts  to  which  he  had  now  testified,  ex- 
planatory evidence  of  the  behavior  of  the 
witness  either  by  the  witness  himself  or 
others  is  admissible. 

In  Massachusetts,  by  statute.  Pub.  Stat. 
c.  169,  §  22,  a  party  producing  a  witness 
may  prove  that  he  has  made  at  other  times 
statements  inconsistent  with  his  present 
testimony,  but  first,  the  circumstances  of 
the  supposed  statement  sufl^icient  to  desig- 
nate the  particular  occasion  must  be  men- 
tioned to  witness,  and  he  must  be  asked 
whether  or  not  he  has  made  such  state- 
ments, and  if  so,  allowed  to  explain  them. 
Com.  V.  Donahoe,  133  Mass.  407.  And 
if  the  witness  states  immaterial  facts  there 
is  no  ground  for  exception  if  the  judge  re- 
fuses to  allow  evidence  of  prior  statements 
of  the  witness  inconsistent  with  his  state- 
ment in  evidence,  to  be  put  in.  Batchel- 
der  V.  Batchelder,  139  Mass.  1. 

And  this  rule  extends  to  a  defendant  in 
a  criminal  case,  who  testifies  in  his  own 
behalf.  Previous  statements  of  his,  incon- 
sistent with  his  testimony,  may  be  shown. 
Com.  V.  Tolliver,  119  Mass.  312. 

Statements  of  the  witness  indicating  a 
bias  towards  a  party,  or  otherwise  affecting 
his  credibility,  are  considered  relevant,  .so 
as  to  allow  contradiction.  Scott  r.  State, 
64  Ind.  400. 


CHAP.    III.]  EXAMINATION    OF   "WITNESSES.  613 

considered  indispensable,  from  a  sense  of  justice  to  the  witness ; 
for  as  the  direct  tendency  of  the  evidence  is  to  impeach  his  veracity, 

witness.  Now,  tho  usual  practice  of  the  courts  below,  and  a  practice  to  which  we  are 
not  aware  of  any  exception,  is  this  ;  if  it  be  intended  to  bring  the  credit  of  a  witness 
into  cjuestion  by  proof  of  anything  that  he  may  have  said  or  declared,  touching  the 
cause,  the  witness  is  hrst  asked,  upon  cross-examination,  whether  or  no  he  has  said  or 
declared  that  which  is  intended  to  be  j)roved.  If  the  witness  admits  tlie  words  or 
declarations  imputed  to  him,  the  proof  on  the  other  side  becomes  unnecessary  ;  and 
the  witness  lias  an  opportunity  of  giving  such  reason,  explanation,  or  exculpation  of 
his  conduct,  if  any  there  may  be,  as  the  jjarticular  circumstances  of  the  transaction  may 
happen  to  furnish;  and  thus  the  whole  matter  is  brought  before  tlie  court  at  once,  which, 
in  our  opinion,  is  the  most  convenient  course.  (6)  If  the  witness  denies  the  words  or 
declarations  imputed  to  him,  the  adverse  party  lias  an  opportunity  afterwards  of  con- 
tending that  the  matter  of  the  speech  or  declaration  is  such,  that  he  is  not  to  be  bound 
by  the  answer  of  the  witness,  but  may  contradict  and  falsify  it ;  and,  if  it  be  found  to 
be  such,  his  proof  in  contradiction  will  be  received  at  the  proper  season.  If  the  witness 
declines  to  give  any  answer  to  the  question  proposed  to  him,  by  reason  of  the  tendency 
thereof  to  criminate  himself,  and  the  court  is  of  opinion  that  he  cannot  be  compelled  to 
answer,  the  adverse  party  has,  in  this  instance,  also,  his  subsequent  opportunity  of  ten- 
dering his  proof  of  the  matter,  which  is  received,  if  by  law  it  ought  to  be  received. 
But  the  possibility  that  the  witness  may  decline  to  answer  the  question  affords  no  sutfi- 
cient  reason  for  not  giving  him  the  opportunity  of  answering,  and  of  offering  such 
explanatory  or  exculpatory  matter  as  I  have  before  alluded  to  ;  and  it  is,  in  our  opin- 
ion, of  great  importance  that  this  opportunity  should  be  thus  afforded,  not  only  for  the 
purpose  already  mentioned,  but  because,  if  not  given  in  the  hrst  instance,  it  maj^  be 
wholly  lost;  for  a  witness,  who  has  been  examined,  and  has  no  reason  to  suppose  that 
his  further  attendance  is  requisite,  often  departs  the  court,  and  may  not  be  found  or 
brought  back  until  the  trial  be  at  an  end.  So  that,  if  evidence  of  this  sort  could  be  ad- 
duced on  the  sudden  and  by  surprise,  without  any  previous  intimation  to  the  witness 
or  to  the  party  producing  him,  great  injustice  might  be  done;  and,  in  our  opinion,  not 
uufrequently,  would  be  done  both  to  the  witness  and  the  party;  and  this  is  not  only  in 
the  case  of  a  witness  called  by  a  plaintiff  or  prosecutor,  but  equally  so  in  the  case  of  a 
witness  called  by  a  defendant;  and  one  of  the  great  objects  of  the  course  of  proceeding, 
established  in  our  courts,  is  the  prevention  of  surprise,  as  far  as  practicable,  upon  any 
person  who  may  appear  therein."  The  Queen's  Case,  2  Brod.  &  Bing.  313,  314.  In  the 
United  States,  the  same  course  is  understood  to  be  generally  adopted,  except  in  Maine 
(Ware  v.  Ware,  8  Greenl.  42),  and  perhaps  in  Massachusetts  (Tucker  v.  Welsh,  17 
Mass.  160).  But  see  Brown  v.  Bellows,  4  Pick.  188.  The  utility  of  this  prac- 
tice, and  of  confronting  the  two  opposing  witnesses,  is  illustrated  by  a  case  men- 
tioned by  Mr.  Justice  Cowen,  in  his  notes  to  Philli{ts  on  Evidence,  vol.  ii.  p.  744 
(n.  533  to  Phil.  Evid.  308);  "in  which  a  highly  respectable  witness  sought  to  be  im- 
peached through  an  out-of-door  conversation  by  another  witness,  who  seemed  very 
willing  to  bring  him  into  a  contradiction,  upon  both  being  placed  on  the  stand,  fur- 
nished such  a  distinction  to  the  latter  as  corrected  his  memory,  and  led  him,  in  half  a 
minute,  to  acknowledge  that  he  was  wrong.  The  difference  lay  in  only  one  word.  The 
first  witness  had  now  sworn,  that  he  did  not  rely  on  a  certain  firm  as  being  in  good 
credit  ;  for  he  was  not  well  informed  on  the  subject.  The  former  words  imputed  to 
him  were  a  plain  admission  that  he  was  fully  informed,  and  did  rely  on  their  credit. 
It  turned  out  that,  in  his  former  conversation,  he  spoke  of  a  partnership,  from  which 
one  name  was  soon  afterward  withdrawn,  leaving  him  now  to  speak  of  the  latter  firm, 
thus  weakened  by  the  withdrawal.  In  regard  to  the  credit  of  the  first  firm,  he  had,  in 
truth,  been  fully  informed  by  letters.  With  respect  to  the  last,  he  had  no  information. 
The  sounil  in  the  titles  of  the  two  firms  was  so  nearly  alike,  that  the  ear  would  easily 
confound  them;  and,  had  it  not  been  for  the  colloquium  thus  brought  on,  an  apparent 
contradiction  would  doubtless  have  been  kept  on  foot,  for  various  purposes,  through  a 
long  trial.  It  involved  an  inquiry  into  a  credit  which  had  been  given  to  another,  on 
the  fraudulent  representations  of  the  defendant."  Mr.  Starkie,  for  a  different  purpose, 
mentions  another  case,  of  similar  character,  where  the  judge  understood  the  witness  to 

(b)  If  the  witness  says  he  cannot  re-     the  introduction  of  evidence  that  he  did. 
member  whether  he  spoke  the  words  or     Payne  v.  State,  60  Ala.  80. 
not,  this  is  a  sufficient  foundation  to  allow 


614  LAW    OP    EVIDENCE.  [PART    III. 

common  justice  requires  that,  by  first  calling  his  attention  to  the 
subject,  he  should  have  an  opportunity  to  recollect  the  facts,  and, 
if  necessary,  to  correct  the  statement  already  given,  as  well  as 
by  a  re-examination  to  explain  the  nature,  circumstances,  mean- 
ing, and  design  of  what  he  is  proved  elsewhere  to  have  said.2(c) 
And  this  rule  is  extended,  not  only  to  contradictory  statements 
by  the  witness,  but  to  other  declarations,  and  to  acts  done  by  him, 
through   the   medium  of   verbal  communications  or  correspon- 

testify  that  the  prisoner,  who  was  charged  with  forgery,  said,  "  I  oau  the  drawer, 
acceptor,  and  indorser  of  the  bill ;  "  whereas  the  words  were,  "  I  know  the  drawer, 
acceptor,  and  indorser  of  the  bill."     1  Stark.  Evid.  484. 

2  Keg.  y.  St.  George,  9  C.  &  P.  483,  489  ;  Carpenter  v.  Wall,  11  Ad.  &  El.  803. 
On  this  subject,  the  following  observations  of  Lord  Langdale  deserve  great  consid- 
eration :  "I  do  not  think,"  said  he,  "that  the  veracity  or  even  the  accuracy  of  an 
ignorant  and  illiterate  person  is  to  be  conclusively  tested  by  comparing  an  affidavit  which 
he  has  made,  with  his  testimony  given  upon  an  oral  examination  in  open  court.  We 
have  too  much  experience  of  the  great  infirmity  of  affidavit  evidence.  When  the 
witness  is  illiterate  and  ignorant,  the  language  presented  to  the  court  is  not  his  ;  it  is, 
and  must  be,  the  language  of  the  person  who  prepares  the  affidavit  ;  and  it  may  be, 
and  too  often  is,  the  expression  of  that  person's  erroneous  inference  as  to  the  meaning 
of  the  language  used  by  the  witness  himself  ;  and  however  carefully  the  affidavit  may 
be  read  over  to  the  witness,  he  may  not  understand  what  is  said  in  language  so  differ- 
ent from  that  which  he  is  accustomed  to  use.  Having  expressed  his  meaning  in  his 
own  language,  and  finding  it  translated  by  a  person  on  whom  he  relies,  into  language 
not  his  own,  and  which  he  does  not  perfectly  understand,  he  is  too  apt  to  acquiesce  ; 
and  testimony  not  intended  by  him  is  brought  before  the  court  as  his.  Again,  evidence 
taken  on  affidavit,  being  taken  ex  ■parte,  is  almost  always  incomplete,  and  often  inac- 
curate, sometimes  from  partial  suggestions,  and  sometimes  from  the  want  of  suggestions 
and  inquiries,  without  the  aid  of  which  the  witness  may  be  unable  to  recall  the  con- 
nected collateral  circumstances,  necessary  for  the  correction  of  the  first  suggestions  of 
Ms  memory,  and  for  his  accurate  recollection  of  all  that  belongs  to  the  subject.  For 
these  and  other  reasons,  I  do  not  think  that  discrepancies  between  the  affidavit  ajid  the 
oral  testimony  of  a  witness  are  conclusive  against  the  testimony  of  the  witness.  It  is 
further  to  be  observed,  that  witnesses,  and  particularly  ignorant  and  illiterate  wit- 
nesses, must  always  be  liable  to  give  imperfect  or  eiToneous  evidence,  even  when 
orally  examined  in  open  court.  The  novelty  of  the  situation,  the  agitation  and  hurry 
which  accompanies  it,  the  cajolery  or  intimidation  to  which  the  witnesses  may  be  sub- 
jected, the  want  of  questions  calculated  to  excite  those  recollections,  which  might  clear 
up  every  difficulty,  and  the  confusion  occasioned  by  cross-examination,  as  it  is  too 
often  conducted,  may  give  rise  to  important  errors  and  omissions  ;  and  the  truth  is  to 
be  elicited,  not  by  giving  equal  weight  to  every  word  the  witness  may  have  uttered, 
but  by  considering  all  the  words  with  reference  to  the  particular  occasion  of  saying 
them,  and  to  the  personal  demeanor  and  deportment  of  the  witness  during  the  examina- 
tion. All  the  discrepancies  which  occur,  and  all  that  the  witness  says  in  respect  of 
them,  are  to  be  carefully  attended  to  ;  and  the  result,  according  to  the  special  circum- 
stances of  each  case,  may  be,  either  that  the  testimony  must  be  altogether  rejected,  on 
the  ground  that  the  witness  has  said  that  which  is  untrue,  either  wilfully  or  under  self- 
delusion,  so  strong  as  to  invalidate  all  that  he  has  said  ;  or  else  the  result  must  be, 
that  the  testimony  must,  as  to  the  main  purpose,  be  admitted,  notwithstanding  discre- 
pancies which  may  have  arisen  from  innocent  mistake,  extending  to  collateral  matters, 
but  perhaps  not  affecting  the  main  question  in  any  important  degree."  See  Johnston ij. 
Todd,  5  Beav.  600-602.  See  McKinney  v.  Neil,  1  McLean,  540  ;  Hazard  v.  N.  Y.  & 
Providence  R.  R.,  2  R.  I.  62. 

(c)  As  has  been  previously  said,  when  credibility  impeached  by  proof  of  former 

a  party  to  a  suit  testifies  in  his  own  behalf,  inconsistent  statements.    Brubaker  v.  Tay- 

he  stands  in  the  same  position  as  anj'  wit-  lor,  76  Pa.  St.  83. 
ness.     He  is  liable,  therefore,  to  have  his 


CHAP.    III.]  EXAMINATION    OF   WITNESSES.  616 

dence,  which  are  offered  with  the  view  either  to  contradict  his 
testimony  in  chief,  or  to  prove  him  a  corrupt  witness  himself,  or 
to  have  been  guilty  of  attempting  to  corrupt  others. -"^  (t7) 

§  463.  Mode  of  impeachment.  A  similar  principle  prevails  in 
cross-examining  a  witness  as  to  the  contents  of  a  letter,  or  other 
paper  written  by  him.  The  counsel  will  not  be  permitted  to  rep- 
resent, in  the  statement  of  a  question,  the  conteMs  of  a  letter,  and 
to  ask  the  witness  whether  he  wrote  a  letter  to  any  person  with 
such  contents,  or  contents  to  the  like  effect;  without  having  first 
shown  to  the  witness  the  letter,  and  having  asked  him  whether 
he  wrote  that  letter,  and  his  admitting  that  he  wrote  it.  For  the 
contents  of  every  written  paper,  according  to  the  ordinary  and 
well-established  rules  of  evidence,  are  to  be  proved  by  the  paper 
itself,  and  by  that  alone,  if  it  is  in  existence.^  (a)     But  it  is  not 

8  See  2  Brod.  &  Binp;.  300,  313  ;  1  Mood.  &  Malk.  473.  If  the  witness  does  not 
recollect  the  conversation  imputed  to  him,  it  may  be  proved  by  another  witness,  ]iro- 
vided  it  is  relevant  to  the  matter  in  issue.  Crowley  v.  Page,  7  C.  &  P.  789,  per  Parke, 
B.  The  contrary  seems  to  have  been  ruled  some  years  before,  in  Pain  v.  Beeston,  1 
M.  &  Rob.  20,  per  Tiiidal,  C.  J.  But  if  he  is  asked,  upon  cross-examination,  if  he 
will  swear  that  he  has  not  said  so  and  so,  and  he  answers  that  he  will  not  swear  that 
he  has  not,  the  party  cannot  be  called  to  contradict  him.  Long  v.  Hitchcock,  9  C.  & 
P.  619,  supra,  §  449.  If  he  denies  having  made  the  contradictory  statements  inquired 
of,  and  a  witness  is  called  to  prove  that  he  did,  the  particular  words  must  not  be  put, 
but  the  witness  must  be  required  to  relate  what  passed.  Hallett  y.  Cousens,  2  M.  & 
Rob.  238.  This  contradiction  may  be  made  out  by  a  series  of  documents.  Jackson  v. 
Thomason,  8  Jur.  N.  s.  134. 

1  The  Queen's  Case,  2  Brod.  &  Bing.  286  ;  supra,  §§  87,  88  ;  Bellinger  v.  People, 
8  Wend.  595,  598 ;  Rex  v.  Edwards,  8  C.  &  P.  26  ;  Reg.  v.  Taylor,  Id.  726.  If  the 
paper  is  not  to  be  had,  a  certified  copy  may  be  used.  Reg.  v.  Shellard,  9  C.  &  P.  277. 
So,  where  a  certified  copy  is  in  the  case  for  other  purposes,  it  may  be  used  for  this  also. 
Davies  v.  Davies,  9  C.  &  P.  253.  But  the  witness,  on  his  own  letter  being  shown  to 
him,  cannot  be  asked  whether  he  wrote  it  in  answer  to  a  letter  to  .him  of  a  certain 
tenor  or  import,  such  letter  not  being  produced.  See  McDonnell  v.  Evans,  16  Jur.  103, 
where  the  rule  in  question  is  fully  discussed. 

{d)  But  the  witness  cannot  be  cross-  viously  given.     Bennett  i".  Syndicate  Ins. 

examined  as  to  irrelevant  matter  in  order  Co.,  43  Minn.  48.     Where  a  witness  upon 

to  contradict  him  by  showing  the  contents  a  second  trial  contradicts  his  testimony  on 

of  a  letter  written  by  him  (Com.  v.  Schaff-  the  first,  he  may  give  his  reasons  therefor, 

iier,  146  Mass.  514);  nor  if  so  cross-exam-  State  v.   Reed,   62  Me.   129.     And,  when 

ined  can  he  be  contradicted  by  proof  of  acts  are  shown  for  the  purpose  of  imput- 

previous  inconsistent  statements  as  to  said  ing  fraud  to  a  witness,   he  may  explain 

irrelevant  matter.     People  v.    Greenwall,  those  acts.     Janvriu  v.  Fogg,  49  N.  H. 

108  N.  Y.  301.     In  accordance  with  the  340. 

statement  of  the  general  principle  by  the  {a)  Richmond  v.   Sundburg,  77  Iowa, 

author,  it  is  held  that  upon  cross-examina-  258;  Stampers.   GriflSn,  12  Ga.  450.     If 

tion  of  a  witness  a  stenographic  report  of  a  Jtarty,  for  the  purpose  of  discrediting  a 

his  testimony,  given  upon  a  former  trial,  witness,  by  showing  a  bias,  offers  in  evi- 

may  be  put  in  evidence  to  contradict  the  dence  a  letter  from  the  witness  to  himself, 

witness,   by  the   stenographer   who    took  he  may  also,  for  the  purpose  of  explaining 

the  same  if  the  witness  has  been  specially  it,  read  a  letter  from  himself  to  which  the 

interrogated  on  the  point  whether  his  tes-  letter  of  the  witness  is  a  reply.     Trischet 

timony   is   the  same  as   he   gave   in   the  v.  Hamilton  Insurance  Co.,  14  Gray,  456. 

former  trial,  and  insists  that  he  has  not  The  English  courts  hold  that  it  is  compe- 

changed  or  added  to  the  testimony  pre-  tent  to  cross-examine  the  party  when  of- 


616  LAW   OP   EVIDENCE.  [PART  III. 

required  that  the  whole  paper  should  be  shown  to  the  witness. 
Two  or  three  lines  only  of  a  letter  may  be  exhibited  to  him,  and  he 
may  be  asked,  whether  he  wrote  the  part  exhibited.  If  he  denies, 
or  does  not  admit,  that  he  wrote  that  part,  he  cannot  be  examined 
as  to  the  contents  of  such  letter,  for  the  reason  already  given; 
nor  is  the  opposite  counsel  entitled,  in  that  case,  to  look  at  the 
paper. 2  And  if  lie  admits  the  letter  to  be  his  writing,  he  cannot 
be  asked  whether  statements,  such  as  the  counsel  may  suggest, 
are  contained  in  it,  but  the  whole  letter  itself  must  be  read,  as 
the  only  competent  evidence  of  that  fact.^  According  to  the  ordi- 
nary rule  of  proceeding  in  such  cases,  the  letter  is  to  be  read  as 
the  evidence  of  the  cross-examining  counsel  in  his  turn,  when  he 
shall  have  opened  his  case.  But  if  he  suggests  to  the  court,  that 
he  wishes  to  have  the  letter  read  immediately,  in  order  to  found 
certain  questions  upon  its  contents,  after  they  shall  have  been 
made  known  to  the  court,  which  otherwise  could  not  well  or 
effectually  be  done,  that  becomes  an  excepted  case ;  and  for  the 
convenient  administration  of  justice,  the  letter  is  permitted  to  be 
read,  as  part  of  the  evidence  of  the  counsel  so  proposing  it,  sub- 
ject to  all  the  consequences  of  its  being  considered.*  (b) 

§  464.  Same  subject.  If  the  paper  in  question  is  lost,  it  is 
obvious  that  the  course  of  examination,  just  stated,  cannot  be 
adopted.  In  such  case,  it  would  seem,  that  regularly  the  proof 
of  the  loss  of  the  paper  should  first  be  offered,  and  that  then  the 
witness  may  be  cross-examined  as  to  its  contents ;  after  which  he 
may  be  contradicted  by  secondary  evidence  of  the  contents  of  the 
paper.  But  where  this  course  would  be  likely  to  occasion  incon- 
venience, by  disturbing  the  regular  progress  of  the  cause,  and 
distracting  the  attention,  it  will  always  be  in  the  power  of  the 
judge,  in  his  discretion,  to  prevent  this  inconvenience,  by  post- 
poning the  examination,  as  to  this  point,  to  some  other  stage  of 
the  cause.  1 

2  Reg.  V.  Duncombe,  8  C.  &  P.  369. 

8  Ibid.  ;  2  Brod.  &  Bing.  288. 

4  The  Queen's  Case,  2  Brod.  &  Bing.  289,  290. 

1  See  McDonnell  v.  Evans,  16  Jur.  103  ;  11  Com.  B.  930. 

fered  to  support  his  own  case,  as  to  the  rule,   laid   down   in   The    Queen's    Case, 

contents  of  an  affidavit  or  letter  not  pro-  supra,  has  been  reversed  by  the  Common- 

duced.     Sladdeu  v.   Sergeant,   1   F.    &  F.  Law  Procedure  Act,  17  &  18  Vict.  c.  125, 

322  ;  Farrow  v.  Blomfield,  Id.  653.     So,  §§    24,    103,    and   28    &   29   Vict.  c.   13, 

too,  as  to  whether  he  had  read  a  letter  of  §§  1,   5. 

a  certain  date  and  in  certain  terms.     Ire-  {b)  Romertze   v.   East  River  National 

land  V.  Stiff,  Id.  340.     So,  also,  as  to  the  Bank.  49  N.  Y.    577  ;  Hosiner  v.    Groat, 

rules  of  a  society  to  which  the  party  be-  143  Mass.  16. 
longed.     Minns  v.  Smith,  Id.  318.      This 


CHAP.    III.]  EXAMINATION   OP  WITNESSES.  617 

§  465.  Same  subject.  A  witness  Cannot  be  asked  on  cross- 
examination,  whetlier  he  has  written  such  a  thing,  stating  its  par- 
ticular nature  or  purport;  the  proper  course  being  to  put  the 
writing  into  his  hands,  and  to  ask  him  whether  it  is  his  writing. 
And  if  he  is  asked  generally,  whether  he  has  made  representa- 
tions, of  the  particular  nature  stated  to  him,  the  counsel  will  be 
required  to  specify,  whether  the  question  refers  to  representations 
in  writing,  or  in  words  alone;  and  if  the  former  is  meant,  the 
inquiry,  for  the  reasons  before  mentioned,  will  be  suppressed, 
unless  the  writing  is  produced.^  But  whether  the  witness  may 
be  asked  the  general  question,  whether  he  has  given  any  account, 
by  letter  or  otherwise,  differing  from  his  present  statement,  —  the 
question  being  proposed  without  any  reference  to  the  circum- 
stance, whether  the  writing,  if  there  be  any,  is  or  is  not  in 
existence,  or  whether  it  has  or  has  not  been  seen  by  the  cross-ex- 
amining counsel, —  is  a  point  which  is  considered  still  open  for 
discussion.  But  so  broad  a  question,  it  is  conceived,  can  be  of 
very  little  use,  except  to  test  the  strength  of  the  witness's  mem- 
ory, or  his  confidence  in  assertion;  and,  as  such,  it  may  well  be 
suffered  to  remain  with  other  questions  of  that  class,  subject  to 
the  discretion  of  the  judge. ^ 

§  466.  Same  subject.  If  the  memory  of  the  witness  is  refreshed 
hy  a  paper  put  into  his  hands,  the  adverse  party  may  cross-exam- 
ine the  witness  upon  that  paper,  without  making  it  his  evidence 
in  the  cause.  But  if  it  be  a  book  of  entries,  he  cannot  cross- 
examine  as  to  other  entries  in  the  book  without  making  them  his 
evidence.^  But  if  the  paper  is  shown  to  the  witness  merely  to 
prove  the  handwriting,  this  alone  does  not  give  the  opposite  party 
a  right  to  inspect  it,  or  to  cross-examine  as  to  its  contents.^  And 
if  the  paper  is  shown  to  the  witness  upon  his  cross-examination, 
and  he  is  cross-examined  upon  it,  the  party  will  not  be  bound  to 
have  the  paper  read,  until  he  has  entered  upon  his  own  case. ^  (a) 

§  467.  Re-examination.     After  a  witness  has  been  cross-exam- 

1  The  Queen's  Case,  2  Brod.  &  Ring.  292-294. 

2  This  question  is  raised  and  acutely  treated  in  Phil.  &  Am.  on  Evid.  932-938.  Sep 
also  Eeg.  v.  Shellard,  9  C.  &  P.  277  ;  Reg.  v.  Holden,  8  C.  &  P.  606. 

1  Gregory  v.  Tavernor,  6  C.  &  P.  280  ;  supra,  §  437,  n.  And  see  Stephens  v.  Foster, 
6  C.  &  P.  289. 

2  Russell  V.  Rider,  6  C.  &  P.  416  ;  Sinclair  v.  Stevenson,  1  C.  &  P.  582 ;  s.  c.  2 
Bing.  514  ;  siqvn,  §  437,  n. 

8  Holland  v.  Reeves,  7  C.  &  P.  36. 

(a)  If,  on  cross-examination,  the  examin-  not  be   compelled   to   put   the  letter  in 

ing  counsel  requests  the  witness  to  produce  evidence  or  to  read  the  letter  to  the  juiy, 

a  letter  to  which  the  witness  refers,  and  ex-  Carradine  v.  Hotchkiss,  120  N.  Y.  611. 
amining  counsel  reads  the  letter,   he  can- 


618  LAW   OP   EVIDENCE.  [PART   III. 

ined  rnspecting  a  former  statement  made  by  him,  the  party  who 
called  him  has  a  right  to  re-examine  him  to  the  same  matter. ^ 
The  counsel  has  a  right,  upon  such  re-examination,  to  ask  all 
questions  which  may  be  proper  to  draw  forth  an  explanation  of 
the  sense  and  meaning  of  the  expressions,  used  by  the  witness  on 
cross-examination,  if  they  be  in  themselves  doubtful ;  and  also  of 
the  motive  by  which  the  witness  was  induced  to  use  those  ex- 
pressions ;  {a)  but  he  has  no  right  to  go  further  and  to  introduce 
matter  new  in  itself,  and  not  suited  to  the  purpose  of  explaining 
either  the  expressions  or  the  motives  of  the  witness.^  This  point, 
after  having  been  much  discussed  in  The  Queen's  Case,  was 
brought  before  the  court  several  years  afterwards,  when  the 
learned  judges  held  it  as  settled,  that  proof  of  a  detached  state- 
ment, made  by  a  witness  at  a  former  time,  does  not  authorize 
proof,  by  the  party  calling  that  witness,  of  all  that  he  said  at  the 
same  time,  but  only  of  so  much  as  can  be  in  some  way  connected 
with  the  statement  proved.  ^  Therefore,  where  a  witness  had  been 
cross-examined  as  to  what  the  plaintiff  said  in  a  particular  con- 
versation, it  was  held  that  he  could  not  be  re-examined  as  to  the 
other  assertions,  made  by  the  plaintiff  in  the  same  conversation, 
but  not  connected  with  the  assertions  to  which  the  cross-examina- 

^  In  the  examination  of  witnesses  in  chancery  under  a  commission  to  take  depo- 
sitions, the  plaintiff  is  not  allowed  to  re-examine,  unless  upon  a  special  case,  and  then 
only  as  to  matters  not  comprised  in  the  former  interrogatories.  King  of  Hanover  v. 
Wheatley,  4  Beav.  78. 

^  Such  was  the  opinion  of  seven  out  of  eight  judges,  whose  opinion  was  taken  in  the 
.'Souse  of  Lords,  in  The  Queen's  Case,  as  delivered  by  Lord  Tenterden,  2  Brod.  k  Bing. 
'297.  The  counsel  calling  a  witness  who  gives  adverse  testimony,  cannot,  in  re-exam- 
ination, ask  the  witness  whether  he  has  not  given  a  different  account  of  the  matter  to 
the  attorney.  Winter  v.  Butt,  2  M.  &  Kob.  357.  See  supra,  §  444.  See  also  Holds- 
worth  V.  Mayor  of  Dartmouth,  Id.  153.  But  he  may  ask  the  question  upon  his  exam- 
ination in  chief.  Wright  v.  Beckett,  1  M.  &  Rob.  414  ;  Dunn  v.  Aslett,  2  M.  &  Rob. 
122. 

3  Prince  v.  Samo,  7  Ad.  &  El.  627. 

(a)    Dole   V.    Wooldredge,    142   Mass.  It  is  too  suggestive  a  method  of  re-exami- 

184.     So   if,   on   cross-examination,   facts  nation.     On  such  re-examination  what  he 

have  been   elicited  which  tend  to  shake  has  said  in  chief  should  be  omitted  and 

the  credibility  of  a  witness,  he  may,  on  not  suggested  to  him.     Still  the  question 

re-examination,  be  asked   such  questions  is  within  the  discretion  of  the  court,  and 

as  tend  to  explain  those   facts.      United  error  cannot  be  assigned  because  of  the 

States  V.  Ikrrels  of  High  Wines,  8  Blatchf.  allowance  of    such  interrogatory   (Stoner 

475.     AVhen  the  object  of  a  question  on  re-  v.  Devilbiss,  70  Md.  160;  Ohlsen  v.  Ter- 

examination  is  to  obtain  an  explanation  of  rero,  L.  R.  10  Ch.  App.    127  ;  Lawder  v. 

what  the  witness  meant  by  his  testimony  Lawder,  5  Ir.   L.   R.    N.    s.   27 ;  Wells  v. 

on  cross-examination,  it  is  not  proper  to  Jackson  Iron  Manuf.  Co.,  48  N.  H.  491), 

do  this  by  reciting  what  he  has  testified  unless  a  substantial  injury  is  done  by  such 

in  chief  and  contrasting  it  with  what  he  ruling,  in  the  exclusion  of  testimony  a 

.says    on    cross-examination,    by    way   of  party    might    otherwise     have     enjoyed, 

showing  the  witness,  unless  he  is  an  un-  Moody  r.  Rowell,   17  Pick.  498;  Gunter 

willing  and  hostile  one,  that  he  has  gotten  v.  Watson,  4  Jones  (N.  C. ),  L.  455. 
into  difficulty  and  must  work  his  way  out. 


CHAP.    III.]  EXAMINATION   OP   WITNESSES.  G19 

tion  related;  although  the  assertions  as  to  which  it  was  proposed 
to  re-examine  him  were  connected  with  the  subject-matter  of  the 
suif 

§  468.  Extent  of  right.  If  the  counsel  chooses  to  cross-examine 
the  witness  to  facts,  which  were  not  admissible  in  evidence,  the 
.other  party  has  a  right  to  re-examine  him  as  to  the  evidence  so 
given,  (a)  Thus,  where  issue  was  joined  upon  a  plea  of  prescrip- 
tion, to  a  declaration  for  trespass  in  G.,  and  the  plaintiff's  wit- 
nesses were  asked,  in  cross-examination,  questions  respecting  the 
user  in  other  places  than  G. ,  which  they  proved ;  it  was  held  that 
the  plaintiff,  in  re-examination,  might  show  an  interruption  in 
the  user  in  such  other  places.^  (b)  But  an  adverse  witness  will 
not  be  permitted  to  obtrude  such  irrelevant  matter,  in  answer  to 
a  question  not  relating  to  it;  and  if  he  should,  the  other  party 
may  either  cross-examine  to  it,  or  may  apply  to  have  it  stricken 
out  of  the  judge's  notes.^ 

§  469.  Contradictory  statements.  Where  evidence  of  contra- 
dictory statements  by  a  witness,  or  of  other  particular  facts,  as, 
for  example,  that  he  has  been  committed  to  the  house  of  correc- 
tion, is  offered  by  way  of  impeaching  his  veracity,  his  general 
character  for  truth  being  thus  in  some  sort  put  in  issue,  it  has 
been  deemed  reasonable  to  admit  general  evidence,  that  he  is  a 
man  of  strict  integrity,  and  scrupulous  regard  for  truth.  ^  (a)    But 

*  Prince  v.  Samo,  7  Ad.  &  El.  627.  In  this  case,  the  opinion  of  Lord  Tenterden, 
in  The  Queen's  Case,  2  Brod.  &  Biug.  298,  (luoted  in  1  Stark.  Evid.  180,  that  evidence 
of  the  whole  conversation,  if  connected  with  the  suit,  was  admissible,  thouo;h  it  were 
of  matters  not  touched  in  the  cross-examination,  was  considered  and  overruled. 

6  Blewett  V.  Tregonning,  3  Ad.  &  El.  554. 

6  Id.  554,  565,  581,  584. 

1  Phil.  &  Am.  on  Evid.  944  ;  Rex  v.  Clarke,  2  Stark.  241.  And  see  supra,  §§  54, 
55  ;  Paine  v.  Tilden,  5  Washb.  554  ;  Hadjo  v.  Gooden,  13  Ala.  718  ;  Sweet  v.  Sher- 
man, 6  Washb.  23. 

(a)  State  v.  Cardoza,  11  S.  C.  195  ;  in  which  he  had  given  an  account  of  mat- 
Goodman  V.  Kennedy,  10  Neb.  270.  Cf.  ters  materially  different  from  that  stated 
Schaser  v.  State,  36  Wis.  429.  at  the  trial.     Part  of  the  prior  examination 

{b)    In  New  Hampshire,  if  one  party  was  then  introduced  in  evidence  by  the 

puts    in    irrelevant    evidence,    the    other  defendant,  with  a  view  to  contradict  testi- 

party  may  reply  to  it.     Furbush  v.  Good-  mony  given  by  the  plaintiff  at  the  trial, 

win,  5  Fost.  425.     But  the  general  rule  is  Subsequently  the  plaintiff  was  permitted 

otherwise.      Mitchell  v.  Sellman,   5   Md.  to  introduce  testimony  to  the  effect  that 

376  ;    Shedden  v.   Patrick,  2  Sw.   &  Tr.  his  general  reputation  for  truth  and  ve- 

170.  racity,  in  the  neighborhood  in  which  he 

(a)  George  v.   Pilcher,  28  Gratt.  (Va.)  lived,  was  good.     It  was  held  on  appeal 

299  ;  State  v.  Cheny,  63  N.  C.  493  ;  Isler  that  this  was  in  accordance  with  the  rule, 

V.  Dewey,  71  N.  C.  14.     Thus,  in  a  case  that  where  a  witness  had  been  impeached 

where,  prior  to  the  trial  the  defendant  had  by  showing  that  he  has  made  statements 

examined  the  plaintiff  under  oath,  he  was,  out  of  court  contradictory  to  those  made 

during  his  cross-examination  as  a  witness,  at  the  trial,  evidence  of  his  general  good 

asked  whether  or  not  he  had  not  at  the  character  and  good  repute  for  truth  and 

prior  examination  made  certain  statements  veracity  may  be  introduced.     Louisville, 


620 


LAW   OF   EVIDENCE. 


[part   III. 


evidence,  that  he  has  on  other  occasioDS  made  statements,  similar 
to  what  he  has  testilied  in  the  cause,  is  not  admissible ;  ^  (<?*)  un- 

2  Bull.  N.  P.  294. 


New  Albany  &  Chicago  Railway  Co.  v. 
Fiawley,  110  Iiid.  26  ;  Clem  v.  State.  33 
lad.  418  ;  Clark  v.  Bond,  29  Ind.  555. 
Where  a  witness  admitted,  on  cross-exam- 
ination, that  he  had  been  prosecuted,  but 
not  tried,  for  perjury,  the  party  calling 
him  was  not  permitted  to  give  evidence  of 
his  general  good  character.  People  v.  Gay, 
1  Parker,  C.  R.  308  ;  s.  c.  3  Seld.  378  ; 
Wertz  V.  May,  21  Pa.  St.  274.  See  Har- 
rington t'.  Lincoln,  4  Gray,  563,  565-567. 
In  this  case,  a  witness  was  asked  in  cross- 
examination  for  the  avowed  purpose  of 
discrediting  him,  whether  he  had  not  been 
indicted  and  tried  for  setting  fire  to  his 
barn,  and  he  answered  in  the  affirmative, 
and  also  stated  that  he  was  acquitted  on 
the  trial  of  the  indictment.  In  reply  to  this 
cross-examination,  and  to  support  the 
credit  of  the  witness,  the  party  calling 
him  offered  evidence  as  to  his  reputatiou 
for  truth  and  veracity,  which  was  ad- 
mitted under  objection.  The  full  court 
decided  that  the  testimony  should  not  have 
been  admitted.  Thomas,  J.,  in  delivering 
the  opinion  of  the  court,  said  :  "If  the 
cross-examination  of  the  witness  showed 
that  he  had  been  charged  with  the  com- 
mission of  crime,  it  showed  also  that  upon 
fair  trial  he  had  been  fully  acquitted.  It 
left  his  character  as  it  found  it.  We 
think,  therefore,  the  evidence  as  to  his 
reputation  for  truth  and  integrity  should 
not  have  been  admitted.  Had  the  effect 
of  the  cross-examination  been  otherwise, 
we  are  not  prepared  to  say  the  reputatiou 
of  the  witness  for  truth  would  have  been 
put  in  issue.  The  doctrine  stated  in  the 
text-books  has  but  slight  foundation  of 
authority  to  rest  upon,  and  as  matter  of 
reason  will  not  bear  a  very  careful  prob- 
ing. The  case,  however,  does  not  render 
a  decision  of  the  point  necessary."  See 
also  Hey  wood  v.  Keed,  4  Gray,  574.  If 
evidence  be  introduced  tending  to  show 
that  a  witness  has  been  suborned,  this 
may  be  rebutted  by  evidence  of  his  good 
character.  People  v.  Ah  Fat,  48  Cal.  61. 
But  see  Heywood  v.  Reed,  4  Gray  (Mass.), 
574.  Proof,  on  cross-examination,  that  a 
witness  was  drunk  at  other  times  than 
when  the  facts  to  which  he  testifies  tran- 
spired, will  not  authorize  testimony  of  his 
good  reputation  for  sobriety,  in  rebuttal. 
McCai-ty  v.  Leary,  118  Mass.  509.  It  is 
admissible  to  ask  a  witness  if  he  has  not 
said  that  he  had  testified  for  the  defen- 
dant, but  if  called  again,  he  thought   he 


should  testify  for  the  plaintiff,  and  if  he 
does  not  recollect  making  such  a  state- 
ment, to  prove  that  he  did  .so.  Chapman 
V.  Coffin,  14  Gray,  454.  "And  it  seems," 
says  Judge  Redfield,  in  his  note  to  this 
section,  "  that  the  mere  attempt  to  im- 
peach a  witness,  by  inquiring  of  another 
witness  what  was  his  character  for  truth, 
will  justify  general  evidence  of  his  good 
character,  notwithstanding  the  witness  in- 
quired of  said  his  character  was  good.  Com. 
V.  Ingraham,  7  Gray,  46.  But  in  Brown 
V.  Mooers,  6  Gray,  451,  it  was  held  that 
where  the  character  of  the  witness  is  only 
attempted  to  be  imi)eached  by  proving 
contradictory  statements  made  by  him  out 
of  court,  he  could  not  be  sustained  by  gen- 
eral evidence  of  good  character  ;  and  the 
court  declare  that  the  text  in  the  preceding 
section  of  our  author  'is  not  law.'  .  .  . 
The  case  of  Brown  v.  Mooers  is  certainly 
too  narrow  in  its  restrictions.  For  if  the 
witness  is  clearly  shown  to  have  made 
contradictory  statements  about  the  mat- 
ter, he  is  surely  far  more  effectually  im- 
peached than  if  a  witness  were  asked  for 
his  character  for  truth,  and  declared  it  to 
be  good.  In  the  latter  case,  it  would  seem 
no  ground  had  been  laid  for  the  introduc- 
tion of  general  evidence  of  good  character, 
more  than  if  the  counsel  had  inquiied  of 
the  witness  himself  if  he  had  ever  been 
impeached  in  court,  and  he  had  replied  in 
the  negative.  But  in  the  former  case,  it 
is  obvious  the  witness's  character  for  truth 
is  seriously  damaged.  In  other  States, 
general  evidence  of  good  character  is  re- 
ceived ;  and  we  must  still  maintain  that 
our  author  is  fairly  warranted  in  saying 
that  it  should  be.  State  v.  Roe,  12  Vt. 
93  ;  and  cases  cited  before  in  this  note." 

{b)  People  V.  Doyell,  48  Cal.  85; 
Robb  V.  Hackley,  23  Wend.  50  ;  Conrad 
V.  Griffey,  11  How.  (U.  S.)  491;  Craig 
V.  Craig,  5  Rawle  (Pa.),  91,  overruling 
Henderson  v.  Jones,  infra ;  Smith  v. 
Stickney,  17  Barb.  (N."  Y.)  489.  See 
also  Smith  v.  Morgan,  38  Me.  468.  The 
cases  of  Cook  v.  Curtis,  6  H.  &  J.  (Md.) 
93;  McAleerv.  Horslev,  35  Md.  439;  Hen- 
derson V.  Jones,  10  S.  &  R.  (Pa.)  322; 
Coffin  V.  Anderson,  4  Black,  (ind.)  398, 
to  the  contrary,  seem  to  have  been 
founded  directly  or  indirectly  on  the  case 
of  Lutterell  v.  Reynell,  1  Mod.  282,  which 
long  ago  ceased  to  be  authority  in  Eng- 
land. Rex  V.  Parker,  3  Doug.  242.  In 
Maitland  v.  Cit.  Nat.  Bank,  40  Md.  540, 


CHAP.    III.] 


EXAMINATION   OF   WITNESSES. 


621 


less  where  a  design  to  misrepresent  is  charged  upon  the  witness, 
in  consequence  of  his  relation  to  the  party,  or  to  the  cause ;  in 
which  case,  it  seems,  it  may  be  proper  to  show  that  he  made  a 
similar  statement  before  that  relation  existed. ^(c)      So,   if  the 

8  2  Phil.  Evid.  445,  446, 


the  court  refuse  to  go  any  farther  than  re- 
quired by  the  exact  facts  of  the  prior 
cases  in  tliat  State.  Nor  can  an  admis- 
sion be  rebutted  by  evidence  of  contrary 
.statemeiiis.  Jute  §  209,  n.  In  Deshon 
V.  Merchant's  Ins.  Co.,  11  Met.  199,  209, 
it  was  laid  down  as  a  clear  rule  of  law 
that  a  witness  cannot  be  allowed  to  state, 
on  the  direct  examination,  with  the  view 
of  strengthening  his  testimony,  that  he 
communicated  to  third  persons  at  prior 
times,  the  same  or  other  particular  facts. 
In  Com.  V.  Wilson,  1  Gray,  340,  where, 
in  re-examination,  similar  testimony  was 
offered  for  a  like  purpose,  Shaw,  C.  J., 
said,  "  The  rule  excluding  such  testiniony 
is  confined  to  the  examination  in  chief, 
and  does  not  apply  to  a  case  where  the 
other  party  has  sought  to  impeach  the  wit- 
ness on  cross-examination.  The  purpose 
of  the  cross-examination  in  this  [larticu- 
lar  having  been  to  impeach  the  witness, 
the  question  may  be  put."  See  also  Bos- 
ton &  Wore.  R.  R.  (Jo.  V.  Dana,  1  Gray, 
83,  103. 

(c)  Hotchkiss  V.  Gen.  Ins.  Co.,  5  Hun 
(N.  Y. ),  101  ;  State  v.  Thomason,  1  Jones 
(N.  C),  L.  274;  People  v.  Doyell,  48  Cal. 
8.5.  Thus  in  a  case  in  Massachusetts, 
Hewitt  V.  Corey,  150  Mass.  445,  the  facts 
were  that  the  plaintiff,  a  married  woman, 
sued  for  the  conversion  of  a  horse,  which 
the  defendant  had  attached  as  property  of 
h'-r  husband.  The  question  was,  whether 
the  horse  belonged  to  her  or  to  her  hus- 
band. He  testified  in  her  behalf  that  he 
was  not  the  owner.  In  order  to  discredit 
his  testimony,  it  was  shown  on  his  cross- 
examination  tiiat  he  had  formerly  included 
it  in  a  mortgage  of  personal  property 
given  by  him;  but  he  added  that  he  did 
not  know  that  the  horse  was  included 
when  he  signed  the  mortgage,  and  that 
as  soon  as  he  found  that  it  was,  he  went  to 
the  mortgagees  and  told  them  that  the 
horse  did  not  belong  to  him,  and  ought 
not  to  be  embraced  in  the  mortgage.  This 
testimony  came  in  without  objection,  and 
the  defendant  made  no  motion  to  strike  it 
out  as  irrespective  or  incompetent.  The 
plaintiff  afterwards,  by  way  of  confirma- 
tion of  her  husband's  explanation,  called 
one  of  the  mortgagees,  who  testified,  that 
a   day  or  two,  perhaps  longer,  after  the 


mortgage  was  signed,  the  husband  came 
to  him  and  told  him  the  horse  did  not  he- 
long  to  him  and  ought  not  to  be  in  the 
mortgage.  This,  according  to  the  testi- 
mony, was  before  the  attachment  by  the 
defendant.  The  defendant  excepted  to 
the  admission  of  this  testimony  by  the 
mortgagee.  The  court  cites  the  case  of 
Com.  V.  Wilson,  1  Gray,  337,  340,  as 
holding  that  the  rule  excluding  such  testi- 
mony does  not  apply  to  a  case  where  the 
other  party  has  sought  to  impeach  the 
witness  on  cross-examination,  and  says 
that  this  decision  was  afiirmed  in  Com.  v 
Jerd<ins,  10  Gray,  485,  489,  490,  where  it 
is  said  that  such  confirmatory  evidence  is 
competent  where  a  witness  is  sought  to  be 
impeached  by  evidence  tending  to  show 
that,  at  the  time  of  giving  his  evidence, 
he  is  under  a  strong  bias,  or  in  such  a 
situation  as  to  put  him  under  a  sort  of 
moral  duress  to  testify  in  a  jiarticular  way; 
or  where  an  attempt  is  made  to  impeach 
the  credit  of  a  witness  by  showing  that  he 
formerly  withheld  or  concealed  the  facts  to 
which  he  has  now  testified.  The  court, 
however,  expressly  distinguishes  from  this 
case  the  case  where  it  appears  that  the  wit- 
ness has  at  other  times  made  statements 
inconsistent  with  his  testimony,  and  where 
it  is  plain  that  he  must  have  been  false  at 
one  time  or  the  other.  In  such  case  he 
is  discredited  by  reason  of  his  contradic- 
tory statements  at  different  times,  and  it 
is  no  restoration  of  his  credit  to  show  that 
at  still  other  times  he  has  made  statements 
in  accordance  with  his  testimony.  Hewitt 
V.  Corey,  supra.  In  some  States,  how- 
ever, it  is  held  that  when  evidence  of 
previous  statements,  contradictory  to  the 
testimony  of  the  witness  at  the  trial  upon 
material  facts,  has  been  introduced  in  evi- 
dence for  the  purpose  of  contradicting  the 
witness,  evidence  of  statements  similar  to 
those  given  by  him  in  his  evidence  in 
chief  and  made  about  the  time  correspond- 
ing with  those  made  on  the  trial,  may  be 
brought  in  to  corroborate  the  witness;  but 
that  this  rule  does  not  allow  evidence  of 
a  general  confirmatory  character  to  be  in- 
troduced, but  only  such  as  is  directly  op- 
posed to  the  contradictory  evidence  intro- 
duced for  the  purpose  of  impeaching  the 
credibility   of   the   witness.      Logansport 


622 


LAW   OF   EVIDENCE, 


[part   III, 


character  of  a  deceased  attesting  witness  to  a  deed  or  will  is  im- 
peached on  the  ground  of  fraud,  evidence  of  his  general  good 
character  is  admissible.*  But  mere  contradiction  among  wit- 
nesses examined  in  court  supplies  no  ground  for  admitting  general 
evidence  as  to  character,  ^((i) 

*  Doe  V.  Stephenson,  3  Esp.  284  ;  s.  c,  4  Esp.  50,  cited  and  approved  by  Ld.  El- 
lenboiough,  in  Bishop  of  Durham  v.  Beaumont,  1  Campb.  207-210,  and  in  Provis  v. 
Keed,  5  Bing.  435. 

5  Bishop  of  Durham  v.  Beaumont,  1  Campb.  207  ;  1  Stark,  Evid.  186  ;  Russell  v. 
Coffin,  8  Pick.  143,  154  ;  Starks  v.  People,  5  Denio,  106. 


&  Pleasant  Grove  Turnpike  Company  v. 
Heil,  118  Ind.  136.  In  prosecution  for 
rape,  if  the  prosecutrix,  having  been  ad- 
mitted to  testify  that  she  made  complaint 
immediately  after  the  fact,  is  impeached 
as  to  the  fact  of  this  complaint,  she  may 
be  supported  by  proving  that  she  has  out 
of  court  narrated  the  facts  as  testified  to 
by  her  at  the  trial.  Thompson  v  State, 
38  Ind.  39.  If  fraud  or  improper  conduct 
be  imputed,  the  supporting  evidence  will 
be  admitted.  Annesley  v.  Anglesea,  17 
How.  St.  Tr.  1348. 

(d)  There  is  considerable  conflict  in  the 
decisions,  in  regard  to  the  order  of  proof, 
and  the  course  of  trial,  in  the  difierent 
States.  In  some  of  the  States,  the  partj' 
is  only  required  to  make  a  prima  facie 
case  in  the  opening,  and  may  reserve  con- 
firmatory proof  in  support  of  the  very 
points  made  in  the  opening,  till  he  finds 
upon  what  points  his  opening  case  is 
attacked,  and  then  fortify  it  upon  those 
points.  Clayes  v.  Ferris,  10  Vt.  112.  But, 
in  this  State,  the  defendant  must  put  in 


all  his  evidence  in  the  first  instance,  and 
the  plaintiff  in  his  reply  is  confined  to 
fortifying  those  points  in  his  case  wliich 
are  attacked  by  defendant.  And,  in  some 
of  the  States,  it  is  understood,  that  this 
process  of  making  and  answering  the 
plaintiffs  case  is  allowed  to  be  repeated 
an  indefinite  number  of  times.  But,  at 
common  law,  the  plaintiff  puts  in  his 
whole  evidence  upon  every  point  which 
he  opens,  and  the  defendant  then  puts  in 
his  entire  case  ;  and  the  plaintiff's  reply 
is  limited  to  new  points,  first  opened  by 
defendant.  And  the  court  in  banc,  in 
passing  upon  the  sufficiency  of  plaintiff's 
case,  cannot  look  at  the  defendant's  evi- 
dence. Rawlings  v.  Chandler,  9  Exch. 
687.  And  it  is  held  to  rest  in  the  discre- 
tion of  the  judge,  subject  to  review  m 
banc,  at  what  stage  in  the  trial  evidence 
may  be  produced.  Wright  v.  Willcox,  9 
C.  B.  650.  The  judge  may  recall  a  wit- 
ness at  any  stage  of  the  trial,  and  examine 
or  cross-examine  at  his  discretion.  Rex 
V.  Watson,  6  C.  &  P.  653. 


CHAP.   IV.]  PUBLIC   DOCUMENTS.  623 


CHAPTER  IV. 


OP   WRITTEN    EVIDENCE. 


§  470.  Public  and  private  writings.  Writings  are  divisible  into 
two  Classes ;  namely,  Public  and  Private.  The  former  consists 
of  the  acts  of  public  functionaries,  in  the  executive,  legislative, 
and  judicial  departments  of  government,  including,  under  this 
general  head,  the  transactions  which  official  persons  are  required 
to  enter  in  books  or  registers,  in  the  course  of  their  public  duties, 
and  which  occur  within  the  circle  of  their  own  personal  knowl- 
edge and  observation.  To  the  same  head  may  be  referred  the 
consideration  of  documentary  evidence  of  the  acts  of  State,  the 
laws  and  judgments  of  courts  of  foreign  goverments.  Public 
writings  are  susceptible  of  another  division,  they  being  either 
(1)  judicial,  or  (2)  not  judicial ;  and,  with  respect  to  the  means 
and  mode  of  proving  them,  they  may  be  classed  into  (1)  those 
which  are  of  record,  and  (2)  those  which  are  not  of  record.  It  is 
proposed  to  treat,  first,  of  public  documents ;  and,  secondly,  of 
those  writings  which  are  private.  And,  in  regard  to  both  classes, 
our  inquiries  will  be  directed  (1)  to  the  mode  of  obtaining  an 
inspection  of  such  documents  and  writings;  (2)  to  the  method  of 
proving  them;  and  (3)  to  their  admissibility  and  effect. 

§  471.  Inspection  of  public  documents.  And,  first,  in  regard 
to  the  inspection  of  public  documents,  it  has  been  admitted, 
from  a  very  early  period,  that  the  inspection  and  exemplification 
of  the  records  of  the  king^s  courts  is  the  common  right  of  the  sub- 
ject. This  right  was  extended,  by  an  ancient  statute,^  to  cases 
where  the  subject  was  concerned  against  the  king.  The  exercise 
of  this  right  does  not  appear  to  have  been  restrained  until  the 
reign  of  Charles  II.,  when,  in  consequence  of  the  frequency  of 
actions  for  malicious  prosecution,  which  could  not  be  supported 
without  a  copy  of  the  record,  the  judges  made  an  order  for  the 
regulation  of  the  sessions  at  the  Old  Bailey  prohibiting  the  grant- 
ing of  any  copy  of  an  indictment  for  felony,  without  a  special 

M6  Ed.  III.,  in  the  Preface  to  3  Coke,  p.  iv. 


624  LAW   OF   EVIDENCE.  [PART   III. 

order,  upou  motion  in  open  court,  at  the  general  jail  delivery.  ^ 
This  order,  it  is  to  be  observed,  relates  only  to  indictments  for 
felony.  In  cases  of  misdemeanor,  the  right  to  a  copy  has  never 
been  questioned.^  But  in  the  United  States,  no  regulation  of 
this  kind  is  known  to  have  been  expressly  made ;  and  any  limi- 
tation of  the  right  to  a  copy  of  a  judicial  record  or  paper,  when 
applied  for  by  any  person  having  an  interest  in  it,  would  probably 
be  deemed  repugnant  to  the  genius  of  American  institutions.^ 

§  472.  Paper  in  hands  of  an  officer  of  court.  Where  writs,  or 
other  papers  in  cause,  are  officially  in  the  custody  of  an  officer  of 
the  court,  he  may  be  compelled  by  a  rule  of  court  to  allow  an  in- 
spection of  them,  even  though  it  be  to  furnish  evidence  in  a  civil 
action  against  himself.  Thus,  a  rule  was  granted  against  the 
marshal  of  the  King's  Bench  prison,  in  an  action  against  him 
for  an  escape  of  one  arrested  upon  mesne  process,  to  permit  the 
plaintiff's  attorney  to  inspect  the  writ  by  which  he  was  committed 
to  his  custody.^ 

§  473.  Records  of  inferior  tribunals.  In  regard  to  the  records 
of  inferior  tribunals,  the  right  of  inspection  is  more  limited.  As 
all  persons  have  not  necessarily  an  interest  in  them,  it  is  not 
necessary  that  they  should  be  open  to  the  inspection  of  all,  with- 
out distinction.  The  party,  therefore,  who  wishes  to  inspect  the 
proceedings  of  any  of  those  courts,  should  first  apply  to  that  court, 
showing  that  he  has  some  interest  in  the  dociwierit,  and  that  he 
requires  it  for  a  proper  purpose.^  If  it  should  be  refused,  the 
Court  of  Chancery,  upon  affidavit  of  the  fact,  may  at  any  time 
send,  by  a  writ  of  certiorari,  either  for  the  record  itself,  or  an  ex- 
emplification.    The  King's  Bench  in  England,  and  the  Supreme 

2  Orders  and  Directions,  16  Car.  II.,  prefixed  to  Sir  J.  Kelyng's  Reports,  Order  vii. 
"With  resi)ect  to  the  general  records  of  the  realm,  in  such  eases,  copies  are  obtained 
upon  application  to  the  attorney-general.  Legatt  v.  Tollervey,  14  East,  306.  But  if 
the  copy  were  obtained  without  order,  it  will  not,  on  that  account,  be  rejected.  Ibid.  ; 
Jordan  v.  Lewis,  Id.  305,  n.  (6)  ;  Caddy  v.  Barlow,  1  M.  &  Ry.  275.  But  Lord  Chief 
Justice  Willes,  in  Rex  i-.  Braugan,  1  Leach,  Cr.  Cas.  32,  in  the  case  of  a  prosecution 
for  robbery,  evidently  vexatious,  refused  an  application  for  a  copy  of  the  record,  on  the 
ground  tliat  no  order  was  necessary;  declaring,  that  "by  the  laws  of  the  realm  every 
prisoner,  upon  his  acquittal,  had  an  undoubted  right  and  title  to  a  copy  of  the  record 
of  such  acquittal,  for  any  use  he  might  think  fit  to  make  of  it ;  and  that,  after  a  de- 
mand of  it  had  been  made,  the  proper  officer  might  be  punished  for  refusing  to  make 
it  out."  A  strong  doubt  of  the  legality  of  the  order  of  16  Car.  II.  was  also  raised  in 
Browne  v.  Cumming,  10  B.  &  C.  70. 

3  Morrison  v.  Kelly,  1  W.  Bl.  385. 

*  Stone  V.  Crocker,  24  Pick.  88,  per  Morton,  J.  The  only  case,  known  to  the 
author,  in  which  the  English  rule  was  acted  on,  is  that  of  People  v.  Poyllon,  2  Caines, 
202,  in  which  a  copy  was  moved  for  and  granted. 

5  Fox  V.  Jones,  7  B.  &  C.  732. 

^  If  he  has  no  legal  interest  in  the  record,  the  court  may  refuse  the  application. 
Powell  V.  Bradbury,  4,  C.  B.  541 ;  infra,  §  559. 


CHAP.    IV.]  PUBLIC    DOCUMENTS.  625 

Courts  of  common  law  in  America,  have  the  same  power  by  man- 
damus;'^ and  this  whether  an  action  he  pending  or  not.-*^ 

§  474.  Quasi  public  records.  Tlicre  are  other  records  which 
partake  both  of  a  public  and  private  character,  and  arc  treated  as 
the  one  or  the  other,  according  to  the  relation  in  which  the  ap- 
plicant stands  to  them.  Thus,  the  books  of  a  corporation  are 
public  with  respect  to  its  members,  but  private  with  respect  to 
stsangers.^  In  regard  to  its  members,  a  rule  for  inspection  of  the 
writings  of  the  corporation  will  be  granted  of  course,  on  their 
application,  where  such  inspection  is  shown  to  be  necessary,  in 
regard  to  some  particular  matter  in  dispute,  or  where  the  grant- 
ing of  it  is  necessary,  to  prevent  the  applicant  from  suffering  in- 
jury, or  to  enable  him  to  perform  his  duties;  and  the  inspection 
will  then  be  granted,  only  so  far  as  is  shown  to  be  essential  to  that 
end. 2  But  a  stranger  has  no  right  to  such  rule,  and  it  will  not  be 
granted,  even  where  he  is  defendant  in  a  suit  brought  by  the 
corporation.  3  In  this  class  of  records  are  enumerated  parish 
books,*  trai.afer  books  of  the  East  India  Company,-^  public  lottery 
books,^  the  books  of  incorporated  banking  companies,'  (a)  a 
bishop's  registry  of  presentations,^  and  some  others  of  the  like 
kind.  If  an  inspection  is  wanted  by  a  stranger,  in  a  case  not 
within  this  rule  of  the  common  law,  it  can  only  be  obtained  by  a 
bill  for  a  discovery;  a  court  of  equity  permitting  a  discovery  in 
some  cases,  and  under  some  circumstances,  where  courts  of  law 
will  not  grant  an  inspection.^  And  an  inspection  is  granted  only 
where  civil  rights  are  depending;  for  it  is  a  constant  and  invari- 

2  Gresley  on  Evid.  pp.  115,  116  ;  Wilson  v.  Rogers,  2  Stra.  1242  ;  Rex  v.  Smith,  1 
Stra.  126,  Rex  v.  Tower,  4  M.  &  S.  162;  Herbert  v.  Ashburner,  1  Wils.  297  ;  Rex  v. 
Allgooil,  7  T.  R.  746,  Rex  v.  Sherilf  of  Chester,  1  Chitty,  479. 

^  Rex  V.  Lucas,  10  East,  235,  236,  per  Ld.  EUenborougli. 

'  Gresley  on  Evid.  116. 

2  Rex  V.  Merchant  Tailors'  Co.,  2  B.  &  Ad.  115  ;  State  of  Louisiana,  ex  rd.  Hatch 
V.  City  Bank  of  New  Orleans,  1  Rob.  La.  470  ;  People  v  Throop,  12  Wend.  183. 

^  Mayor  of  Southampton  v.  Graves,  8  T.  R.  590.  The  party,  in  such  case,  can  onlv 
give  notice  to  the  corporation  to  produce  its  books  and  papers,  as  in  other  cases  be- 
tween private  persons.  See,  accordingly,  Burrell  v.  Nicholson,  3  B  &  Ad.  649  ;  Bank 
of  Utica  V.  Hilliard,  5  Cowen,  419  ;  s.  c.  6  Cowen,  62;  Imperial  Gas  Co.  v.  Clarke,  7 
Bing.  95  ;  Rex  v.  Justices  of  Buckingham,  8  B.  &  C.  375. 

♦  Cox  V.  Copping,  5  Mod.  396 ;  Newell  v.  Simpkin,  6  Bing.  565  ;  Jacocks  v.  Gil- 
liam, 3  Murph.  47. 

5  Geery  V.  Hopkins,  2  Ld.  Riym.  851  ;  s.  c.  7  Mod.  129  ;  Shelling  v.  Farmer,  1  Str. 
646. 

^  Schinotti  v.  Bumstead,  1  Tidd's  Pr.  594. 

''  Brace  v.  Ormond,  1  Meriv.  409  ;  People  v.  Throop,  12  Wend.  183  ;  Union  Bank 
V.  Knapp,  3  Pick.  96  ;  Mortimer  r.  M'Callan,  6  M.  &  W. 

8  Rex  V.  Bishop  of  Ely,  8  B.  &  C.  112  ;  Finch  v.  Bishop  of  Ely,  2  M.  &  Ry.  127. 

^  Gresley  on  Evid.  116,  117. 

(a)  McKavlin  v.  Bresslin,  8  Gray,  177. 
VOL.   I.  —  40 


626  LAW   OF    EVIDENCE.  [PART    III 

able  rule,  that,  in  criminal  cases,  the  party  shall  never  be  obliged 
to  furnish  evidence  against  himself.  ^° 

§  475.  Books  of  public  officers.  Inspection  of  the  hooks  of  public 
officers  is  subject  to  the  same  restriction  as  in  the  case  of  corpora- 
tion books;  and  access  to  them  will  not  be  granted  in  favor  of 
persons  who  have  no  interest  in  the  books.  Thus,  an  inspection 
of  the  books  of  the  post-office  has  been  refused,  upon  the  applica- 
tion of  the  plaintiff,  in  a  qui  tarn  action  against  a  clerk  in  the 
post-office,  for  interfering  in  the  election  of  a  member  of  Parlia- 
ment, because  the  action  did  not  relate  to  any  transaction  in  the 
post-office,  for  which  alone  the  books  were  kept.^  Upon  the  same 
ground,  that  the  subject  of  the  action  was  collateral  to  the  sub- 
ject-matter and  design  of  the  books,  an  inspection  of  the  books  of 
the  custom-house  has  been  refused.  ^  Such  inspections  are  also 
sometimes  refused  on  grounds  of  public  policy,  the  disclosure 
sought  being  considered  detrimental  to  the  public  interest.  Upon 
the  same  principle  of  an  interest  in  the  books,  the  tenants  of  a 
manor  are  generally  entitled  to  an  inspection  of  the  court-rolls, 
wherever  their  own  rights  are  concerned;  but  this  privilege  is  not 
allowed  to  a  stranger.^ 

§  476.  No  right  of  inspection  if  against  public  interest.  But,  in 
all  cases  of  public  writings,  if  the  disclosure  of  their  contents 
would,  either  in  the  judgment  of  the  court  or  of  the  chief  execu- 
tive magistrate,  or  the  head  of  department,  in  whose  custody  or 
under  whose  control  they  may  be  kept,  be  injurious  to  the  •public 
interests,  an  inspection  will  not  be  granted.^ 

§  477.  How  to  obtain  inspection  when  action  is  pending.  The 
motion  for  a  rule  to  inspect  and  take  copies  of  books  and  writ- 
ings, ivhen  an  action  is  pending,  may  be  made  at  any  stage  of  the 
cause,  and  is  founded  on  an  affidavit,  stating  the  circumstances 
nnder  which  the  inspection  is  claimed,  and  that  an  application 
therefore  has  been  made  to  the  proper  quarter,  and  refused.  ^  (a) 

§  478.  When  no  action  is  pending.  But  when  no  action  is  pend- 
ing, the  proper  course  is  to  move  for  a  rule  to  show  cause  why  a 

10  Tidil's  Pr.  593.  Under  this  rule,  an  information,  in  the  nature  of  quo  warranto, 
is  considered  as  merely  a  civil  proceeding.  Rex  v.  Babb,  3  T.  R.  582.  See  also  Rex 
V.  Dr.  Purnell,  1  Wils.  239. 

1  Crew  V.  Blackburn,  cited  1  "Wils.  240  ;  Crew  v.  Saunders,  2  Str.  1005. 

2  Atherfold  v.  Beard,  2  T.  R.  610. 

3  Rex  V.  Shelley,  3  T.  R,  141  ;  Rex  v.  AUgood,  7  T.  R.  746.  See  Rex  v.  Hostmea 
of  Newcastle,  2  Stra.  1223,  n.  (1),  by  Nolan. 

*  Stipra,  §§  250,  251,  and  cases  there  cited. 
6  1  Tidd's  Pr.  595,  596. 

(«)  See  lasigi  v.  Brown,  1  Curtis  C.  C.401;  infra,  §  559. 


CHAP.    IV.]  PUBLIC    DOCUMENTS.  627 

mandamus  should  not  issue,  commanding  the  officer  having  cus- 
tody of  the  books  to  permit  the  ajjplicant  to  insjjcct  thcni,  and 
take  copies.  The  application  in  this  case  should  state  some 
specific  object  sought  by  the  insj)Cction,  and  be  suj)p()rted  by  an 
affidavit^  as  in  the  case  preceding.  If  a  rule  is  made  to  sliow 
cause  why  an  information,  in  the  nature  of  a  quo  warranto,  should 
not  be  filed,  a  rule  for  an  inspection  will  be  granted  to  the  prose- 
cutor, immediately  upon  the  granting  of  a  rule  to  show  cause. 
But  if  a  rule  be  made  to  show  cause  why  a  mandamus  should  not 
be  awarded,  the  rule  for  an  inspection  will  not  be  granted,  until 
the  mandaynus  has  been  issued  and  returned.^ 

§  479.  Mode  of  proof.  Acts  of  State.  We  proceed  now  to  con- 
sider the  MODE  OF  PROOF  of  publlc  documents,  beginning  with 
those  which  are  not  judicial.  And,  first,  of  acts  of  State.  It  has 
already  been  seen,  that  courts  will  judicially  take  notice  of  the 
political  constitution  or  frame  of  the  government  of  their  own 
country,  its  essential  political  agents,  or  officers,  and  its  essential 
ordinary  and  regular  operations.  The  great  seal  of  the  State  and 
the  seals  of  its  judicial  tribunals  require  no  proof.  ^  Courts  also 
recognize,  without  other  proof  than  inspection,  the  seals  of  State 
of  other  nations,  which  have  been  recognized  by  their  own  sov- 
ereign. The  seals,  also,  of  foreign  courts  of  admiralty,  and  of 
notaries-public,  are  recognized  in  the  like  manner. ^  Public  stat- 
utes, also,  need  no  proof,  being  supposed  to  exist  in  the  memo- 
ries of  all ;  but,  for  certainty  of  recollection,  reference  is  had 
either  to  a  copy  from  the  legislative  rolls,  or  to  the  book  printed 
by  public  authority.  ^  Acts  of  State  may  be  proved  by  production 
of  the  original  printed  document,  from  a  press  authorized  by  gov- 
ernment.^ Proclamations,  and  other  acts  and  orders  of  the  ex- 
ecutive, of  the  like  character,  may  be  proved  by  production  of  the 
government  gazette,  in  which  they  were  authorized  to  be  printed.^ 
Printed  copies  of  public  documents,  transmitted  to  Congress  by 

6  1  Tidd's  Pr.  596  ;  Rex  v.  Justices  of  Surrey,  Sayer,  144  ;  Rex  v.  Shelley,  3  T.  R. 
141  ;  Rex  v.  Hollister,  Cas.  temp.  Hardw.  245. 

1  Woniack  v.  Uearman,  7  Port.  513. 

2  Supra,  §§  4-6;  Story  on  Confl.  of  Laws,  §  643  ;  Robinson  v.  Oilman,  7  Shepl. 
299  ;  Coit  v.  Millikin,  1  Denio,  376.  A  piotest  of  a  bill  of  exchange,  in  a  foreign 
country,  is  sufficiently  proved  by  the  seal  of  the  foreign  notary.  Willes,  550  ;  Anon., 
12  Mod.  345  ;  Bayley  on  Bills,  515  (Phillips  &  Sewall's  ed.)  ;  Story  on  Bills,  §§  276, 
277;  La  Caygas  v.  Larionda,  4  Mart.  283. 

3  Bull.  N.  P.  225. 

*  Rex  V.  Withers,  cited  5  T.  R.  442;  Watkins  v.  Holman,  16  Peters,  25. 

5  Rex  V.  Holt,  5  T.  R.  436  ;  Van  Omeron  v,  Dowick,  2  Campb.  42  ;  Bull.  N.  P. 
226  ;  Attorney-General  v.  Theakstone,  S  Price,  89.  An  appointment  to  a  commission 
in  the  army  cannot  be  proved  by  the  gazette.  Rex  f.  Gardner,  2  Campb.  513;  Kirwan 
V.  Cockburn,  5  Esp.  233.     See  also  Rex  v.  Forsyth,  R.  &  liy.  274,  275. 


628 


LAW   OF    EVIDENCE. 


[part  III. 


the  President  of  the  United  States,  and  printed  hy  the  printer  to 
Congress,  are  evidence  of  those  documents.^  (a)  And  here  it  may 
be  proper  to  observe,  that,  in  all  cases  of  proof  by  a  copy,  if  the 
copy  has  been  taken  by  a  machine,  worked  by  the  witness  who 
produces  it,  it  is  sufficient.'  The  certificate  of  the  Secretary  of 
State  is  evidence  that  a  particular  person  has  been  recognized  as 
a  foreign  minister.^  And  the  certificate  of  a  foreign  governor, 
duly  authenticated,  is  evidence  of  his  own  official  acts. ^(6) 

§  480.  Legislative  acts.  Next,  as  to  legislative  acts,  which  con- 
sist of  statutes,  resolutions,  and  orders,  passed  by  the  legislative 
body.  In  regard  to  private  statutes,  resolutions,  &c.,  the  only 
mode  of  proof,  known  to  the  common  law,  is  either  by  means  of 
a  copy,  proved  on  oath  to  have  been  examined  by  the  roll  itself; 
or,  by  an  exemplification  under  the  great  seal.  But  in  most  if 
not  all  of  the  United  States,  the  printed  copies  of  the  laws  and 
resolves  of  the  legislature,  published  by  its  authority,  are  com- 
petent evidence  either  by  statute  or  judicial  decision ;  and  it  is 
sufficient  prima  facie,  that  the  book  purports  to  have  been  so 
printed.  1  {c)     It  is  the  invariable  course  of  the  legislatures  of  the 

6  RadclifF?;.  United  Ins.  Co.,  7  Johns.  38,  per  Kent,  C.  J. 

1  Simpson  v.  Thoreton,  2  M.  &  Rob.  433. 

8  United  States  v.  Benner,  1  Baldw.  238. 

9  United  States  v.  Mitchell,  3  Wash.  95. 

1  Young  V.  Bank  of  Alexandria,  4  Cranch,  388;  Biddis  v.  James,  6  Binn.  321,  326; 
Rex  V.  Forsyth,  Russ.  &  Ry.  275.     See  infra,  §  489. 


(a)  Whiton  v.  Albany  &  Narr.  Ins. 
Companies,  109  Mass.  24  ;  Gregg  v.  For- 
syth, 24  How.  (U.S.)  179.  The  American 
State  Papers,  published  by  order  of  Con- 
gress, are  admissible  as  evidence  ;  and  the 
copies  of  documents  contained  are  evidence, 
like  the  originals.  Doe  v.  Roe,  13  Fla. 
602  ;  Nixon  v.  Porter,  34  Miss.  697  ;  Du- 
tillett  V.  Blanchard,  14  La.  An.  97  ;  Bryan 
V.  Forsyth,  19  How.  (U.  S.)  334.  A  proc- 
lamation of  the  governor  of  a  State,  de- 
claring who  is  elected  to  Congress,  is 
prima  facie  evidence  of  the  facts  therein 
stated.  Lurton  v.  Gilliam,  2  111.  577  ; 
ante,  §  6. 

(b)  "  The  archives  of  the  late  so-called 
Confederate  Government "  must  be  proved 
by  the  originals.  Schabeu  v.  United 
States,  6  Ct.  of  CI.  230. 

(c)  Printed  copies  of  a  volume  printed 
by  order  of  the  Senate  of  the  United  States, 
containing  letters  to  and  from  various  offi- 
cers of  state,  were  held  to  be  good  evidence 
of  the  contents  of  the  originals.  Whiton 
V.  Albany,  &c.  Ins.  Co.,  109  Mass.  30. 
But  this  is  different  from  holding  them,  or 
the  originals,  evidence  of  facts  outside. 
Thus,  in  Cushing  v.   Nant^sket   Beach  R. 


R.  Co.,  143  Mass.  78,  it  was  held  that  a 
printed  document  entitled,  "  48th  Con- 
gress, 1st  session.  Senate  Ex.  Doc.  No. 
74,"  containing  a  report  of  civil  engineers 
employed  by  the  government  to  make  sur- 
veys, and  stating  facts  about  the  surveys 
made,  was  inadmissible  as  evidence  of  the 
facts  which  might  better  be  proved  by  the 
sworn  testimony  of  engineers.  As  to 
the  effect  to  be  given  to  the  volume  termed 
the  "  Revised  Statutes  of  Connecticut," 
see  Eld  r.  Gorham,  20  Conn.  8.  In  Mas- 
sachusetts, it  is  provided  by  statute  that 
"  all  acts  of  incorporation  shall  be  deemed 
public  acts,  and,  as  such,  may  be  declared 
on  and  given  in  evidence,  without  spe- 
cially pleading  the  same."  Pub.  St.  c.  169, 
§  68.  And  it  is  further  provided,  in  the 
same  State,  that  cojaes  of  books,  papers, 
documents,  and  records  in  the  executive 
and  other  departments  of  the  Common- 
wealth, duly  authenticated  by  the  attesta- 
tion of  the  officer  having  charge  of  the 
same,  shall  be  competent  evidence  in  all 
cases  equally  with  the  originals  thereof  if 
tlie  genuineness  of  the  signature  of  such 
officer  is  attested  by  the  secretary  of  the 
Commonwealth    under    its    seal.      Mass. 


CHAP. 


IV.] 


PUBLIC   DOCUMENTS. 


629 


several  States,  as  well  as  of  the  United  States,  to  nave  the  laws 
and  resolutions  of  each  session  printed  by  authority,  (b)  Con- 
fidential persons  are  selected  to  compare  the  copies  with  the  origi- 
nal rolls,  and  superintend  the  printing.  The  very  object  of  this 
provision  is  to  furnish  the  people  with  authentic  copies;  and,  from 
their  nature,  printed  copies  of  this  kind,  either  of  public  or  private 
laws,  are  as  much  to  be  depended  on  as  the  exemplilication,  veri- 
fied by  an  officer  who  is  a  keeper  of  the  record.'^  (c) 

§  481.  Same  subject.  If  in  Si  private  statute  a  clause  is  inserted, 
that  it  shall  be  taken  notice  of,  as  if  it  were  a  public  act;  this  not 
only  dispenses  with  the  necessity  of  pleading  it  specially,  but  also 
changes  the  mode  of  proof,  by  dispensing  with  the  production  of 
an  exemplified  or  sworn  copy.^ 

§  482.  Legislative  journals.  In  regard  to  the  Journals  of  either 
branch  of  the  legislature,  a  former  remark  ^  may  be  here  repeated, 

2  Per  Tilghman,  C.  J.,  6  Binn.  326.  See  also  Watkins  v.  Holnian,  16  Peters,  25  ; 
Holt,  C.  J.,  held,  that  au  act,  printed  by  the  king's  jiriuters,  was  always  good  evidence 
to  a  jury  ;  though  it  was  not  sufficient  upon  au  issue  of  nul  tiel  record.  Anon.,  2  Salk. 
566. 

3  Beaumont  v.  Mountain,  10  Bing.  ■104.  The  contrary  seems  to  have  been  held  in 
Brett  V.  Beales,  1  M.  &  Malk.  421  ;  but  that  case  was  overruled,  as  to  this  point,  in 
Woodward  v.  Cotton,  1  C.  M.  &  R.  44,  47. 

1  Supra,  §  91. 


Pub.  St.  c.  169,  §  70.  Under  this  stat- 
ute, it  is  held  that  a  document  which  is 
not  authenticated  by  attestation  of  the 
officer  having  charge  of  the  same,  and 
which  is  not  a  copy  but  an  original,  but 
which  has  appended  to  it  a  certiKcate  of 
the  secretary  of  the  Commonwealth  that 
the  signatures  are  genuine,  is  not  suffi- 
ciently proved.  There  should  be  testimony 
as  to  the  genuineness  of  the  signatures. 
Com.  V.  Richardson,  142  Mass.  71. 

(b)  The  edition  of  the  Laws  and  Treaties 
of  the  United  States,  published  by  Little 
&  Brown,  is  declared  to  be  competent  evi- 
dence of  the  several  public  and  private 
acts  of  Congress,  and  of  the  several  treaties 
therein  contained,  in  all  the  courts  of  law 
and  equit}'^  and  of  maritime  jurisdiction, 
and  in  all  the  tribunals  and  public  offices 
of  the  United  States,  and  of  the  several 
States,  without  any  further  proof  or  au- 
thentication thereof.  Stat.  1846,  c.  100, 
§  2  ;  9  Stats,  at  Large,  p.  76. 

(c)  The  laws  revised  and  adopted  by 
the  territorial  legislature  of  Michigan,  in 
1827,  were  the  statutes  as  previoush/ 
printed.  It  was  held,  that  the  printed 
book  containing  the  .statute  is  the  best 
evidence  of  what  the  .statute  actually  was, 
and  that  the  original  record  is  not  to  be 
received  to  show  that  the  jirinted  book  is 
incorrect,  or  as  evidence  of  the  statute,  as 


adopted  and  enacted  at  that  time.  Espe- 
cially will  this  be  so  where  the  error  is  not 
discovered  for  a  long  time,  and  the  statute 
is  tieated  and  considered  as  the  actual  law. 
Pease  v.  Peck,  18  How.  (U.  S.)  595.  It 
is  a  nuich-mooted  question,  whether  the 
courts  will  go  behind  the  certificate  of  en- 
actment of  a  statute,  to  inquire  whether  it 
was  duly  enacted.  That  they  will  not,  see 
Sjieer  v.  Plank  Road  Co.,  22  Pa.  St.  376  ; 
People  V.  Devlin,  33  N.  Y.  269  ;  Auditor 
V.  Browne,  30  Ind.  514,  overruling  Cole- 
man V.  Dobbins,  8  Ind.  156  ;  Fouke  v. 
Fleming,  13  Md.  392  ;  Eld  v.  Gorham,  20 
Conn.  8  ;  Mayor  of  Annajwlis  v.  Harwood, 
32  Md.  471  ;  Louisiana  State  Lottery  v. 
Richeux,  23  La.  An.  743  ;  Duncombe  v. 
Prindle,  12  Iowa,  1  ;  Pangborn  v.  Young, 
32  N.  J.  L.  29  ;  Pacific  R.  R.  Co.  v.  Gov- 
ernor, 23  Mo.  353  ;  Green  v.  Weller,  32 
Miss.  650.  That  they  will,  see  People  v. 
Mahaney,  13  Mich.  492  ;  People  v.  Starne, 
35  111.  121  ;  Gardner  v.  The  Collector,  6 
Wall.  (U.  S.)  499;  Osburn  v.  Stalev,  5 
W.  Va.  85  ;  Op.  of  Judges,  52  N.  H.  622. 
Further,  it  is  held,  that  a  printed  volume 
purporting  to  be  printed  by  authority,  and 
containing  the  laws  of  the  State,  is  admis- 
sible in  evidence  to  prove  the  laws  in 
another  State.  Tenant  v.  Tenant,  110  Pa. 
St.  484. 


630  LAW    OF   EVIDENCE.  [PART   III. 

equally  applicable  to  all  other  public  records  and  documents; 
namely,  that  they  constitute  an  exception  to  the  general  rule, 
which  requires  the  production  of  the  best  evidence,  and  may  be 
proved  by  examined  copies.  This  exception  is  allowed,  because 
of  their  nature,  as  original  public  documents,  which  are  not  re- 
movable at  the  call  of  individuals,  and  because,  being  interesting 
to  many  persons,  they  might  be  necessary,  as  evidence,  in  differ- 
ent places  at  the  same  time.^  Moreover,  these  being  public 
records,  they  would  be  recognized  as  such  by  the  court,  upon  be- 
ing produced,  without  collateral  evidence  of  their  identity  or 
genuineness ;  and  it  is  a  general  rule,  that,  whenever  the  thing 
to  be  proved  would  require  no  collateral  proof  upon  its  produc- 
tion, it  is  provable  by  a  copy.^  These  journals  may  also  be  proved 
by  the  copies  printed  by  the  government  printer,  by  authority  of 
the  House.* 

§  483.  Official  registers.  The  next  class  of  public  writings  to 
be  considered  consists  of  official  registers,  or  books  kept  by  per- 
sons in  public  office,  in  which  they  are  required,  whether  by 
statute  or  by  the  nature  of  their  office,  to  write  down  particular 
transactions,  occurring  in  the  course  of  their  public  duties,  and 
under  their  personal  observation.  These  documents,  as  well  as 
all  others  of  a  public  nature,  are  generally  admissible  in  evidence, 
notwithstanding  their  authenticity  is  not  confirmed  by  those  usual 
and  ordinary  tests  of  truth,  the  obligation  of  an  oath,  and  the 
power  of  cross-examining  the  persons,  on  whose  authority  the 
truth  of  the  documents  depends.  The  extraordinary  degree  of 
confidence,  it  has  been  remarked,  which  is  reposed  in  such  docu- 
ments, is  founded  principally  upon  the  circumstance,  that  they 
have  been  made  by  authorized  and  accredited  agents  appointed 
for  the  purpose ;  but  partly  also  on  the  publicity  of  their  subject- 
matter.  AVhere  the  particular  facts  are  inquired  into  and  re- 
corded for  the  benefit  of  the  public,  those  who  are  empowered  to 
act  in  making  such  investigations  and  memorials  are  in  fact  the 
agents  of  all  the  individuals  who  compose  the  State ;  and  ever}^ 
member  of  the  community  may  be  supposed  to  be  privy  to  the 
investigation.  On  the  ground,  therefore,  of  the  credit  due  to 
agents  so  empowered,  and  of  the  public  nature  of  the  facts  them- 
selves, such  documents  are  entitled  to  an  extraordinary  degree 

2  Lord  Melville's  Case,  29  Howell's  St.  Tr.  683-685  :  Rex  v.  Lord  George  Gordon, 
2  Doug.  593,  and  n.  (3)  ;  Jones  v.  Randall,  Lofft,  383,  428  ;  s.  c.  Cowp.  17. 

3  Rex  V.  Smith,  1  Stra.  126. 

<  Root  V.  King,  7  Cowen,  613,  636  ;  "Watkins  v.  Holman,  16  Peters,  25.  And  see 
also  post,  §  484. 


CHAP.    IV.]  PUBLIC    DOCUiMENTS.  631 

of  confidence ;  and  it  is  not  necessary  that  they  should  be  con- 
firmed and  sanctioned  by  the  ordinary  tests  of  truth.  Besides 
this,  it  would  always  be  difficult,  and  often  impossible,  to  prove 
facts  of  a  public  nature,  by  means  of  actual  witnesses  upon  oath.^ 
§484.  Same  subject.  These  books,  therefore,  are  recognized 
by  law,  because  they  are  required  by  law  to  be  kept,  because  the 
entries  in  them  are  of  public  interest  and  notoriety,  and  because 
they  are  made  under  the  sanction  of  an  oath  of  office,  or  at  least 
under  that  of  official  duty.  They  belong  to  a  particular  custody, 
from  which  they  are  not  usually  taken  but  by  special  authority, 
granted  only  in  cases  where  inspection  of  the  book  itself  is  neces- 
sary, for  the  purpose  of  identifying  the  book,  or  the  handwriting, 
or  of  determining  some  question  arising  upon  the  original  entry, 
or  of  correcting  an  error  which  has  been  duly  ascertained.  Books 
of  this  public  nature,  being  themselves  evidence,  when  produced, 
their  contents  may  be  proved  by  an  immediate  copy  duly  veri- 
fied.^ Of  this  description  are  parish  registers  ;2  the  books  of  the 
Bank  of  England,  which  contain  the  transfers  of  public  stock  ;3 
the  transfer  books  of  the  East  India  Company  ;^  the  rolls  of  courts 
baron  ;^  the  books  which  contain  the  official  proceedings  of  cor- 
porations, and  matters  respecting  their  property,  if  the  public  at 
large  is  concerned  with  it;^(a)  books  of  assessment  of  public 
rates  and  taxes;''  vestry  books ;^  bishops'  registers,  and  chapter- 
house registers;^  terriers;^''  the  books  of  the  post-office,  and 
custom-house,  and  registers  of  other  public  offices ;  ^^  prison  reg- 

5  1  Stark.  Evid.  195  ;  supra,  §  128. 

1  Lynch  v.  Gierke,  3  Salk.  154,  per  Holt,  C.  J.  :  2  Doug.  593,  594,  n.  (3).  The 
handwriting  of  the  recording  or  attesting  officer  is,  prima  facie,  presumed  genuine. 
Bryan  v.  Wear,  4  Mo.  106. 

2  2  Phil.  Evid.  183-186  ;  Lewis  v.  Marshall,  5  Peters,  472,  475 ;  1  Stark.  Evid. 
205.     See  Childress  v.  Cutter,  16  Mo.  24. 

3  Breton  v.  Cope,  Peake's  Cas.  30  ;  Marsh  v.  Collnett,  2  Esp.  665  ;  Mortimer  v. 
M'Callan,  6  M.  &  W.  58. 

♦  2  Doug.  593,  n.  (3). 

6  Bull.  iV.  P.  247  ;  Doe  v.  Askew,  10  East,  520. 

6  Warrinerw.  Giles,  2  Stra.  954  ;  Id.  1223,  n.  (1)  ;  Marriage  v.  Lawrence,  3  B.  & 
Aid.  144,  per  Abbott,  C.  J.  ;  Gibbon's  Case,  17  Howell's  St.  Tr.  810  ;  Moore's  Case, 
Id.  854  ;  Owings  v.  Speed,  5  Wheat.  420. 

■'  Doe  V.  Seaton,  2  Ad.  &  El.  171,  178,  per  Patteson,  J. ;  Doe  v.  Arkwright,  Id.  182, 
n.,  per  Denman,  C.  J.  ;  Rex  v.  King,  2  T.  R.  234  ;  Ronkendorff  v.  Taylor,  4  Peters, 
349,  360  ;  Doe  v.  Cartwright,  Ry.  &  M.  62. 

8  Kex  V.  Martin,  2  Campb.  100.  See,  as  to  church  records,  Sawyer  v.  Baldwin,  11 
Pick.  494. 

9  Arnold  v.  Bishop  of  Bath  and  Wells,  5  Bing.  316  ;  Coombs  v.  Coether,  1  M.  & 
Malk.  398. 

1"  Bull.  N.  P.  248  ;  1  Stark.  Evid.  201.     See  infra,  §  496. 

11  Bull.  N.   P.  249  ;  Rex  v.  Fitzgerald,  1  Leach,  Cr.  Cas.  24  ;  Rex  v.  Rhodes,  Id. 

(a)  Loving  v.  Warren  County,  14  Ins.  Co..  45  Iowa,  93;  Fraser  v.  Charlea- 
Bush  (Ky.),  316 ;  Butler  v.  St.  Louis  Life     ton,  8  S.  C.  318. 


(532  LAW    OP    EVIDENCE.  [PART    III. 

istcrs;^^  enrolment  of  deeds ;  ^^  (Z»)  the  registers  of  births  and  of 
marriages,  made  pursuant  to  the  statutes  of  any  of  the  United 
States ;  ^*  (c)  the  registration  of  vessels  in  the  custom-house ;  ^^ 
and  the  books  of  record  of  the  transactions  of  towns,  city  coun- 
cils, and  other  municipal  bodies.  ^'^  (t?)  In  short,  the  rule  maybe 
considered  as  settled,  that  every  document  of  a  public  nature, 
which  there  would  be  an  inconvenience  in  removing,  and  which 
the  party  has  a  right  to  inspect,  may  be  proved  by  a  duly  authen- 
ticated copy.  1'  (e) 

29  ;  D'Israeli  v.  Jowett,  1  Esp.  427  ;  Barber  v.  Holmes,  3  Esp.  190  ;  Wallace  v.  Cook, 
5  Esp.  117  ;  Johnson  v.  Ward,  6  Esp.  48  ;  Tompkins  v.  Attorney-General,  1  Dow,  404  ; 
Kex  V.  Grimwood,  1  Price,  369  ;  Henry  v.  Leigh,  3  Campb.  499  ;  United  States  v. 
Johns.  4  Dall.  412,  415. 

1-  Salte  V.  Thomas,  3  B.  &  P.  188  ;  Rex  v.  Aikles,  1  Leach,  Cr.  Cas.  435. 

13  Bull.  N.  P.  229  ;  Kinuersley  v.  Orpe,  1  Doug.  56  ;  Hastings  v.  Blue  Hill  Tump. 
Corp.,  9  Pick.  80. 

1*  Milford  (;.  Worcester,  7  Mass.  48  ;  Com.  v.  Littlejohn,  15  Mass.  163;  Sumner  v. 
Sebec,  3  Greenl.  223  ;  Wedgevvood's  Case,  8  Green).  75  ;  Jacocks  i;.  Gilliam,  3  Murphy, 
47  ;  Martin  v.  Gunby,  2  H.  &  J.  248  ;  Jackson  v.  Boneham,  15  Johns.  226  ;  Jackson 
V.  King,  5  Covven,  237  ;  Richmond  v.  Patterson,  3  Ohio,  368. 

1^  United  States  v.  Johns,  4  Dall.  415;  Colson  v.  Bonzey,  6  Greenl.  474  ;  Hacker 
V.  Young,  6  N.  H.  95  ;  Coolidge  v.  N.  York  Firemen's  Ins.  Co.,  14  Johns.  308  ;  Cat- 
lett  V.  Pacific  Ins.  Co.,  1  Wend.  561. 

16  Saxton  V.  Nimms,  14  Mass.  320,  321  ;  Thayer  v.  Stearns,  1  Pick.  109  ;  Taylor 
V.  Henry,  2  Pick.  401  ;  Denning  v.  Roome,  6  Wend.  651  ;  Dudley  v.  Grayson,  6  Mon- 
roe, 259  ;  Bishop  v.  Cone,  3  N.  H.  513. 

1^  Gresley  on  Evid.  115.  Ante,  §  482.  In  some  of  the  United  States,  office-copies 
are  made  admissible  by  statute.     In  Georgia,    the  courts  are  exjiressly  empowered  to 

(b)  And  such  copies  are  prima  facie  Crosby,  6  Allen,  327)  —  just  as  it  is  of  a 
evidence  of  the  fact  that  the  deed  was  mortgage  of  real  estate,  except  when  the 
signed,  sealed,  and  delivered  by  the  au-  ])erson  offering  it  is  the  grantee  or  is  other- 
thority  of  the  grantor,  that  it  was  duly  wise  presumed  to  have  the  original  in  his 
acknowledged,  and  that  the  grantor  was  possession  ;  Eaton  v.  Camiibell,  7  Pick. 
seised  of  the  land  described  in  the  deed.  10.  Registers  of  births  and  marriages, 
Chamberlain  v.  Bradley,  101  Mass.  188  ;  made  pursuant  to  the  statutes  of  any  of 
Ward  V.  Fuller,  15  Pick.  (Mass.).  185.  the  United  States,  are  competent  evidence 

(c)  Cf.  Queen's  Proctor  v.  Fry.  L.  R.  because  of  their  being  made  by  public  au- 
4  Prob.  Div.  230.  In  Shutesbury  v.  thority  and  under  tlie  sanction  of  official 
Hadley,  133  Mass.  242,  it  was  held  that  duty,  and  therefore  they,  and  exemplified 
an  attested  copy  of  the  town  record  of  a  copies  of  them,  are  received  in  evidence  ; 
marriage,  which  record  is  kept  by  law,  and  but  if  the  registry  in  question  was  not 
gives  the  residence  of  the  parties,  is  evi-  made  by  any  authority  or  sanction  of  law, 
(ience  of  such  residence  ;  and  the  court  it  is  not  admissible  in  evidence.  Tucker 
says  that  in  Massachusetts  the  rule  that  v.  People,  117  111.  91. 

when  a  book  of  record  is  itself  evidence,  (d)  The  clerk  of  a  city  or  town  is  the 
a  certified  copy  has  the  .same  effect,  is  proper  certifying  officer  to  authenticate 
applied  to  all  cases  of  record  required  by  copies  of  the  votes,  ordinances,  and  by- 
law to  be  kept  by  a  public  officer.  Thus  laws  thereof  ;  and  such  copies  are  admis- 
it  has  been  held  that  a  certified  copy  of  a  sible  as  prima  facie  evidence,  when  pur- 
by-law  of  a  town,  signed  by  the  town  porting  to  be  duly  attested,  without  any 
clerk,  is  proof  of  the  by-law  without  any  verification  of  the  cleik's  signature.  Com. 
special  identification  of  the  signature  of  v.  Chase,  6  Cush.  248.  See  also  People 
the  clerk.  Com.  v.  Chase,  6  Cush.  248.  v.  Minck,  7  Smith  (N.  Y.),  539. 
So,  a  copy  of  a  mortgage  or  personal  pro-  (e)  Cf.  Pittsfield,  &c.  R.  R.  Co.  v. 
perty  certified  by  the  recording  officer,  is  Harrison,  16  111.  81  :  Raymond  v.  Long- 
evidence    of   the    mortgage    (Barnard    v.  worth,  4  McLean,  481. 


CHAP.    IV.]  PUBLIC   DOCUMENTS.  633 

§  485.  Requisites  of  official  character.  It  is  deemed  essential  to 
the  official  character  of  these  books,  that  the  entries  in  tliem  be 
made  promptly,  or  at  least  without  such  long  delay  as  to  impair 
their  credibility,  and  that  they  be  made  by  the  person  whose  duty  it 
was  to  make  them,  and  in  the  mode  required  by  law,  if  any  has 
been  prescribed.^  When  the  books  themselves  are  produced  they 
are  received  as  evidence,  without  further  attestation.  But  they 
must  be  accompanied  by  proof  that  they  come  from  the  proper 
repository.'^  Where  the  proof  is  by  a  copy,  an  examined  copy, 
duly  made  and  sworn  to  by  any  competent  witness,  is  always 
admissible.  Whether  a  copy  certified  by  the  officer  having  legal 
custody  of  the  book  or  document,  he  not  being  specially  appointed 
by  law  to  furnish  copies,  is  admissible,  has  been  doubted;  but 
though  there  are  decisions  against  the  admissibility,  yet  the 
weight  of  authority  seems  to  have  established  the  rule,  that  a 
copy  given  by  a  public  officer,  whose  duty  it  is  to  keep  the  origi- 
nal, ought  to  be  received  in  evidence.^ (a) 

require  the  production  of  the  originals,  in  their  discretion.  Hotchk.  Dig.  p.  590.  In 
South  Carolina,  it  has  been  enacted,  that  no  foreign  testimonial,  probate,  certificate, 
&c.,  under  the  seal  of  any  court,  notary,  or  magistrate,  shall  be  received  in  evidence, 
unless  it  shall  appear  that  the  like  evidence  from  this  State  is  receivable  in  the  courts 
of  the  foreign  State.     Statutes  at  Large,  vol.  v.  p.  45. 

1  Doe  i>."  Bray,  8  B.  &  C.  813  ;  Walker  v.  Wingfield,  18  Ves.  443.  A  certificate 
that  a  certain  fact  appears  of  record  is  not  sufficient.  The  officer  must  certify  a  trans- 
cript of  the  entire  record  relating  to  the  matter.  Owen  v.  Boyle,  3  Shepl.  147.  And 
this  is  sufficient.     Farr  v.  Swan,  2  Barr,  245. 

2  1  Stark.  Evid.  202  ;  Atkins  v.  Hatton,  2  Anstr.  387  ;  Armstrong  v.  Hewitt, 
4  Price,  216  ;  Pulley  v.  Hilton,  12  Price,  625  ;  Swinnerton  v.  Ma^iuis  of  Stafford, 
3  Taunt.  91  ;  Baillie  v.  Jackson,  17  Eng.  L.  &  Eq.  131,  10  Sim.  167.  See  supra,  §  142, 
as  to  the  nature  of  the  repository  required. 

3  United  States  v.  Percheman,  7  Peters,  51,  85  (A.  D.  1833),  per  totam  Curiam; 
Oakes  •«.  Hill,  14  Pick.  442,  448;  Abbott  on  Shipping,  p.  63,  n.  1  (Story's  ed.)  ; 
United  States  v.  Johns,  4  Dall.  412,  415  ;  Judice  v.  Chre'tien,  3  Rob.  (La.)  15  ;  Wells 
V.  Compton,  Id.  171.  In  accordance  with  the  principle  of  this  rule  is  the  statute  of 
the  United  States  of  March  27,  1804  (3  LL.  U.  S.  621,  c.  409  [56],  Bioren's  ed.) 
[2  U.  S.  Stats,  at  Large  (L.  «fe  B.'s  edition),  208],  by  which  it  is  enacted,  that  "all 
records  and  exemplifications  of  ofiice-books,  wliich  are  or  may  be  kept  in  any  public 
office  of  any  State,  not  appertaining  to  a  court,  shall  be  proved  or  admitted  in  any 
other  court  or  office  in  any  other  State,  by  the  attestation  of  the  kee{)er  of  the  said 
records  or  books,  and  the  seal  of  his  office  thereunto  annexed,  if  there  be  a  seal,   to- 

(a)  Doe  V.  Roe,  13  Fla.  602  ;  Warner  original.  Cf.  Reg.  v.  Weaver,  L.  R.  2 
V.  Hardy,  6  Md.  525.  In  England,  by  14  Cr.  Cas.  R.  85.  Ancient  records  of  the 
&  15  Vict.  c.  99,  §  14,  whenever  any  book  meetings  of  the  proprietors  of  a  town, 
or  other  document  is  of  such  a  public  authenticated  with  the  seal  of  the  town- 
nature  as  to  be  admissible  in  evidence  in  ship  and  testified  to  by  several  witnesses 
its  mere  production  from  the  proper  cus-  as  being  the  records  of  the  town,  and 
tody,  and  no  statute  exists  which  render.s  which  are  produced  by  a  custodian  who 
its  contents  provable  by  means  of  a  copy,  has  had  possession  of  them  as  town  records 
any  copy  thereof  or  extract  therefrom  shall  for  a  long  period,  are  admissible,  there 
be  admissible  in  evidence  if  it  is  proved  being  no  evidence  raising  any  presumption 
to  be  an  examined  copy,  or  if  it  purports  against  their  genuineness.  Sanger  r, 
to  be  signed  and  certified  as  a  true  copy  Merritt,  120  N.  Y.  114  ;  Goodwin  i;.  Jack, 
by  the  officer  who  has  the  custody  of  the  62  Me.  416. 


034  LAW    OF    EVIDKNCE.  fPART    III. 

§  486.  Foreign  laws.  In  regard  to  foreign  laws,  the  established 
doctrine  now  is,  that  no  court  takes  judicial  notice  of  the  laws  of 
a  foreign  country,  but  they  must  be  proved  as  facts.  And  the 
better  opinion  seems  to  be,  that  this  proof  must  be  made  to  the 
court,  rather  than  to  the  jury.  "For,"  observes  Mr.  Justice 
Story,  "all  matters  of  law  are  properly  referable  to  the  court, 
and  the  object  of  the  proof  of  foreign  laws  is  to  enable  the  court 
to  instruct  the  jury  what,  in  point  of  law,  is  the  result  of  the 
foreign  law  to  be  applied  to  the  matters  in  controversy  before 
them.  The  court  are,  therefore,  to  decide  what  is  the  proper 
evidence  of  the  laws  of  a  foreign  country ;  and  when  evidence  is 
given  of  those  laws,  the  court  are  to  judge  of  their  applicability, 
when  proved,  to  the  case  in  hand. "  ^  (a) 

§  487.  Same  subject.  "  Generally  speaking,  authenticated 
copies  of  the  written  laws,  or  of  other  public  instruments  of  a 
foreign  government,  are  expected  to  be  produced.  For  it  is  not 
to  be  presumed,  that  any  civilized  nation  will  refuse  to  give  such 
copies,  duly  authenticated,  which  are  usual  and  necessary,  for  the 
purpose  of  administering  justice  in  other  countries.     It  cannot  be 

gether  with  a  certificate  of  the  presiding  justice  of  the  court  of  the  county  or  district, 
as  the  case  may  be,  in  which  such  office  is  or  may  be  kept  ;  or  of  the  Governor,  the 
Secretary  of  State,  the  Chancellor,  or  the  Kee])er  of  the  Great  Seal  of  the  State,  that 
the  said  attestation  is  in  due  form,  and  by  the  proper  officer  ;  and  the  said  certificate, 
if  given  by  the  presiding  justice  of  a  court,  shall  be  further  autlienticated  by  the  clerk 
or  prothonotary  of  the  said  court,  who  shall  certify,  under  his  hand  and  the  seal  of  his 
office,  that  the  said  presiding  justice  is  duly  commissioned  and  (jualified  ;  or  if  the  said 
certificate  be  given  by  the  Governor,  the  Secretary  of  State,  the  Chancellor,  or  Keeper 
of  tlie  Great  Seal,  it  shall  be  under  the  great  seal  of  the  State  in  which  the  said  certifi- 
cate is  made.  And  the  said  records  and  exemplifications,  authenticated  as  aforesaid, 
shall  have  such  faith  and  credit  given  to  them  in  every  court  and  office  within  the 
United  States,  as  they  have  by  law  or  usage  in  the  coui'ts  or  offices  of  the  State  from 
whence  the  same  are  or  shall  be  taken.  By  another  section  this  provision  is  extended 
to  the  records  and  public  books,  &c.,  of  all  the  Territoiies  of  the  United  States.  The 
earlier  American  authorities,  opposed  to  the  rule  in  the  text,  are  in  accordance  with 
the  English  rule.  2  Phil.  Evid.  130-134.  Where  the  law  does  not  require  or  author- 
ize an  instrument  or  matter  to  be  recorded,  a  copy  of  the  record  of  it  is  not  admissible 
in  evidence.  Fitler  v.  Shotwell,  7  Watts  &  Serg.  14  ;  Brown  v.  Hicks,  1  Pike,  232  ; 
Haile  v.  Palmer,  5  Mo.  403. 

1  Story  on  Confl.  of  Laws,  §  638,  and  cases  there  cited. 

(a)  It  is  said  in  Kline  v.  Baker,  99  evidence  admitted  consists  entirely  of  a 
Mass.  254,  that  when  the  evidence  con-  written  document,  statute,  or  judicial  ojiin- 
sists  of  the  parol  testimony  of  experts  as  ion,  the  question  of  its  construction  and 
to  the  existence  or  prevailing  construction  effect  is  for  the  court  alone.  Gibson  v. 
of  a  statute,  or  as  to  any  point  of  imwrit-  Manuf.  Ins.  Co.,  144  Mass.  83.  Cf.  Pick- 
ten  law,  the  jury  must  determine  what  the  ard  v.  Bailey,  6  Fost.  (N.  H.)  152  ;  Story, 
foreign  law  is,  as  in  tlie  case  of  any  con-  Confl.  of  Laws.  (Redf.  ed. )  §  688  a. 
troverted  fact  depending  on  like  testimony.  Wilde,  J.,  in  Holman  v.  King,  7  Mete. 
Seea?)«e,  §  49.  But  the  qualifications  of  (Mass.)  384,  388;  McCormick  v.  Garnett, 
the  experts  or  other  questions  of  the  com-  5  De  G.  M.  &  G.  278  ;  Insurance  Co.  v. 
petency  of  witnesses  or  evidence  must  be  Wright,  60  Vt.  522  ;  Kennard  v.  Eeu* 
passed  upon  by  the  court,  and  when  the  nard,  63  N.  H.  3C8. 


CHAP.    IV.]  PUBLIC   DOCUMENTS.  635 

presumed,  that  an  application  to  a  foreign  government  to  authen- 
ticate its  own  edict  or  law  will  be  refused ;  but  the  fact  of  such 
a  refusal  must,  if  relied  on,  be  proved.  But  if  such  refusal  is 
proved,  then  inferior  proofs  may  be  admissible.^  (a)     Where  our 

1  Church  V.  Hublwrt,  2  Cranch,  237,  238.  It  is  now  settled  in  England,  upon  great 
consideration,  that  a  foreign  written  law  may  be  proved  by  parol  evidence  of  a  witness 
learned  in  the  law  of  that  country  ;  without  first  attempting  to  obtain  a  copy  of  the 
law  itself.  Baron  de  Bode  v.  Reginam,  10  Jur.  217.  In  this  case,  a  learned  French 
advocate  stated,  on  his  cross-examination,  that  the  feudal  law,  which  had  prevailed  in 
Alsace,  was  abolished  by  a  general  decree  of  the  National  Assembly  of  France,  on  the 
4th  of  August,  1789.  Being  asked  whether  he  had  read  that  decree  in  the  books  of 
the  law,  in  the  course  of  his  study  of  the  law,  he  replied  that  he  had  ;  and  that  it  was 
part  of  the  history  of  the  law,  which  he  learnt  when  studying  the  law.  He  was  then 
asked  as  to  the  contents  of  that  decree  ;  and  the  admissibility  of  tlrts  question  was  the 
point  in  judgment.  On  this  point.  Lord  Denman,  C.  J.,  said  :  "  The  objection  to  the 
question,"  in  whatever  mode  put,  is,  that  it  asks  the  witness  to  give  the  contents  of  a 
written  instrument,  the  decree  of  1789,  contrary  to  a  general  rule,  that  such  evidence 
cannot  be  given  without  the  production  of  the  instrument,  or  accounting  for  it.  In 
my  opinion,  however,  that  question  is  within  another  general  rule,  that  the  opinion  of 
skilful  and  scientific  persons  is  to  be  received  on  subjects  with  which  they  are  conver- 
sant. I  think  that  credit  must  be  given  to  the  opinion  of  legal  men,  who  are  bound 
to  know  the  law  of  the  country  in  which  they  practise,  and  that  we  must  take  from 
them  the  account  of  it,  whether  it  be  the  unwritten  law,  which  they  may  collect  from 
practice,  or  the  wi'itten  laws,  which  they  are  also  bound  to  know.  I  apprehend  that 
the  evidence  sought  for  would  not  set  forth  generally  the  recollection  of  the  witness  of 
the  contents  of  the  instrument,  but  his  opinion  as  to  the  etfect  of  the  particular  law. 
The  instrument  itself  might  frequently  mislead,  and  it  might  be  necessary  that  the 
knowledge  of  the  practitioner  shouhl  be  called  in,  to  show  that  the  sense  in  which  the 
instrument  would  be  naturally  construed  by  a  foreigner  is  not  its  true  legal  sense.  It 
appears  to  me  that  the  distinction  between  this  decree  and  treaties,  manorial  customs, 
or  acts  of  common  council,  is,  that,  with  regard  to  them,  there  is  no  profession  of  men 
whose  duty  it  is  to  make  them  their  study,  and  that  there  is,  therefore,  no  person  to 
whom  we  could  properly  resort,  as  skilfully  conversant  with  them.  The  cases  which 
have  been  referred  to  excite  much  less  doubt  in  my  mind  than  that  which  I  know  to  be 
entertained  by  one  of  my  learned  brothers,  to  whose  opinion  we  are  in  the  habit  of 
paying  more  respect  than  to  many  of  those  cases  which  are  most  familiarly  quoted  in 
Westminster  Hall."  He  then  cited  and  commented  on  the  cases  of  Boehtlinck  v. 
Schneider,  3  Esp.  58  ;  Clegg  v.  Levy,  3  Campb.  166  ;  Millar  v.  Heinrick,  4  Campb. 
155  ;  Lacon  v.  Higgins,  3  Stark.  178  ;  Gen.  Picton's  Case,  30  Howell  St.  Tr.  491  ; 
and  Middleton  v.  Janverin,  2  Hagg.  Cons.  437;  and  concluded  as  follows  :  "but  I  look 
to  the  importance  of  this  question  in  a  more  extensive  point  of  view.  Books  of  author- 
ity must  certainly  be  resorted  to,  upon  questions  of  foreign  law.  Pothier,  for  instance, 
states  the  law  of  France,  and  he  states  it  as  arising  out  of  an  ordonnance  made  in  such 
a  year,  and  he  gives  his  account  of  that  ordonnance  ;  and  are  we  to  say  that  that  would 
not  be  taken  as  evidence  of  the  law  of  France,  because  it  is  an  account  of  the  contents 
of  a  written  document  ?  Suppose  a  question  to  arise  suddenly  in  one  of  our  courts  upon 
the  state  of  the  English  law,  could  a  statement  in  Blackstone's  Commentaries,  as  to 
what  the  law  is  on  the  subject,  and  when  it  was  altered  to  what  it  now  is,  be  refused  ? 
And  it  seems  to  me  that  the  circumstance  of  the  question  having  reference  to  the  period 
at  which  a  statute  passed,  makes  no  difference.  I  attach  the  same  credit  to  the  witness 
giving  his  account  of  a  branch  of  the  French  law,  as  I  should  to  a  book  which  he 
might  accredit  as  a  book  of  authority  upon  the  law  of  France.  I  find  no  authority 
directly  opposed  to  the  admissibility  of  this  evidence,  except  some  expressions  much 

{a)  In  The  Pawaschick,  2  Low.  142,  it  tify  as  to  the  written  law  of  Havana,  and 
was  said  that  the  written  law  of  England  to  refresh  his  memory  from  a  bonk  pur- 
may  be  proved  by  printed  copies,  and  be  porting  to  be.  and  wliii;h  he  testified  was, 
construed  with  the  aid  of  text-books  as  the  Spanish  Code  of  C unmerce  in  force  in 
well  as  of  experts.  In  Barrows  v.  Downs,  Havana.  Cf.  Mass.  Pub.  Stat.  c.  169, 
9  R.  I.  446,  a  witness  was  allowed  to  tes-  §  73. 


636  LAW    OF   EVIDENCE.  [PART    III. 

own  government  has  promulgated  any  foreign  law,  or  ordinance  of 
a  public  nature,  as  authentic,  that  may,  of  itself,  be  sufficient  evi- 
dence of  the  actual  existence  and  terms  of  such  law  or  ordinance.^ 
§  488.  Same  subject.  "  In  general,  foreign  laws  are  required 
to  be  verified  by  the  sanction  of  an  oath,  unless  they  can  be  veri- 
fied by  some  high  authority,  such  as  the  law  respects,  not  less 
than  it  respects  the  oath  of  an  individual.^  (a)  The  usual  mode 
of  authenticating  foreign  laws  (as  it  is  of  authenticating  foreign 
judgments),  is  by  an  exemplification  of  a  copy,  under  the  great 
seal  of  a  State ;  or  by  a  copy  proved  to  be  a  true  copy,  by  a  wit- 
ness who  has  examined  and  compared  it  with  the  original ;  or  by 
the  certificate  of  an  officer  properly  authorized  by  law  to  give  the 
copy;  which  certificate  must  itself  also  be  duly  authenticated. ^ 
But  foreign  unwritten  laws,  customs,  and  usages  may  be  proved, 
and  indeed  must  ordinarily  be  proved,  by  parol  evidence.  The 
usual  course  is  to  make  such  proof  by  the  testimony  of  compe- 
tent witnesses,  instructed  in  the  laws,  customs,  and  usages, 
under   oath.^     Sometimes,    however,   certificates   of   persons    in 

stronger  than  the  cases  warranted  or  required  ;  and  I  find  some  decisions  which  go  the 
whole  length  in  favor  of  its  admissibility  ;  for  I  see  no  distinction  between  absolute 
proof  by  a  direct  copy  of  the  law  itself,  and  the  evidence  which  is  now  tendered  ;  and 
I  think  that  the  general  principle  to  which  I  have  referred  establishes  the  admissibility 
of  it."  See  10  Jur.  218,  219  ;  s.  c.  8  Ad.  &  El.  208.  Williams,  J.,  and  Coleridge,  J. 
concurred  in  this  opinion.  Patteson,  J.,  dissentiente.  See  also  Cocks  v.  Purday,  2  C. 
&  K.  269. 

2  Story  on  Confl.  of  Laws,  §  640 ;  Talbot  v.  Seeman,  1  Cranch,  38.  The  acts  of 
state  of  a  foreign  government  can  only  be  proved  by  copies  of  such  acts,  properly 
authenticated.     Richardson  v.  Anderson,  1  Campb.  65,  n.  (a). 

1  Church  V.  Hubbart,  2  Cranch,  237  ;  Brackett  v.  Norton,  4  Conn.  517  ;  Hemp- 
stead V.  Reed,  6  Conn.  480  ;  Dyer  v.  Smith,  12  Conn.  384.  But  the  court  may  pro- 
ceetl  on  its  own  knowledge  of  foreign  laws,  without  the  aid  of  other  proof :  and  its 
judgment  will  not  be  reversed  for  that  cause,  unless  it  should  appear  that  the  court 
was  mistaken  as  to  those  laws.     State  v.  Rood,  12  Vt.  396. 

2  Church  V.  Hubbart,  2  Cranch,  238  ;  Packard  v.  Hill,  2  Wend.  411 ;  Lincoln  v. 
Battelle,  6  Wend.  475. 

3  Church  V.  Hubbart,  2  Cranch,  237  ;  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist. 
App'x,  pp.  115-144  ;  Brush  v.  Wilkins,  4  Johns.  Ch.  520  ;  Mostyn  v.  Fabrigas,  Cowp. 
174.  It  is  not  necessary  that  the  witness  should  be  of  the  legal  profession.  Reg.  v. 
Dent,  1  C.  &  K.  97.  But  whether  a  woman  is  admissible  as  peritus  quonre.  Reg.  v. 
Povey,  14  Eng.  Law  &  Eq.  549  ;  17  Jur.  120.  And  see  Wilcocks  v.  Phillips,  Wall. 
Jr.  47.  In  Michigan,  the  unwritten  law  of  foreign  States  may  be  proved  by  books  of 
reports  of  cases  adjudged  in  their  courts.  Rev.  Stat.  1846,  c.  102,  §  79.  So  in  Con- 
necticut. Rev.  Stat.  1849,  tit.  1,  §  132.  And  in  Massachusetts,  Rev.  Stat.  1836,  c.  94, 
§  60.  (6)  And  in  Maine,  Rev.  Stat.  1840,  c.  133,  §  48.  And  in  Alabama,  Inge  v. 
Murphy,  10  Ala.  885. 

(a)  Proof  of  the  written  law  of  a  for-  (6)  In  Massachusetts,  by  statute,  for- 
eign country  may  be  made  by  some  copy  eign  law,  whether  written  or  unwritten, 
of  the  law  which  the  witness  can  swear  may  be  proved  as  a  fact  by  oral  evidence, 
■was  recognized  as  authoritative  in  the  for-  but  if,  on  such  evidence,  the  law  appears 
eign  countrj',  and  which  was  in  force  at  to  be  written,  the  court  may  in  its  dis- 
the  time.  Spaulding  v.  Vincent,  24  Vt.  cretion  demand  a  copy  of  it.  Pub.  Stat. 
501.  Cf.  The  Pawaschick,  2  Low.  142  ;  c.  169,  §  73. 
BaiTows  V.  Downs,  9  R.  I.  446. 


CHAP.    IV.]  PUBLIC   DOCUMENTS.  637 

high  authority  have   been   allowed   as   evidence,   without  other 
proof. "  "*  (6) 

*  story  on  Confl.  of  Laws,  §§  641,  642  ;  Id.  §§  629-640.  In  re  Dormoy,  3  Hagcr. 
Eccl.  767,  7t>9  ;  Ilex  v.  Pictoii,  3U  Howell's  State  Trials,  515-673  ;  The  Diana,  1  Dods. 
95,  101,  102.  A  copy  of  the  code?  of  laws  of  a  foreign  nation,  printed  by  order  of  the 
foreign 'government,  it  seems,  is  not  admissible  evidence  of  those  laws  ;  but  they  must 
be  proved,  as  stated  in  the  text.  Chanoine  v.  Fowler,  3  Wend.  173  ;  Hill  v.  Packard, 
5  Wend.  375,  384,  389.  But  see  United  States  v.  Glass  Ware,  4  fcaw  Reporter,  36,  where 
Betts,  J.,  held  the  contrary  ;  the  printed  book  having  been  purchased  of  the  Queen's 
printer.  See  also  Farmers'  and  Mechanics'  Bank  v.  Ward,  Id.  37  s.  p.  (c)  In  regard 
to  the  effect  of  foreign  laios,  it  is  generally  agreed  that  they  are  to  govern  everywhere, 
so  far  as  may  concern  the  validity  and  interpretation  of  all  contracts  made  under  or 
with  respect  to  them  ;  where  the  contract  is  not  contrary  to  the  laws  or  policy  of  the 
country  in  which  the  remedy  is  sought.  An  exception  has  been  admitted  in  the  case  ot 
foreign  revenue  laws  ;  of  which,  it  is  said,  the  courts  will  not  take  noticie,  and  which  will 
not  be  allowed  to  invalidate  a  contract  made  for  the  express  purpose  of  violating  them. 
This  exception  has  obtained  place  upon  the  supposed  authority  of  Lord  Hardwicke,  in 
Boucher  v.  Lawson,  Cas.  temp.  Hardw.  89,  194,  and  of  Lord  Mansfield,  in  Planche  v. 
Fletcher,  1  Doug.  252.  But  in  the  former  of  these  cases,  which  was  that  of  a  shipment 
of  gold  in  Portugal  to  be  delivered  in  London,  though  the  exportation  of  gold  was 
forbidden  by  the  laws  of  Portugal,  the  judgment  was  right  on  two  grounds  :  first,  be- 
cause the  foreign  law  was  contrary  to  the  policy  and  interest  of  England,  where  bullion 
was  very  mucir needed  at  that  time  ;  and,  secondly,  because  the  contract  was  to  be  per- 
formed in  England ;  and  the  rule  is,  that  the  law  of  the  place  of  ijcrformance  is  to 
govern.  The  latter  of  these  cases  was  an  action  on  a  policy  of  insurance,  on  a  voyage  to 
Nantz,  with  liberty  to  touch  at  Ostend  ;  the  vessel  being  a  Swedish  bottom,  and  the  voy- 
age being  plainly  intended  to  introduce  into  France  English  goods,  on  which  duties  were 
high,  as  Dutch  goods,  on  which  much  lower  duties  were  charged.  Here,  too,  the  French 
law  of  high  countervailing  duties  was  contrary  to  British  interest  and  policy  ;  and 
moreover,  the  French  ministry  were  understood  to  connive  at  this  course  of  trade,  the 
supply  of  such   goods  being  necessary  for   French  consumption.       Both  these  cases, 

(h)  The  unwritten  law  may  be  proved  wright  v.   Cartwright,  26  W.  R.  684.     In 

by  experts,  by  text-books  of  authority,  and  New  Hampshire,  any  person  appearing  to 

by  the  printed  reports  of  adjudged  cases,  the  Court  to  be  sufficiently  qualified  may 

The  Pawaschick,   2   Low.    142  ;    State  v.  testify  to    the    law    of   another   country. 

Moy  Looke,  7  Oreg.  54.  Hall  v.  C'ostello,  48  N.  H.  176.     And  in  a 

The  qualifications  of  a  witness  to  testify  later  case  in  that  State,  it  was  held  that 

as  to  foreign  laws  is  for  the  Court.     It  ha's  experienced  lawyers  of  another  State  may 

been  said  that  only  a  professional  man  be-  be  summoned  as  witnesses  to  prove  the  laws 

longing  to  the  country  whose  laws  are  in  of  their  State,  and  their  testimony  may  be 

question,  or  one  holding  an  official  posi-  corroborated   by    the  decisions   of  courts 

tion,    and    therefore    presumed    to    have  and  the  statutes  of  the  State.     Kennard  v. 

knowledge,  is  competent  as  an  expert  in  Kennard,    63   N.    H.   308.     And   further, 

such  cases.     Sussex   Peerage  Case,  11  C.  that  foreign  unwritten  law,  including  the 

&F.  134.  A  Roman  Catholic  bishop  is  com-  prevailing  construction  of  a  foreign  stat- 

petent  on  questions  of  the  matrimonial  law  ute,    may  be    proved   by  competent  wit- 

of  Rome  (Ibid.);  and  a  French  vice-consul  nesses.     Jenne  v.   Harrisville,    63  N.   H. 

was  permitted  by  Ld.Tenterden  to  testify  as  405.     And  to  the  same  effect  is  American 

to  the  law  of  France.     Lacon  v.  Higgins,  3  L.  Ins.  Co.  v.  Rosenagle,  77  Pa.  St.  507. 
Stark.  178.  But  the  law  of  one  country  can-  (c)  Charlotte  v.  Chouteau,  33  Mo.  194. 

not  be  proved  by  one  who  has  learned  of  it  A  copy  of  the   Code  Civile,   purporting  to 

only  in  a  university  of  another  (Bristow  have   been  printed  at  the  royal   press  in 

V.  Seejueville,  5  Ex."  275  ;  In  the  Goods  of  Paris,  and  to  be  presented  by  the  keeper 

Bonelli,  L.  R.  1  Prob.  Div.  69),  nor  by  a  of  the  seals  to  the  Supreme  Court  of  the 

mere  merchant,  however  ample  may  be  his  United  States,  is  admissible  in  evidence, 

knowledge,    Sussex   Peerage   case,  supra,  Ennis  v.  Smith,  14  How.  (U.  S.)  400.    So 

Nor   is   an    English   barrister,    practising  is  a  copy  which  a  witness  can  swear  is  re- 

before  the  Judicial  Committee  of  the  Privy  cognized  as  authoritative  in    the    foreign 

Council,  which  is  the  court  of  appeal  for  country.     Spaulding  v.   Vincent,   24   Vt. 

Canada,  an  expert  in  Canadian  law.    Cart-  501. 


G38  LAW    OF    EVIDENCE.  [PART    III. 

§  489.  Inter-State  relations.  The  relations  of  the  United  States 
to  each  other,  in  regard  to  all  matters  not  surrendered  to  the  gen- 
eral government  by  the  national  constitution,  are  those  oi  foreign 
States  in  close  friendship,  each  being  sovereign  and  independent.^ 
Upon  strict  principles  of  evidence,  therefore,  the  laws  and  public 
documents  of  one  State  can  be  proved  in  the  courts  of  another 
only  as  other  foreign  laws.  And,  accordingly,  in  some  of  the 
States,  such  proof  has  been  required.2(a)  But  the  courts  of  other 
States,  and  the  Supreme  Court  of  the  United  States,  being  of  opin- 
ion that  the  connection,  intercourse,  and  constitutional  ties  which 
bind  together  these  several  States  require  some  relaxation  of  the 
strictness  of  this  rule,  have  accordingly  held  that  a  printed  vol- 
ume, purporting  on  the  face  of  it  to  contain  the  laws  of  a  sister 
State,  is  admissible  a^  prima  facie  evidence,  to  prove  the  statute 
laws  of  that  State.  2     The  act  of  Congress  respecting  the  exem- 

therefore,  may  well  stand  on  the  gronnd  of  the  admitted  qualification  of  the  general 
rule  ;  and  the  brief  geneial  observations  of  those  learned  jmlges,  if  correctly  reported, 
may  be  regarded  as  obiter  dicta..  But  it  should  be  remembered,  that  the  language  of 
the  lea.-ned  judges  seems  to  import  nothing  more  than  that  courts  will  not  fnfce  notice 
of  foreign  revenue  laws  ;  and  such  seems  to  have  been  the  view  of  Lord  Deuman,  in 
the  recent  case  of  Spence  v.  Chodwick,  11  Jur.  874,  where  he  said  :  "  We  are  not  bound 
to  take  notice  of  the  revenue  laws  of  a  foreign  country  ;  but  if  ive  are  informed  of 
them,  that  is  another  case."  And  see  10  Q.  B.  517.  The  exception  alluded  to  was 
tacitly  disapproved  by  Lord  Kenyon,  in  Waymell  v.  Reed,  5  T.  R.  599,  and  is  explicitly 
condemned  as  not  founded  in  legal  or  moral  principle,  by  the  best  modern  jurists.  See 
Vattel,  b.  2,  c.  5,  §  64  ;  Id.  c.  6,  §  72  ;  Pothier  on  Assurance,  n.  58  ;  Marshall  on 
Ins.  pp.  59-61  (2d  ed.)  ;  1  Chitty  on  Comm.  &  Manuf.  pp.  83,  84  ;  3  Kent,  Comm. 
266,  267;  Story,  Confl.  Laws,  §  257;  Story  on  Bills,  §  136  ;  Story  on  Agency,  §§  197, 
343,  n.  (2d  ed"). 

1  Ivfra,  §  504. 

2  Brackett  v.  Norton,  4  Conn.  517,  521;  Hempstead  )•.  Reed,  6  Conn.  480  ;  Pack- 
ard V.  Hill,  2  Wend.  411. 

8  Young  V.  Bank  of  Alexandria,  4  Cranch,  384,  388  ;  Thompson  v.  Musser,  1 
Dall.  458,  463  ;  Biddis  v.  James,  6  Binn.  321,  327  ;  Muller  v.  Morris,  2  Barr,  85  ; 
Raynham  v.  Canton,  3  Pick.  293,  296  ;  Kean  v.  Rice,  12  S.  &  R.  203  ;  State  v.  Stade, 
1  D.  Chipm.  303  ;  Comparet  v.  Jernegan,  5  Blackf.  375  ;  Taylor  v.  Bank  of  Illinois, 
7  Monroe,  585;  Taylor ;;.  Bank  of  Alexandria,  5  Leigh,  471;  Clarke  v.  Bank  of  Missis- 
sippi, 5  Eng.  516  ;  Allen  v.  Watson,  2  Hill  (S.  C),  319;  Hale  v.  Rose,  2  Pennington, 
591.  But  see  Van  Buskirk  v.  Mulock,  3  Harrison,  185,  contra.  In  some  States,  the 
rule  stated  in  the  text  has  been  expressly  enacted.  See  Connecticut,  Rev.  Stat.  1849, 
tit.  1,  §  131;  Michigan,  Rev.  Stat.  1846,  c.  102,  §  78;  Mississippi,  Hutchins.  Dig.  1848, 
c.  60,  art.  10;  Missouri,  Rev.  Stat.  1845,  c.  59,  §§  4-6  ;  Wisconsin,  Rev.  Stat.  1849, 
c.  98,  §  54  ;  Maine,  Rev.  Stat.  1840,  c.  133,  §  47  ;  Massachu.setts,  Rev.  Stat.  1836, 
c.  94,  §59;  {b)  New  York,  Stat.  1848,  c.  312  ;   Florida,  Thomps.  Dig.  p.  324  ;  Kean  v. 

{a)  Cf.  as  to  mode  of  authentication,  Barnes,  50  Ala.  260;  Martin  i-.  Payne,  11 

Rice's  Succession,  21  La.  An.  614.  Tex.  292;  Merritield  v.   Robbin.s,  8  Gray, 

(b)   Such  copies  are  admitted  in  Ma.ssa-  150.     Where  the  statute  admitted  copies 

chusetts   if  purporting   to  be   published,  published    by   authority     of    the    "  State 

under  the  authority  of  the  State  govern-  government"  of  another  State,  it  was  held 

ment,  or  if  commonly  admitted  and  read  that  a  copy  purporting  to  be  printed  by 

as  evidence  in  the  courts  of   that  State.  "  order  of  the  Governor  "  was  admissible. 

Pub.  Stat.    c.  169,   §  71;  Ashley  v.  Root,  Wilt  v.  Cutler,  38  Mich.  189.     Cf.  Pacific 

4  Allen,  504.     Similar  statutes  exist  gen-  Pneumatic  Gas  Co.  v.  Wheelock,  44  N.  Y. 

erally  in  the  United  States.     Clanton  v.  Super.    Ct.    566.      In    Massachusetts,  the 


CHAP.  IV.J  PUBLIC  DOCUMENTS.  639 

plification  of  public  office  books  ^  is  not  understood  to  exclude  any 
other  modes  of  authentication  which  the  courts  may  deem  it 
proper  to  admit. ^  And  in  regard  to  the  laws  of  the  States,  Con- 
gress has  provided/  under  the  power  vested  for  that  purpose  by 
the  constitution,  that  the  acts  of  the  legislatures  of  the  several 
States  shall  be  authenticated  by  having  the  seal  of  their  respec- 
tive States  affixed  thereto;  but  this  method,  as  in  the  case  of 
public  books  just  mentioned,  is  not  regarded  as  exclusive  of  any 
other  which  the  States  may  respectively  adopt."  (c)  Under  this 
statute  it  is  held,  that  the  seal  of  the  State  is  a  sufficient  authen- 
tication, without  the  attestation  of  any  officer  or  any  other  proof; 
and  it  will  be  presumed  priina  facie  that  the  seal  was  affixed  by 
the  proper  officer.^ 

§  490.  Relations  of  States  to  United  States.  The  reciprocal 
relations  between  the  national  government  and  the  several  States, 
comprising  the  United  States,  are  not  foreign  but  domestic. 
Hence,  the  courts  of  the  United  States  take  judicial  notice  of  all 
the  public  laws  of  the  respective  States  whenever  they  are  called 
upon  to  consider  and  apply  them.  And,  in  like  manner,  the 
courts  of  the  several  States  take  judicial  notice  of  all  public  acts 
of  Congress,  including  those  which  relate  exclusively  to  the  Dis- 
trict of  Columbia,  without  any  formal  proof.  ^  But  private  stat- 
utes must  be  proved  in  the  ordinary  mode.^ 

§  491.  Admissibility  and  effect  of  public  documents.  We  are 
next  to  consider  the  admissibility  and  effect  of  the  public  docu- 
ments we  have  been  speaking  of,  as  instruments  of  evidence. 
And  here  it  may  be  generally  observed,  that  to  render  such  docu- 

Rice,  12  S.  &  E.  203  ;  North  Carolina,  Rev.  Stat.  1837,  c.  44,  §  4.  The  ccmmnn  law 
of  a  sister  State  may  be  shown  by  the  books  of  reports  of  adjudged  cases,  accredited  in 
that  State.     Inge  v.  Murphy,  10  Ala.  88.5. 

*  Stat.  March  27,  1804,  cited  supra,  §  485. 

*  See  cases  cited  supra,  n.  (2). 

6  Stat.  May  26,  1790,  1  LL.  U.  S.  c.  38  [11],  p.  102  (Bioren's  ed.)  [1  U.  S.  Stat,  at 
Large  (L.  &  B.'s  ed.),  122]. 

7  Lothrop  V.  Blake,  3  Barr,  483. 

8  United  States  v.  Amedy,  11  Wheat.  392;  United  States  v.  Johns,  4  Dall.  412  ; 
State  V.  Carr,  5  N.  H.  367. 

1  0 wings  V.  Hull,  9  Peters,  607  ;  Hinde  v.  Vattier,  5  Peters,  398  ;  Young  v.  Bank 
of  Alexandria,  4  Cranch,  384,  388  ;  Canal  Co.  v.  Railroad  Co.,  4  G.  &  J.  1,  63. 

2  Leland  v.  Wilkinson,  6  Peters,  317. 

unwritten  law  of  any  of  the  United  States  (c)  The  exemplification  may  be  of  such 

or  Territories  may  be  proved  by  experts  or  part  of  a  statute  as  bears  on  the  point  in 

by  the  books  of  decisions.      Pub.  Stat.  c.  dispute,  and  need  not  be  of  tlic  whole  stat- 

169,  §  72  ;  Penobscot  &  Kenn.  R.  R.  Co.  ute.     Grant  v.  H.  Clay  Coal  Company,  80 

V.  Bartlett,  12  Gray,  244  ;  Cragin  v.  Lam-  Pa.  St.   208.     As  to  the  seal,  of.  Fisk  v. 

kin,  7  Allen,  395  ;    Ames  v.  McCamber,  Woodruff,  15  111.  15. 
124.  Mass.  90. 


640  LAW    OP    EVIDENCE,  [PART    III. 

merits,  when  properly  authenticated,  admissible  in  evidence,  their 
contents  must  be  })ertinent  to  the  issue.  It  is  also  necessary 
that  the  document  be  made  by  the  person  whose  duty  it  was  to 
make  it,  and  that  the  matter  it  contains  be  such  as  belonged  to  his 
province,  or  came  within  his  official  cognizance  and  observation. 
Documents  having  these  requisites  are,  in  general,  admissible  to 
prove,  either  prima  facie  or  conclusively,  the  facts  they  recite. 
Thus,  where  certain  public  statutes  recited  that  great  outrages  had 
been  committed  in  a  certain  part  of  the  country,  and  a  public 
proclamation  was  issued,  with  similar  recitals,  and  offering  a 
reward  for  the  discovery  and  conviction  of  the  perpetrators,  these 
were  held  admissible  and  sufficient  evidence  of  the  existence  of 
those  outrages,  to  support  the  averments  to  that  effect  in  an  in- 
formation for  a  libel  on  the  government  in  relation  to  them.^  So, 
a  recital  of  a  state  of  war,  in  the  preamble  of  a  public  statute,  is 
good  evidence  of  its  existence,  and  it  will  be  taken  notice  of  with- 
out proof ;  and  this,  whether  the  nation  be  or  be  not  a  party  to  the 
war. 2  So,  also,  lecjislative  resolutions  are  evidence  of  the  public 
matters  which  they  recite.'^  T\\q  journals,  also,  of  either  House 
are  the  proper  evidence  of  the  action  of  that  House  upon  all  mat- 
ters before  it*  The  diplomatic  correspondence  communicated  by 
the  President  to  Congress,  is  sufficient  evidence  of  the  acts  of  for- 
eign governments  and  functionaries  therein  recited.^  A  foreign 
declaration  of  ivar  is  sufficient  proof  of  the  day  when  the  state  of 
war  commenced.*^  Certified  copies,  under  the  hand  and  seal  of 
the  Secretary  of  State,  of  the  letters  of  a  public  agent  resident 
abroad,  and  of  the  official  order  of  a  foreign  colonial  governor 
concerning  the  sale  and  disposal  of  a  cargo  of  merchandise,  have 
been  held  admissible  evidence  of  those  transactions.'  How  far 
diplomatic  correspondence  may  go  to  establish  the  facts  recited 
therein  does  not  clearly  appear;  but  it  is  agreed  to  be  generally 
admissible  in  all  cases,  and  to  be  sufficient  evidence,  whenever 
the  facts  recited  come  in  collaterally,  or  by  way  of  introductory 


1  Rex  V.  Sntton,  4 11.  &  S.  532. 

2  Rex  V.  De  Berenger,  3  M.  &  S.  67,  69.  See  also  Brazen  Nose  College  v.  Bishop 
of  Salisbury,  4  Taunt.  831. 

3  Rex  V.  Francklin,  17  Howell's  St.  Tr.  637. 

*  Jones  V.  Randall,  Cowp.  17  ;  Root  v.  King,  7  Cowen,  613  ;  Spangler  v.  Jacoby, 
14  111.  299. 

6  Radcliff  V.  United  In.s.  Co.,  7  Johns.  38,  51  ;  Talbot  v.  Soeman,  1  Cranch,  1,  37, 
38 

«  Thelluson  v.  Gosling,  4  Esp.  266  ;  Bradley  v.  Arthur,  4  B.  &  C.  292,  304.  See 
also  Foster,  Disc.  1,  c.  2,  §  12,  that  public  notoriety  is  sufficient  evidence  of  the  exist- 
ennp  of  war. 

T  Bingham  v.  Cabot,  3  Dall.  19,  23,  39-41. 


CHAP.  IV.]  PUBLIC  DOCUMENTS.  641 

averment,  and  are  not  the  princii)al  point  in  issue  before  tlie 
jury.8(rt)  _ 

§  492,  Government  gazette.  The  government  gazette  is  admis- 
sible and  sufficient  evidence  of  such  acts  of  the  executive,  or  of 
the  government,  as  are  usually  announced  to  the  public  through 
that  channel,  such  as  proclamations, ^  and  the  like.  For,  besides 
the  motives  of  self-interest  and  official  duty  which  bind  the  pub- 
lisher to  accuracy,  it  is  to  be  remembered,  that  intentionally  to 
publish  anything  as  emanating  from  public  authority,  with  knowl- 
edge that  it  did  not  so  emanate,  would  be  a  misdemeanor.  ^'^  But, 
in  regard  to  other  acts  of  public  functionaries,  having  no  relation 
to  the  affairs  of  government,  the  gazette  is  not  admissible 
evidence.  ^^(?)) 

§  493,  Official  registers.  In  regard  to  official  registers,  we  have 
already  stated  ^  the  principles  on  which  these  books  are  entitled 
to  credit ;  to  which  it  is  only  necessary  to  add,  that  where  the 
books  possess  all  the  requisites  there  mentioned,  they  are  admis- 
sible as  competent  evidence  of  the  facts  they  contain.  But  it  is 
to  be  remembered  that  they  are  not,  in  general,  evidence  of  any 
facts  not  required  to  be  recorded  in  them, 2  and  which  did  not 
occur  in  the  presence  of  the  registering  officer.  Thus,  a  parish 
register  is  evidence  only  of  the  time  of  the  marriage,  and  of 
its  celebration  de  facto  ;  for  these  are  the  only  facts  necessarily 
within  the  knowledge  of  the  party  making  the  entry. ^  So,  a 
register  of  baptism,  taken  by  itself,  is  evidence  only  of  that  fact; 
though  if  the  child  were  proved  aliunde  to  have  then  been  very 
young,  it  might  afford  presumptive  evidence  that  it  was  born  in 
the  same  parish.^  Neither  is  the  mention  of  the  child's  age  in 
the  register  of  christenings  proof  of  the  day  of  his  birth,  to  sup- 

8  Radeliff  V.  United  Ins.  Co.,  7  Johns.  51,  per  Kent,  C.  J. 

9  Rex  V.  Holt,  5  T.  R.  436,  443  ;  Attorney-General  v.  Theakstone,  8  Price,  89  ; 
mpra,  §  480,  and  eases  cited  in  note  ;  Gen,  Picton's  Case,  30  Howell's  St,  Tr.  493, 

10  2  Phil,  Kvid.  108. 

"  Rex  V.  Holt,  5  T.  R.  443,  per  Ld,  Kenyon, 

1  Supra,  §§  483-485. 

2  Fitler  v.  Sliotwell,  7  Watts  &  Serg,  14;  Brown  v.  Hicks,  1  Pike,  232  ;  Haile  i;. 
Palmer,  5  Mo.  403  ;  supra,  §  485, 

3  Doe  V.  Barnes,  1  M.  &  Rob.  386,  389.  As  to  the  kind  of  books  which  may  be  read 
as  registers  of  marriage,  see  2  Phil.  Evid.  112-114. 

*  Rex  V.  North  Petherton,  5  B.  &  C.  508  ;  Clark  v.  Trinity  Church,  5  Watts  & 
Serw,  266, 

{a)  Sturla  v.  Freccia,  L.  R.  12  Ch.  Div.  as  to  such  facts  as  it  was  his  duty  to  re- 

411.     The   same   case   holds   that   ofEcial  cord,  citing  Chambers  v.  Bernasconi,  1  C. 

documents,  when  they  are  admissible  as  M.  &  R.  347.     See  ante,  §  152,  and  notes, 

the  declarations  of  a  deceased  person  made  (h)  Brundred  i;.  Del  Hoyo,  20  N.  J.  L. 

in  the  course  of  his  duty,  are  evidence  only  328. 

VOL.    I.  —  41 


642  LAW   OF   EVIDENCE.  [PART   III. 

port  a  plea  of  infancy.^ (a)  In  all  these  and  similar  cases  the 
register  is  no  proof  of  the  identity  of  the  parties  there  named 
with  the  parties  in  controversy ;  but  the  fact  of  identity  must  be 
established  by  other  evidence.^  It  is  also  necessary,  in  all  these 
cases,  that  the  register  be  one  which  the  law  requires  should  be 
kept,  and  that  it  be  kept  in  the  manner  required  by  law.'^  Thus, 
also,  the  registers  kept  at  the  navy  office  are  admissible  to  prove 
the  death  of  a  sailor,  and  the  time  when  it  occurred,^  as  well  as 
to  show  to  what  ship  he  belonged,  and  the  amount  of  wages  due  to 
him.^(6)  The  prison  calendar  is  evidence  to  prove  the  date  and 
fact  of  the  commitment  and  discharge  of  a  prisoner,  i''  The  books 
of  assessment  of  public  taxes  are  admissible  to  prove  the  assess- 
ment of  the  taxes  upon  the  individuals,  and  for  the  property 
therein  mentioned. ^^  (c)     The  books  of  municipal  corporations  are 

5  Burghart  v.  Angerstein,  6  C.  &  P.  690.  See  also  Rex  v.  Clapham,  4  C.  &  P.  29  ; 
Huet  V.  Le  Mesurier,  1  Cox,  Eq.  275  ;  Childress  v.  Cutter,  16  Mo.  24. 

6  Birt  V.  Barlow,  1  Doug.  170  ;  Bain  v.  Mason,  1  C.  k  P.  202,  and  n.  ;  Wedgwood's 
Case,  8  Greeul.  75.     As  to  proof  of  identity,  see  ante,  §  33,  n. 

^  See  the  cases  cited  supra,  §  484,  n.  (10)  ;  Kewham  v.  Raithby,  1  Phillim.  315. 
Therefore  the  books  of  the  Fleet  and  of  a  Weslej'an  chapel  have  been  rejected.  Read 
V.  Passer,  1  Esp.  213  ;  Wliittnek  v.  Waters,  4  C.  &  P.  375.  It  is  said  that  a  copy  of 
a  register  of  baptism,  kept  in  the  island  of  Guernsey,  is  not  admissible  ;  for  which  Huet 
V.  Le  Mesurier,  1  Cox,  Eq.  275,  is  cited.  But  the  report  of  that  case  is  short  and 
obscure  ;  and,  for  aught  appearing  to  tlie  contrary,  the  register  was  rejected  only  as  not 
competent  to  prove  the  nrfe  of  the  person.  It  i.s  also  said,  on  the  authority  of  Leader 
V.  Barry,  1  Esp.  353,  that  a  copy  of  a  register  of  a  foreign  chapel  is  not  evidence  to 
prove  a  marriage.  But  tliis  point,  alsO;  is  very  briefly  reported,  in  three  lines  ;  and  it 
does  not  appear  but  that  the  ground  of  the  rejection  of  the  register  was  that  it  was  not 
authorized  or  required  to  be  kept  by  the  laws  of  France,  where  the  marriage  was  cele- 
brated ;  namely,  in  the  Swedish  ambassador's  chapel,  in  Paris.  And  such,  probably 
enough,  was  the  fact.  Subsequently  an  examined  copy  of  a  register  of  marriages  in 
Barbadoes,  has  been  admitted.  Good  v.  Good,  1  Curt.  755.  In  the  United  States,  an 
authenticated  copy  of  a  foreign  register,  legally  kept,  is  admissible  in  evidence.  Kings- 
ton V.  Lesley,  10  S.  &  R.  383,  389. 

8  Wallace  v.  Cook,  5  Esp.  117  ;  Barber  v.  Holmes,  3  Esp.  190. 

9  Rex  V.  Fitzgerald,  1  Leach,  Cr.  Cas.  24  ;  Rex  v.  Rhodes,  Id.  29. 

10  Sake  V.  Thomas,  3  B.  &  P.  188  ;  Rex  v.  Aickles,  1  Leach,  Cr.  Cas.  435. 

"  Doe  V.  Seaton,  2  Ad.  &  El.  178  :  Doe  ;;.  Arkwright,  Id.  182,  n.  ;  Rex  v.  King,  2 
T.  R.  234  ;  Rcmkendorfi'y.  Taylor,  4  Peters,  349,  360.  Such  books  are  also  prima  facie 
evidence  of  domicile.     Doe  v.  Cartwright,  Ry.  &  M.  62  ;  1  C.  &  P.  218. 

(o.)  Nor  is  the  .statement  of  the  date  of  (c)  Com.  v.  Heffron,  102  Mass.  148.   In 

birth,   made  in  a  registry  of  births  kept  Worcester  r.  North  borough,  140  Mass.  400, 

under  a  law  which  re(iuires  the  register  to  the  issue  being  the  settlement  of  a  pauper 

enter  all  the  births  in  his  parish,  evidence  widow  of  a  soldier  deceased,  a  book  printed 

of  the  date  of  birth   except  so  far   as  it  by  the  adjutant-general,  under  a    resolve 

shows  that  the  person  was  born  before  the  of  the   legislature,   was   admitted  in  evi- 

date  of  the  entry.     In  re  Wintle,  L.  R.  9  dence,  on  the  issue  of  residence,  it  con- 

Eq.  373.  taining  an  entry  of  the  deceased  soldier's 

(b)  The  record  kept  by  a  person  em-  name  as  one  of  a  regiment,  with  the  addi- 
ployed  in  the  Signal  Service  is  evidence  of  tion  "  Residence  or  place  credited  to  North- 
those  facts  which  it  is  his  duty  to  record,  borough."  The  admissibility  of  this  book 
Evanston  v.  Gunn,  99  U.  S.  660.  So  are  as  a  public  document  is  obvious.  The  en- 
lighthouse  records.  The  Maria  Pas  Dorias,  try  therein  was  evidence  of  the  residence 
32  L.  J.  Adm.  163.  of  the  soldier  or  of  the  place  to  which  he 


CHAP.  IV.]  PUBLIC  DOCUMENTS.  643 

evidence  of  the  elections  of  their  officers,  and  of  other  corporate 
acts  there  recorded. ^^  ^^/^  The  books  of  private  corporations  are 
admissible  for  similar  purposes  between  members  of  the  corpora- 
tion, for  as  between  them  the  books  are  of  the  nature  of  public 
books.  ^'"^  And  all  the  members  of  a  company  are  chargeable  with 
knowledge  of  the  entries  made  on  their  books  by  their  agent,  in 
the  course  of  his  business,  and  with  the  true  meaning  of  those 
entries,  as  understood  by  him.^*  But  the  books  cannot,  in  gen- 
eral, be  adduced  by  the  corporation  in  support  of  its  own  claims 
against  a  stranger.  ^^ 

§  494.  Ship's  register.  The  registry  of  a  ship  is  not  of  the 
nature  of  the  public  or  official  registers  now  under  considera- 
tion, the  entry  not  being  of  any  transaction  of  which  the  public 
officer  who  makes  the  entry  is  conusant.  Nor  is  it  a  document 
required  by  the  law  of  nations,  as  expressive  of  the  ship's  na- 
tional character.  The  registry  acts  are  considered  as  institutions 
purely  local  and  municipal,  for  purposes  of  public  policy.  The 
register,  therefore,  is  not  of  itself  evidence  of  property,  except  so 
far  as  it  is  confirmed  by  some  auxiliary  circumstance,  showing 
that  it  was  made  by  the  authority  or  assent  of  the  ])erson  named 
in  it,  and  who  is  sought  to  be  charged  as  owner.  Without  such 
connecting  proof,  the  register  has  been  held  not  to  be  even  prima 
facie  evidence,  to  charge  a  person  as  owner;  and  even  with  such 
proof,  it  is  not  conclusive  evidence  of  ownership;  for  an  equi- 
table title  in  one  person  may  well  consist  with  the  documentary 
title  at  the  custom-house  in  another.  Where  the  question  of 
ownership  is  merely  incidental,  the  register  alone  has  been 
deemed  sufficient  prima  facie  evidence.  But  in  favor  of  the 
person  claiming  as  owner  it  is  no  evidence  at  all,  being  nothing 
more  than  his  own  declaration.  ^ 

§  495.  Ship's  log-book.  A  ship^s  log-booJc,  where  it  is  required 
by  law  to  be  kept,  is  an  official  register,  so  far  as  regards  the 
transactions  required  by  law  to  be  entered  in  it;  but  no  further. 

12  Rex  V.  Martin,  2  Campb.  100. 

13  Marriage  v.  Lawrence,  3  B.  &  Aid.  144  ;  Gibbon's  Case,  17  Howell's  St.  Tr.  810. 
1*  Allen  V.  Coit,  6  Hill  (N.  Y.),  318. 

1*  London  v.  Lynn,  1  H.  Bl.  214,  n.  (c)  ;  Commonwealth  v.  Woelper,  3  S.  &  R.  29  ; 
Highland  Turnpike  Co.  v.  McKean,  10  Johns.  154. 

1  3  Kent,  Coram.  149,  150  ;  Weston  v.  Penniman,  1  Mason,  306,  818,  per  Story,  J.; 
Bixby  V.  Franklin  Ins.  Co.,  8  Pick.  86  ;  Colson  v.  Bonzey,  6  Greenl.  474  ;  Abbott  on 
Shipping,  pp.  63-66  (Story's  ed.  and  notes);  Tinkler  r.  Walpole,  14  East,  226  ;  Mclver 
V.  Humble,  16  East,  169  :  Eraser  v.  Hopkins,  2  Taunt.  5  ;  Jones  v.  Pitcher,  3  Stewart 
&  Porter,  135. 

was  credited,   because   it  was  one  of  the  (d)  Halleck    v.    Boylston,    117    Mass. 

facts  which  the  resolve,  under  which  the     469, 
book  was  printed,  called  for. 


644  LAW    OF   EVIDENCE.  [PART   III. 

Thus,  the  act  of  Congress  ^  provides,  that  if  any  seaman  who  has 
signed  the  shipping  articles  shall  absent  himself  from  the  ship 
without  leave,  an  entry  of  that  fact  shall  be  made  in  the  log-book, 
and  the  seaman  will  be  liable  to  be  deemed  guilty  of  desertion. 
But  of  this  fact  the  log-book,  though  an  indispensable  document, 
in  making  out  the  proof  of  desertion,  in  order  to  incur  a  forfeiture 
of  wages,  is  never  conclusive,  but  only  prima  facie  evidence,  open 
to  explanation,  and  to  rebutting  testimony.  Indeed,  it  is  in  no 
sense  pa-  se  evidence,  except  in  the  cases  provided  for  by  statute ; 
and  therefore  it  cannot  be  received  in  evidence,  in  favor  of  the 
persons  concerned  in  making  it,  or  others,  except  by  force  of  a 
statute  making  it  so ;  though  it  may  be  used  against  any  persons 
to  whom  it  may  be  brought  home,  as  concerned  either  in  writing 
or  directing  what  should  be  contained  therein.^  (a) 

§  496.  Requisites  of  official  character.  To  entitle  a  book  to  the 
character  of  an  official  register,  it  is  not  necessary  that  it  be  re- 
quired by  an  express  statute  to  be  kept ;  nor  that  the  nature  of 
the  office  should  render  the  book  indispensable.  It  is  sufficient, 
that  it  be  directed  hy  the  proper  authority  to  he  kept,  and  that  it  be 
kept  according  to  such  directions.  Thus,  a  book  kept  by  the 
secretary  of  bankrupts  by  order  of  the  Lord  Chancellor,  was  held 
admissible  evidence  of  the  allowance  of  a  certificate  of  bank- 
ruptcy. ^  (5)  Terriers  seem  to  be  admitted  partly  on  the  same 
principle ;  as  well  as  upon  the  ground,  that  they  are  admissions 
by  persons  who  stood  in  privity  with  the  parties,  between  whom 
they  are  sought  to  be  used.^ 

§  497.  Historical  works.  Under  this  head  may  be  mentioned 
hooks  and  chronicles  of  puhlic  history,  as  partaking  in  some  degree 
of  the  nature  of  public  documents,  and  being  entitled  on  the  same 
principles  to  a  great  degree  of  credit.     Any  approved  public  and 

2  Stat.  1790,  c.  29,  §  5,  1  U.  S.  Stat,  at  large  (L.  &  B.'s  ed.),  133. 

3  Abbott  on  Shipping,  p.  468,  n.  (1)  (Story's  ed.)  ;  Orne  v.  Towiisend,  4  Mason, 
544  ;  Cloutman  v.  Tunison,  1  Sumner,  373  ;  United  States  v.  Gibert,  2  Suinner,  19, 
78  ;  The  Sociedade  Feliz,  1  W.  Rob.  303,  311. 

1  Henry  v.  Leigh,  3  Campb.  499,  501. 

2  By  the  ecclesiastical  canons,  an  inquiry  is  directed  to  be  made,  from  time  to  time, 
of  the  temporal  rights  of  the  clergyman  in  every  parish,  and  to  be  returned  into  the 
registry  of  the  bishop.  This  return  is  denominated  a  terrier.  Cowel,  Int.  verb.  Tcrrar, 
sciL  catalogus  terraricm,  Burrill,  Law  Diet.  verb.  Terrier.     See  also  ante,  §  485. 

(a)  The  Hercules,  1  Sprague,  534.  of  the  office,  it  is  his  duty  to  keep  that 

(b)  So,  the  records  of  the  alcalde  are  record,  whether  reiiuired  by  law  so  to  do 
evidence  of  the  acts  of  that  officer.  Kyburg  or  not ;  and  such  record  is  a  public  record, 
V.  Perkins,  6  Cal.  674.  Whenever  a  writ-  belonging  to  the  public,  and  not  to  the 
ten  record  of  the  transactions  of  a  public  officer.  Coleman  v.  Com.,  25  Gratt.  (Va.) 
officer  in  his  office  is  a  convenient  and  ap-  865. 

propriate  mode  of  discharging  the  duties 


CHAP.    IV.] 


PUBLIC    DOCUMENTS. 


645 


general  history,  therefore,  is  admissible  to  prove  ancient  facts  of 
a  public  nature,  and  the  general  usages  and  customs  of  the  coun- 
try. ^  (a)  But  in  regard  to  matters  not  of  a  public  and  general 
nature,  such  as  the  custom  of  a  particular  town,  a  descent,  the 
nature  of  a  particular  abbey,  the  boundaries  of  a  country,  and  the 
like,  they  are  not  admissible.^  (^>) 

§  498.  Certificates.  In  regard  to  certificates  given  by  persons  in 
official  station,  the  general  rule  is,  that  the  law  never  allows  a 
certificate  of  a  mere  matter  of  fact,  not  coupled  with  any  matter 
of  law,  to  be  admitted  as  evidence.^  (c)     If  the  person  was  bound 

1  Bull.  N".  P.  248,  249  ;  Morris  v.  Harmer,  7  Peters.  554  ;  Case  of  Warren  Hastings, 
referred  to  in  30  Howell's  St.  Tr.  492;  Phil.  &  Am.  on  Evid.  p.  606;  Neal  v.  Fry, 
cited  1  Salk.  281  ;  Lord  Bridgewater's  Case,  cited  Skin.  15.  The  statements  of  the 
chroniclers.  Stow  and  Sir  W.  Dugdale,  were  held  inadmissible  as  evidence  of  the  fact, 
that  a  person  took  his  seat  by  special  summons  to  Parliament  in  the  reign  of  Henry 
VIIL  The  Vaux  Peerage  Case,  5  Clark  &  Fin.  538.  In  Iowa,  books  of  history,  science, 
and  art,  and  published  nuips  and  charts,  made  by  persons  indili'erent  between  the  par- 
ties, are  presumptive  evidence  of  facts  of  genei'al  interest.      Code  of  1851,  §  2492. 

2  Stainer  v.  Droitwic'h,  1  Salk.  281  ;  s.  c.  Skin.  623  Piercy's  Case,  Tho.  Jones, 
164  ;  Evans  v.  Getting,  6  C.  &  P.  586,  and  n. 

3  Willes,  549,  550,  per  Willes,  Ld.  Ch.  J. 


(a)  On  the  same  ]irinciple  it  has  been 
held  that  a  map  of  the  towns  and  counties 
of  9.  State,  published  by  authority  of  the 
legislature  of  that  State,  is  evidence  of  the 
boundaries  of  the  towns  within  that  State. 
There  must  be  a  sufficient  evidence  of  the 
preliminary  fact  that  the  map  is  what  it 
purports  to  be.  Com.  i'.  King,  150  Mass. 
223.  See  also  Worcester  v.  Northborough, 
140  Mass.  397.  So,  if  a  material  fact  in 
the  case  is  the  location  of  a  boundary  line 
between  two  counties,  a  map  made  under 
authority  of  the  State  law  and  kept  by  the 
county  authorities  of  one  of  the  counties 
in  question,  being  duly  certified  to  by  the 
Secretary  of  State,  the  authenticated  docu- 
ment is  admissible  to  sliow  the  location  of 
the  county  line.  Polhill  c.  Brown,  84  Ga. 
342.  There  is  great  want  of  symmetry  in 
the  law,  in  regard  to  the  admission  of 
books  of  art  and  science  to  be  read  before 
the  court  and  jury,  in  order  to  establish 
the  laws  or  rules  of  a  particular  art  or  pro- 
fession. Redf.  on  Wills,  Part  II.  c.  iv. 
§  15,  pi.  17-19,  pp.  146,  147.  The  rule 
seems  well  settled,  that  such  books  are  not 
to  be  read  before  the  jury,  either  as  evi- 
dence or  argument.  Com.  v.  Wilson,  1 
Gray,  337;  Washburn  v.  Cuddihv,  8  Gray, 
430  ;  Ashworth  v.  Kittre.lge,  12  Cush.  193. 
But  courts  often  manifest  the  conscious- 
ness of  the  want  of  principle  upon  which 
the  rule  excluding  such  books  rests,  by 
quoting  the  very  same  books  in  banc  which 
they  were  deciding  were  rightfully  rejected 


at  the  trial,  and  thus  declaring  a  rule  of 
law,  pertaining  to  the  veterinary  art  or 
profession,  or  any  other  subject  upon  the 
authority  of  these  same  books,  which,  in 
the  same  breath,  they  declare  to  be  so  un- 
reliable as  not  to  be  evidence,  either  of  the 
laws  or  the  facts  involved  in  the  same  iden- 
tical point  upon  which  the  court  decided 
solely  upon  the  evidence  of  these  same 
books.  This  goes  upon  the  ground,  that 
reading,  or  hearing  read,  such  books  will 
be  entirely  safe  and  proper  while  sitting  in 
banc,  but  not  equally  so  to  the  same  judges 
while  sitting  with  a  jury  to  deternune, 
among  others,  the  very  same  questions 
then  before  the  full  court.  This  seems  to 
give  some  countenance  to  the  complaints 
of  the  learned  author  of  the  "  Jurisjjru- 
dence  of  Insanity,"  in  his  last  edition, 
upon  this  point  of  the  admissibility  of 
medical  books  to  prove  the  laws  of  the 
medical  profession.  Washburn  v.  Cud- 
dihy,   8  Gray,  430. 

(b)  Appleton's  Cyclopaedia  was  rejected 
as  evidence  that  a  certain  island  is  known 
amongst  merchants  and  insurers  as  a  guano 
island.  Whiton  v.  Alb.  City  Ins.  Co.,  109 
Mass.  24.  But,  the  Northampton  tables 
are  competent  evidence  on  the  probable 
duration  of  life.  Schell  v.  Plumb,  55 
N.  Y.  592.  A  local  history,  giving  the 
names  of  landholders,  cannot  be  put  in 
evidence  to  support  a  private  possession  of 
land.     Roe  v.  Strong,  107  N.  Y.  356. 

(c)  Downing  v.  Haxton,  21  Kan.  178 ; 


646  LAW   OF   EVIDENCE.  [PART   III. 

to  record  the  fact,  then  the  proper  evidence  is  a  copy  of  the  record, 
duly  authenticated.  But  as  to  matters  which  he  was  not  bound  to 
record,  his  certificate,  being  extra-official,  is  merely  the  statement 
of  a  private  person,  and  will  therefore  be  rejected.  ^  (b)  So,  where 
an  officer's  certificate  is  made  evidence  of  certain  facts,  he  cannot 
extend  its  effect  to  other  facts,  by  stating  those  also  in  the  certifi- 
cate ;  but  such  parts  of  the  certificate  will  be  suppressed.  ^  (f)  The 
same  rules  are  applied  to  an  officer's  return.* 

2  Oakes  v.  Hill,  14  Pick.  442,  448  ;  Wolfe  v.  Washlmru,  6  Coweii,  261  ;  Jackson  v. 
Miller,  Id.  751 ;  Governor  v.  McAlfee,  2  Dev.  15,  18 ;  United  States  v.  Biilord,  3 
Peters   12   29. 

3  .lolinsou  V.  Hooker,  1  Dall.  406,  407  ;  Governor  v.  Bell,  3  Murph.  331 ;  Governor 
V.  Jeffreys,  1  Hawks,  207  ;  Stewart  v.  Allison,  6  S.  &  R.  324,  329 ;  Newman  v.  Doe,  4 
How.  Miss.  522. 

*  Catorf.  Stokes,  1  M.  &  S.  599;  Arnold  v.  Tourtellot,  13  Pick.  172.  A  notary's 
certificate  that  no  note  of  a  certain  description  was  jirotested  by  him  is  inadmissible. 
Exchange,  &c.  Co.  of  New  Orleans  v.  Boyce,  3  Rob.  (La.)  307. 

Hopkins  v.  Millard,  9  R.  I.  37  ;  Stoner  v.  (c)  It  is  not  the  province  of  the  person 

Ellis,  6  Ind.  152 ;  Cross  v.  Mill  Co.,  17  making  the  certificate  to  determine  what 

111.  54.  is,  or  is  not,  material  to  a  question  pending 

(b)  Hanson    i'.     South    Scituate,    115  in  a  legal   tribunal.     He   may  certify  to 

Mass.    336 ;    Wayland   v.  Ware,   109   Id.  the  correctness  of  copies  of  official  papers 

248;  Childress  v.  Cutter,  16  Mo.  24.     A  in   his  office    so   as    to    make  them  evi- 

certificate  from  the  United  States  commis-  dence,    but   beyond    that    his    certificate 

sioner  of  patents,  that  diligent  search  has  has    no  more   effect   than   the  opinion  of 

been  made,  and  that  it  does  not  appear  any  other  person.     Wood  v.  Knapp,  100 

that  a  certain  patent  has  been  issued,  is  N.  Y.  114. 
not  evidence.     Bullock  v.  Wallingford,  55 
N.  H.  619  ;  ante,  §  485,  u. 


CHAP,    v.]  RECORDS   AND   JUDICIAL   WRITINGS.  647 


CHAPTER   V. 

RECORDS   AND   JUDICIAL   WRITINGS. 

§  499.  Records  and  judicial  writings.  The  next  class  of  written 
evidence  consists  of  Records  and  Judicial  Writings.  And  here, 
also,  as  in  the  case  of  Public  Documents,  we  shall  consider,  first, 
the  mode  of  proving  them;  and,  secondly,  their  admissibility  and 
effect. 

§  500.  Statutes.  The  case  of  statutes,  which  are  records,  has 
already  been  mentioned  under  the  head  of  legislative  acts,  to 
which  they  seem  more  properly  to  belong,  the  term  record  being 
generally  taken  in  the  more  restricted  sense,  with  reference  to 
judicial  tribunals.  It  will  only  be  observed,  in  this  place,  that, 
though  the  courts  will  take  notice  of  all  public  statutes  without 
proof,  yet  private  statutes  must  be  proved,  like  any  other  legisla- 
tive documents;  namely,  by  an  exemplification  under  the  great 
seal,  or  by  an  examined  copy,  or  by  a  copy  printed  by  authority. 

§  501.  Proof  of  records.  As  to  the  proofs  of  records,  this  is  done 
either  by  mere  production  of  the  records,  without  more,  or  by  a 
copy,  (a)  Copies  of  records  are,  (1)  exemplifications ;  (2)  copies 
made  by  an  authorized  officer;  (3)  sworn  copies.  Exemplifica- 
tions are  either,  first,  under  the  great  seal;  or,  secondly,  under 
the  seal  of  the  particular  court  where  the  record  remains.  ^  When 
a  record  is  the  gist  of  the  issue,  if  it  is  not  in  the  same  court,  it 
should  be  proved  by  an  exemplification.  By  the  course  of  the 
common  law,  where  an  exemplification  under  the  great  seal  is 
requisite,  the  record  may  be  removed  into  the  Court  of  Chancery, 
by  a  certiorari,  for  that  is  the  centre  of  all  the  courts,  and  there 
the  great  seal  is  kept.  But  in  the  United  States,  the  great  seal 
being  usually  if  not  always  kept  by  the  Secretary  of  State,  a 
different  course  prevails;  and  an  exemplified  copy,  under  the 
seal  of  the  court,  is  usually  admitted,  even  upon  an  issue  of  nul 

1  Bull.  N.  P.  227,  228.  An  exemplification  under  the  great  seal  is  said  to  be  of 
itsflf  a  record  of  the  greatest  validity.  1  Gilb.  Evid.  by  Loft,  p.  19  ;  Bull.  N.  P.  226. 
Nothing  but  a  record  can  be  exemplified  in  this  manner.     3  Inst.  173. 

(a)  Writing  done  with  a  pencil  is  not     which  must  become  public  record.s.     Me- 
adinissible  in  public  records,  nor  on  papers     serve  v.  Hicks,  24  N.  H.  295. 
drawn  to    be   used   iu  legal   proceedings, 


648  LAW   OF   EVIDENCE.  [PART   III. 

tiel  record,  as  sufficient  evidence. ^  When  the  record  is  not  the 
gist  of  the  issue,  the  last-mentioned  kind  of  exemplification  is 
always  sufficient  }3roof  of  the  record  at  common  law.3(5) 

§  502.  Same  subject.  The  record  itself  is  produced  only  when 
the  cause  is  in  the  same  court,  whoso  record  it  is ;  or,  when  it  is 
the  subject  of  proceedings  in  a  superior  court,  {d)  And  in  the 
latter  case,  although  it  may  by  the  common  law  be  obtained 
through  the  Court  of  Chancery,  yet  a  certiorari  may  also  be  is- 
sued from  a  superior  court  of  common  law,  to  an  inferior  tribunal, 
for  the  same  purpose,  whenever  the  tenor  only  of  the  record  will 
suffice ;  for  in  such  cases  nothing  is  returned  but  the  tenor,  that 
is,  a  literal  transcript  of  the  record,  under  the  seal  of  the  court; 
and  this  is  sufficient  to  countervail  the  plea  of  nul  tiel  record.^  (e) 
Where  the  record  is  put  in  issue  in  a  superior  court  of  concurrent 
jurisdiction  and  authority,  it  is  proved  by  an  exemplification  out 
of  chancery,  being  obtained  and  brought  thither  by  a  certiorari 
issued  out  of  chancery,  and  transmitted  thence  by  mittimus.^ 

§  503.  Same  subject.  In  proving  a  record  by  a  cop^/  under  seal, 
it  is  to  be  remembered,  that  the  courts  recognize  without  proof 
the  seal  of  State,  and  the  seals  of  the  superior  courts  of  justice, 
and  of  all  courts  established  by  public  statutes.^    And  by  parity 

2  Vail  V.  Smith,  4  Cowen,  71.  See  also  Pepoon  v.  Jenkins,  2  Johns.  Cas.  119  ; 
S.  C.  Golem  &  Cain.  Cas.  60.  In  some  of  the  States,  copies  of  record  of  the  courts  of 
the  same  State,  attested  by  the  clerk,  have,  either  by  imnieniorial  usac,'e,  or  by  early 
statutes,  been  received  as  sufficient  in  all  cases.  Vance  v.  Rcardon,  2  Nott  &  McCord, 
299  ;  Ladd  v.  Blunt,  4  Mass.  402.  Whether  the  seal  of  the  court  to  such  copies  is 
necessary  in  Massachusetts,  qaoere  ;  and  see  Commonwealth  v.  Phillips,  11  Pick.  30.   (c) 

8  1  Gilb.  Evid.  26. 

4  Woodcraft  v.  Kinaston,  2  Atk.  317,  318  ;  1  Tidd's  Pr.  398  ;  Butcher  &  Aid- 
worth's  Case,  Cro.  El.  821.  Where  a  domestic  record  is  put  in  issue  by  the  ])lea,  the 
question  is  tried  by  the  court,  notwithstanding  it  is  a  question  of  fact.  And  the  judg- 
ment of  a  court  of  record  of  a  sister  State  in  the  Union  is  considered,  for  this  purpose, 
as  a  domestic  judgment.  Hall  v.  Williams,  6  Pick.  237  ;  Carter  v.  Wilson,  1  Dev.  & 
Bat.  362.  But  if  it  is  a  foieign  record,  the  issue  is  tried  by  the  jurv.  State  v.  Isham, 
3  Hawks,  185  ;  Adams  v.  Betz,  1  Watts,  425  ;  Baldwin  v.  Hale,  17  Johns.  272.  The 
reason  is,  that  in  the  former  case  the  judges  can  themselves  have  an  inspection  of  the 
very  record.  But  in  the  latter,  it  can  only  be  proved  by  a  cop)-,  the  veracity  of  which 
is  a  mere  fact,  within  the  province  of  the  jury.  And  see  Collins  v.  Mathews,  5  East, 
473.  In  New  York,  the  question  of  fact,  in  every  case,  is  now,  bv  statute,  referred  to 
the  jury.     Trotter  v.  Mills,  6  Wend.  512  ;  2  Rev.  Stat.  507,  §  4  (3d  ed.). 

5  1  Tidd's  Pr.  398. 

6  Olive  V.  Guin,  2  Sid.  145,  146,  per  Witherington,   C.  B.  ;  1  Gilb.  Evid.   19  ;  12 

(6)  Tillotson  v.  Warner,  3  Gray,  574,  would  be  admissible.     Folsom  v.  Cressev, 

577.  '  73  Me.  270;  State  v.  Bartlett,  47  Id.  396  ; 

(c)  In  Com.  V.  Downing,  4  Gray,  29,  Gray  v.  Davis,  27  Conn.  "447  ;  Britton  v. 
30,  it  is  decided  that  a  copy  of  a  record  of  State,  54  Ind.  535. 

a  justice  of  the  peace  need  not  bear  a  seal ;  (e)  So,  a  judgment  of  a  circuit  court 
the  court  saying,  "  it  need  not  bear  a  seal,  of  the  United  States  is  considered  a  do- 
nor is  it  the  practice  to  affix  one."  mestic  judgment.     Williams   v.    WilLes, 

(d)  But  the  original  record  is  compe-  14  Pa.  St.  228. 
tent  evidence   in  any  case  where  a  copy 


CHAP,    v.]  RECORDS    AND    JUDICIAL   WRITINGS.  619 

of  reason  it  would  seem  that  no  extraneous  i)roof  ought  to  bo  re- 
quired of  the  seal  of  any  department  of  State,  or  public  ofhce 
established  by  law,  and  re(iuired  or  known  to  have  a  seal.-  And 
here  it  may  be  observed,  that  copies  of  records  and  judicial  pro- 
ceedings, under  seal,  are  deemed  of  higher  credit  than  sworn  copies, 
as  having  passed  under  a  more  exact  critical  examination.^  (a) 

§  50-1.  Records  of  the  courts  of  the  several  States.  In  regard  to 
the  several  tStates  composing  the  United  Statea,  it  has  already  been 
seen,  that  though  they  are  sovereign  and  independent,  in  all 
things  not  surrendered  to  the  national  government  by  the  con- 
stitution, and,  therefore,  on  general  principles,  are  liable  to  be 
treated  by  each  other  in  all  other  respects  as  foreign  States,  yet 
their  mutual  relations  are  rather  those  of  domestic  independence, 
than  of  foreign  alienation.*  It  is  accordingly  provided  in  the 
constitution,  that  "full  faith  and  credit  shall  be  given,  in  each 
State,  to  the  public  act,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  mny,  by  general  laws,  prescribe 
the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof."  ^  {h)  Under  this  provision  it  has 
been  enacted,  that  "  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted,  in  any  other 
court  within  the  United  States,  by  the  attestation  of  the  clerk 
and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together  with 
a  certificate  of  the  judge,  chief  justice,  or  presiding  magistrate, 
as  the  case  may  be,  that  the  said  attestation  is  in  due  form.  And 
the  said  records  and  judicial  proceedings,  authenticated  as  afore- 
said, shall  have  such  faith  and  credit  given  to  them,  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage  in 

Vin.  Abr.  132,  133,  tit.  Evid.  A,  b,  69  ;  Delafield  v.  Hand,  3  Johns.  310,  31-1  ;  Den  v. 
Vreelandt,  2  Halst.  355.  Tlie  seals  of  counties  palatine  and  of  the  ecclesiastical  courts 
are  judicially  known,  on  the  same  general  principle.  See  also,  as  to  probate  courts, 
Chase  V.  Hathaway,  14  Mass.  222  ;  Judge,  &c.  v.  Briggs,  3  N.  H.  309. 

2  Rupra,  %  6.  3  .3  phil.  Evid.  130  ;  Bull.  N.  P.  227. 

1  Mills  V.  Duryee,  7  Cranch,  481  ;  Hampton  v.  McConnell,  3  Wheat.  234,  supra, 
§489. 

5  Const.  U.  S.  art.  iv.  §  1. 

{a)  An  abstract  of  a  record  or  an  ex-  State  may  deem  expedient :  State  of  Ohio 

tract  is  not  admissible.     The  copy  should  v.    Hinchman,    3  Casey,  485.     Other  evi- 

contain   the  whole  record.     Gest  v.   New  dence,  good  according  to  established  prin- 

Orleans,  &c.  R.  R.  Co.,  30  La.  An.  Pt.  I.  ciples  independent  of  the  Act  of  Congre.ss, 

28  ;  Anderson  v.  Nagle,  12  \V.  Va.  98.  may  be  admitted.     Kean  v.  Rice,  12  S.  & 

(6)   And  in  a  recent  case  in  Pennsyl-  R.  203.     As  the  Act  of  Congress  has  no 

vania,  Otto  v.   Trump,  115  Pa.   St.   430,  negative  words,  even  the  records  of  a  sister 

the  court  says,  "  But  let  this  be  as  it  may,  State  may  be  established  l>y  any  competent 

the  Act  of  Congre.ss  of  1790  only  prescribes  proof  known  to  the  common  law.    Baker 

a  general   mode  of  authentication   of  re-  v.  Field,  2  Yeates,  532.     See,  also,  Sny- 

cords  ;  it  does  not  exclude  any  other  evi-  der  v.  Wise,  10  Penn.  157." 
dence   which   the   courts  of  a    particular 


650  LAW    OP    EVIDENCE.  [PART    III. 

the  courts  of  the  State  from  whence  said  records  are  or  shall  be 
taken. "  **     By  a  subsequent  act,  these  provisions  are  extended  to 
the  courts  of  all   Territories  subject  to  the  jurisdiction  of  the 
I  United  States.^ 

§  505.  Proof  by  attested  copy  not  exclusive.  It  seems  to  be  gen- 
erally agreed,  that  this  method  of  authentication,  as  in  the  case  of 
public  documents  before  mentioned,  is  not  exclusive  of  any  other 
which  the  States  may  think  proper  to  adopt.  ^  (a)  It  has  also  been 
held,  that  these  acts  of  Congress  do  not  extend  to  judgments  in 
criminal  cases,  so  as  to  render  a  witness  incompetent  in  one 
State,  who  has  been  convicted  of  an  infamous  crime  in  another.'-^ 
The  judicial  proceedings  referred  to  in  these  acts  are  also  gener- 
ally understood  to  be  the  proceedings  of  courts  of  general  jurisdic- 
tion, and  not  those  which  are  merely  of  municipal  authority ;  for 
it  is  required  that  the  copy  of  the  record  shall  be  certified  by  the 
clerk  of  the  court,  and  that  there  shall  also  be  a  certificate  of  the 
judge,  chief  justice,  or  presiding  magistrate,  that  the  attestation 
of  the  clerk  is  in  due  form.  This,  it  is  said,  is  founded  on  the 
supposition  that  the  court,  whose  proceedings  are  to  be  thus  au- 
thenticated, is  so  constituted  as  to  admit  of  such  officers;  the  law 
having  wisely  left  the  records  of  magistrates,  who  may  be  vested 
with  limited  judicial  authority,  varying  in  its  objects  and  extent 
in  every  State,  to  be  governed  by  the  laws  of  the  State  into  which 
they  may  be  introduced  for  the  purpose  of  being  carried  into 
effect.^  Accordingly  it  has  been  held,  that  the  judgments  oi  jus- 
tices of  the  peace  are  not  within  the  meaning  of  these  constitu- 
tional and  statutory  provisions.  *  (b)    But  the  proceedings  of  courts 


G  Stat.  U.  S.  May  26,  1790,  2  LL.  U.  S.  c.  38  [11],  p.  102  (Bioren's  ed.)  [1  U.  S. 
Stat,  at  Large  (L.  &"B.'s  ed.),  122.] 

7  Stat.  U.  S.  March  27,  1804,  3  LL.  U.  S.  c.  409  [56],  p.  621  (Bioren's  ed.)  [2 
U   S.  Stat,  at  Large  (L.  &  B.'s  ed.)  298.] 

1  Kean  v.  Kice,  12  S.  &  R.  203,  208  ;  State  v.  Stade,  1  D.  Chipni.  303  ;  Ravnham 
f.  Canton,  3  Pick.  293  ;  Biddis  v.  James,  6  Binn.  321  ;  Ex  parte  Povall,  3  Leigh,  816  ; 
Pepoon  V.  Jenkins,  2  Johns.  Cas.  119  ;  EUmore  v.  Mills,  1  Ha3'w.  359  ;  supra,  §  489 ; 
Kev.  Stat.  Mass.  c.  94,  §§  57,  59-61. 

^  Commonwealth  v.  Green,  17  Mass.  515  ;  svpra,  §  376,  and  cases  there  cited. 

3  Warren  v.  Flagg,  2  Pick.  450,  per  Parker,  C.  J. 

*  Warren  v.  Flagg,  2  Pick.  448  ;  Robinson  i'  Prescott,  4  N.  H.  450  ;  Mahurin  v. 
Bickford,  6  N.  H.  567  ;  Silver  Lake  Bank  v  Harding,  5  Ohio,  545  ;  Thomas  v.  Robin- 
son, 3  Wend.  267.  In  Connecticut  and  Vermont,  it  is  held,  that  if  the  justice 
is  bound  by  law  to  keep  a  record  of  his  proceedings,  they  are  within  the  meaning  of 
the  act  of  Congress.  Bissell  v.  Edwards,  5  Day,  363  :  Starkweather  v.  Loomis,  2  Vt. 
573 ;  Blodget  v.  Jordan,  6  Vt.  580.     See  ace.  Scott  v.  Cleveland,  3  Monroe,  62. 


{a)  Kingman  v.  Cowles,  103  Mass.  283.     should  be  certified  according  to  the  act  of 
(6)  Bryan   v.    Farnswortli,     19    Minn.     Congress.     Brown  v.  Edson,  23  Vt.  435. 
239.     But  a  copy  of  the  registry  of  a  deed 


CHAP,    v.]  RECORDS   AND    JUDICIAL   WRITINGS.  651 

of  chancery,  and  of  probate,  as  well  as  of  the  courts  of  common 
law,  may  be  proved  in  the  manner  directed  by  the  statute.^  (d!) 

§  506,  Mode  of  attestation.  Under  these  provisions  it  has  been 
held,  that  the  attestation  of  the  cojrij  must  be  according  to  the  form 
used  in  the  State  from  which  the  record  comes ;  and  that  it  must 
be  certified  to  be  so,  by  the  presiding  judge  of  the  same  court,  the 
certificate  of  the  clerk  to  that  effect  being  insufficient.  ^  (a)  Nor 
will  it  suffice  for  the  judge  simply  to  certify  that  the  person  who 
attests  the  copy  is  the  clerk  of  the  court,  and  that  the  signature  is 
in  his  handwriting.-^  The  seal  of  the  court  must  be  ainiexcd  to 
the  record  with  the  certificate  of  the  clerk,  and  not  to  the  certifi- 
cate of  the  judge.  3  If  the  court,  whose  record  is  certified,  has  no 
seal,  this  fact  should  appear,  either  in  the  certificate  of  the  clerk, 
or  in  that  of  the  judge. *  (h)  And  if  the  court  itself  is  extinct,  but 
its  records  and  jurisdiction  have  been  transferred  by  law  to  an- 
other court,  it  seems  that  the  clerk  and  presiding  judge  of  the 
latter  tribunal  are  competent  to  make  the  requisite  attestations.^  (c) 
If  the  copy  produced  purports  to  be  a  record,  and  not  a  mere  tran- 
script of  minutes  from  the  docket,  and  the  clerk  certifies  "that 
the  foregoing  is  truly  taken  from  the  record  of  the  proceedings  "  of 
the  court,  and  this  attestation  is  certified  to  be  in  due  form  of  law, 
by  the  presiding  judge,  it  will  hi  presumed  that  the  paper  is  a 
full  copy  ot  the  entire  record,  and  will  be  deemed  sufficient.^  It 
has  also  been  held,  that  it  must  appear  from  the  judge's  certifi- 
cate, that  at  the  time  of*certifying  he  is  the  presiding  judge  of  that 
court ;  a  certificate  that  he  is  "  the  judge  that  presided''  at  the  time 
of  the  trial  or,  that  he  is  "  the  senior  judge  of  the  courts  of  law  " 

s  Scott  V.  Blanchard,  8  Martin,  N.  s.  303  ;  Hunt  v.  Lyle,  8  Yerg.  142 ;  Barbour  v. 
Watts,  2  A.  K.  Marsh.  290,  293;  Balfour  v.  Chew,  5  Martin,  N.  s.  517;  Johnson 
V.  Rannels,  6  Martin,  N.  s.  621  ;  Hippie  v.  Ripple,  1  Rawle,  386  ;  Craig  v.  Brown,  1 
Peters,  C.  C.  352. 

1  Drumniond  v.  Magruder,  9  Cranch,  122  ;  Craig  y.  Brown,  1  Pet.  0.  C.  352.  The 
judge's  certificate  is  tlie  only  competent  evidence  of  this  fact.  Smith  v.  Blagge,  1 
Johns.  Cas.  238.     And  it  is  conclusive.     Ferguson  v.  Harwood,  7  Cranch,  408. 

2  Craig  V.  Brown,  1  Pet.  C.  C.  352. 

8  Turner  V.  Waddington.  3  Wash  126.  And  being  thus  affixed,  and  certified  by 
the  clerk,  it  proves  itself.     Dunlaj)  v.  Waldo,  6  N.  H.  450. 

*  Craig  t;.  Brown,  1  Pet.  C.  C.  352  ;  Kirkland  i'.  Smith,  2  Martin,  N.  s.  497. 

fi  Thomas  v.  Tanner,  6  Monroe,  52. 

6  Ferguson  v.  Harwood,  7  Cranch,  408  ;  Edmiston  v.  Schwartz,  13  S.  &  R.  135  ; 
Goodman  v.  James,  2  Rob.  (La.)  297. 

{d)  In  Cox  V.  Jones,  52  Ga.  438,  it  was  (a)  Van    Storch  v.  Griffin.   71   Pa.   St. 

held  that  if  the  certificate  stated  that  there  240.     Cf.  Burnell  v.  Weld,  76  N.  Y.  103  ; 

was   no  clerk  of  the  Probate  Court,    but  Shown  v.  Bair,  11  Ired.  296. 

that  the  duties  of  the  clerk  were  discharged  (//)  Cf.  Simons  ?'.  Cook,   29  Iowa,  324. 

by  the  judge,  this  was  a  sufficient  attes-  (c)  Darrah  v.  Watsou,  36  Iowa,  116. 
tation,  being  correct  in  all  the  other  par- 
ticulars. 


652  LAW   OF   EVIDENCE.  [PART   III. 

in  the  State,  being  deemed  insufficient. ^  (J)  The  clerk  also  who 
certifies  the  record  must  be  the  clerk  himself  of  the  same  court, 
or  of  its  successor,  as  above  mentioned;  the  certificate  of  his 
under-clerk,  in  his  absence,  or  of  the  clerk  of  any  other  tribunal, 
office,  or  body,  being  held  incompetent  for  this  purpose.^  (e) 

§  507.  Office  copies.  An  office  copy  of  a  record  is  a  copy  au- 
thenticated by  an  officer  entrusted  for  that  purpose;  and  it  is 
admitted  in  evidence  upon  the  credit  of  the  officer  without  proof 
that  it  has  been  actually  examined.^  The  rule  on  this  subject  is, 
that  an  office  copy,  in  the  same  court,  and  in  the  same  cause,  is 
equivalent  to  the  record;  but  in  another  court,  or  in  another 
cause  in  the  same  court,  the  copy  must  be  proved.  ^  But  the 
latter  part  of  this  rule  is  applied  only  to  copies  made  out  by 
an  officer  having  no  other  authority  to  make  them,  than  the  mere 
order  of  the  particular  court,  made  for  the  convenience  of  suitors ; 
for  if  it  is  made  his  duty  by  law  to  furnish  copies,  they  are  ad- 
mitted in  all  courts  under  the  same  jurisdiction.  And  we  have 
already  seen,  that  in  the  United  States  an  officer  having  the  legal 
custody  of  public  records  is,  ex  officio,  competent  to  certify  copies 
of  their  contents.^  (a) 

§  508.  Examined  copies.  The  proof  of  records,  by  an  examined 
copy,  is  by  producing  a  witness  who  has  compared  the  copy  with 

T  Stephenson  v.  Bannister,  3  Bibb,  369 ;  Kirkland  v.  Smith,  2  Martin,  N.  s.  497. 

8  Attestation  by  an  under-clerk  is  insufficient.  Samson  v.  Overton,  4  Bibb,  409. 
So,  by  late  clerk  not  now  in  office.  Donohoo  ■;;.  Brannon,  1  Overton,  328.  So,  by 
clerk  of  the  council,  in  Maryland.  Schnertzell  ?•.  Young,  3  H.  &  McHen.  502.  See 
further,  Conkling's  Practice,  p.  256  ;   1  Paine  &  Duer's  Practice,  480,  481. 

i  2  Phil.  Evid.  131  ;  Bull.  N.  P.  229. 

2  Denn  v.  Fulford,  2  Burr.  1179,  per  Ld.  Mansfield.  Whether,  upon  trial  at  law 
of  an  issue  out  of  chancery,  office  copies  of  depositions  in  the  same  cause  in  chancery 
are  admissible,  has  been  doubted  ;  but  the  better  opinion  is,  that  they  are  admissible. 
Hightield  v.  Peake,  1  M.  &  Malk.  109  (1827)  ;  Studdy  v.  Sanders,  2  D.  &  Ry.  347  ; 
He7inell  V.  Lyon,  1  B.  &  Aid.  182  ;  cujiira,  Burnand  v.  Nerot,  1  C.  &  P.  578  (1824 )._ 

3  Supra,  §  485.  But  his  certificate  of  the  substance  or  purport  of  the  record  is  in- 
admissible.    McGuire  v.  Say  ward,  9  Shepl.  230. 

(d)  Settle  V.  Alison,  8  Ga.  201.    Where  fluous  certificate,  if  it  is  duly  accredited 

the   certificate   itself    showed   that   there  by  the  other  certificates  required  by  law. 

were  other  judges  of   the  court,  and  did  Young?'.  Chandler,  13  B.  Mon.  252.    The 

not  show  that  the  person  signing  as  judge  certificate  of  the  deputy-clerk  is  not  sufE- 

was  the  chief  justice,  or  presiding  magis-  cient,   even  when  the  judge  certifies  that 

trate,  the  certificate  was  held  inadmissible,  it  is  in  due  form.     Morris  v.  Pathin,  24 

Van  Storch  v.  Griffin,    71    Pa.    St.    240.  N.  Y.  394. 

But  where  the  certificate  did  not  show  («)  Whenever  the  original  is  evidence 
whether  he  was  the  presiding  magistrate,  in  itself  as  a  public  record  or  document, 
but  the  public  laws  of  the  State  showed  its  contents  may  be  proved  by  an  examined 
that  there  was  only  one  magistrate  of  that  copy.  Reed  v.  Lamb,  6  Jur.  N.  s.  828. 
court,  the  certificate  was  held  sufficient.  The  same  is  true  of  the  registry  of  mar- 
Bennett  I'.  Bennett,  Deadj-,  300.  riages  kept  in  duplicate  by  the  East  India 

{e)  The   authentication  of  the    record  Company  in  London,  the  marriages  being 

of  a  judgment  rendered  in  another  State  is  solemnized  in  India.     Ratcliff  v.  Ratcliff, 

not  impaired  by  the  addition  of  a  super-  5  Jur.  N.  s.  714. 


CHAP.    V]  RECORDS    AND    JUDICIAL    WRITINGS.  653 

the  original,  or  with  what  the  officer  of  the  court  or  any  other 
person  read  as  the  contents  of  tlic  record.  It  is  not  necessary  for 
the  persons  examining  to  exchange  papers,  and  read  them  alter- 
nately both  ways.  ^  But  it  should  appear  that  the  record,  from 
which  the  copy  was  taken,  was  found  in  the  proper  place  of  de- 
posit, or  in  the  hands  of  the  officer,  in  whose  custody  the  records 
of  the  court  are  kept.  And  this  cannot  he  shown  by  any  light, 
reflected  from  the  record  itself,  which  may  have  been  improperly 
placed  where  it  was  found.  Nothing  can  be  borrowed  ex  visceribus 
judicii^  until  the  original  is  proved  to  have  come  from  the  proper 
court.2(a)  And  the  record  itself  must  have  been  finally  com- 
pleted before  the  copy  is  admissible  in  evidence.  The  minutes 
from  which  the  judgment  is  made  up,  and  even  a  judgment  in 
paper,  signed  by  the  master,  are  not  proper  evidence  of  the 
record.^ (5) 

§  509.  Lost  records.  If  the  record  is  lost,  and  is  ancient,  its 
existence  and  contents  may  sometimes  be  presumed;*  but  whether 
it  be  ancient  or  recent,  after  proof  of  the  loss,  its  contents  may 
be  proved,  like  any  other  document,  by  any  secondary  evidence, 
where  the  case  does  not,  from  its  nature,  disclose  the  existence 
of  other  and  better  evidence,  ^(c) 

1  Reid  V.  Margison,  1  Campb.  469  ;  Gyles  v.  Hill,  Id.  471,  n. ,  Fyson  v.  Kemp,  6 
C.  &  P.  71  ;  Rolf  V.  Dart,  2  Taunt.  52  ;  Hill  v.  Packard,  5  Wend.  387  ;  Lynde  v. 
Judd,  3  Day,  499. 

2  Adamthwaite  v.  Synge,  1  Stark,  183. 

8  Bull.  N.  P.  228  ;  Rex  v.  Smith,  8  B.  &  C.  341  ;  Godefroy  v.  Jay,  3  C.  &  P.  192  ; 
Lee  V.  Meecock,  5  Esp.  177  ;  Rex  v.  Bellamy,  Ry.  &  M.  171  ;  Porter  iJ.  Cooper,  6  C. 
&  P.  354.  But  the  minutes  of  a  judgment  in  the  House  of  Lords  are  the  judgment  it- 
self, which  it  is  not  the  practice  to  draw  uj)  in  form.     Jones  v.  Randall,  Cowp.  17. 

*  Bull.  N.  P.  228  ;  Green  ;;.  Proude,  1  Mod.  117,  per  Ld.  Hale. 

^  See  supra,  §  84,  n.  (2),  and  cases  there  cited.  See  also  Adams  v.  Betz,  1  AVatts, 
425,  428  ;  Stockbridge  v.  West  Stockbridge,  12  Mass.  400  ;  Donaldson  v.  Winter,  1 
Miller,  137;  Newcomb  v.  Drummond,  4  Leigh,  57;  Bull.  N.  P.  228;  Knight  v. 
Dauler,  Hard.  323;  Anon.,  1  Salk.  284,  cited  per  Holt,  C.  J.;  Gore  v.  EI  well,  9 
Shepl.  442. 

(«)  Woods  V.  Banks,  14  N.  H.  101.  court  the  original  record.     Willard  v.  Har- 

(b)  The  clerk's  docket  is  the  record  vey,  4  Foster,  344. 
until  the  record  is  fully  extended,  and  the  (c)  A  paper  certified  by  a  justice  of  the 
same  rules  of  presumed  verity  apply  to  it  peace  to  be  a  copy  of  a  record  of  a  case  be- 
as  to  the  record.  Every  entry  is  a  state-  fore  hiin  is  admissible  in  evidence  of  such 
ment  of  the  act  of  the  court,  and  must  be  proceedings,  althougli  made  by  him  after 
presumed  to  be  made  by  its  direction,  the  loss  of  the  original,  and  pending  a 
either  b}'^  a  particular  order  for  that  entry,  trial  in  which  he  had  testified  to  its  Con- 
or by  a  general  order,  or  by  a  general  and  tents.  Tillotson  v.  Warner,  3  Gray,  574, 
recognized  usage  and  practice,  which  pre-  577.  The  contents  of  a  complaint  and 
supposes  such  an  order.  Read  v.  Sutton,  warrant,  in  a  criminal  case,  lost  after  be- 
2  Cush.  115,  123  ;  Sayles  v.  Briggs,  4  Met.  ing  returned  into  court,  may  be  proved  by 
421,  424  ;  Tillotson  v.  Warner,  3  Gray,  secondary  evidence  ;  and  witnesses  to 
574,  577.  Where  it  is  the  practice  of  the  prove  its  contents  may  state  the  substance 
clerks  to  extend  the  judgment  of  the  courts  thereof  without  giving  the  exact  words, 
from  the  minutes  and  papers  on  file,  the  Com.  v.  Roark,  8  Cush.  210,  2]  2.  See 
record  thus   extended   is  deemed  by  the  also  Simpson  v.  Norton,  45  Me.  281  ;  Hall 


654  LAW   OF   EVIDENCE.  [PART   III. 

§  510.  Verdicts.  A  verdict  is  sometimes  admissible  in  evi- 
dence, to  prove  the  finding  of  some  matter  of  reputation,  or  cus- 
tom, or  particular  right.  But  here,  though  it  is  the  verdict,  and 
not  the  judgment,  which  is  the  material  thing  to  be  shown,  yet 
the  rule  is,  that,  where  the  verdict  was  returned  to  a  court  having 
power  to  set  it  aside,  the  verdict  is  not  admissible,  without  produc- 
ing a  copy  of  the  judgment  rendered  upon  it ;  for  it  may  be  that 
the  judgment  was  arrested,  or  that  a  new  trial  was  granted.  But 
this  rule  does  not  hold  in  the  case  of  a  verdict  upon  an  issue  out 
of  chancery,  because  it  is  not  usual  to  enter  up  judgment  in  such 
cases. ^  Neither  does  it  apply  where  the  object  of  the  evidence  is 
merely  to  establish  the  fact  that  the  verdict  was  given,  without 
regard  to  the  facts  found  by  the  jury,  or  to  the  subsequent  proceed- 
ings in  the  cause.  ^  And  where,  after  verdict  in  ejectment,  the 
defendant  paid  the  plaintiff's  costs,  and  yielded  up  the  possession 
to  him,  the  proof  of  these  facts,  and  of  the  verdict,  has  been  held 
sufficient  to  satisfy  the  rule,  without  proof  of  a  judgment.^ 

§  511.  Decrees  in  chancery.  A  decree  in  chancery  may  be  proved 
by  an  exemplification,  or  by  a  sworn  copy,  or  by  a  decretal  order 
in  paper,  with  proof  of  the  bill  and  answer.  ^  And  if  the  bill  and 
answer  are  recited  in  the  order,  that  has  been  held  sufficient,  with- 
out other  proof  of  them.^  But  though  a  former  decree  be  recited 
in  a  subsequent  decree,  this  recital  is  not  proper  evidence  of  the 
former. 2  The  general  rule  is,  that,  where  a  party  intends  to  avail 
himself  of  a  decree,  as  an  adjudication  upon  the  subject-matter, 
and  not  merely  to  prove  collaterally  that  the  decree  was  made, 
he  must  show  the  proceedings  upon  which  the  decree  was  founded. 

6  Bull.  N.  P.  234  ;  Pitton  v.  Walter,  1  Stra.  162  ;  Fisher  v.  Kitchingman,  Willes, 
367  ;  Ayrey  v.  Davenport,  2  N.  R.  474  ;  Donaldson  v.  Jude,  2  Bibb,  60.  Hence  it  is 
not  necessary,  in  New  York,  to  produce  a  copy  of  the  judgment  upon  a  verdict  given 
in  a  justice's  court,  the  justice  not  having  power  to  set  it  aside.  Felter  v.  Mulliner,  2 
Johns.  181.  In  North  Carolina,  owing  to  an  early  looseness  of  practice  in  making  up 
the  record,  a  copy  of  the  verdict  is  received  without  proof  of  the  judgment ;  the  latter 
being  presumed,  until  the  contrary  is  shown.  Deloach  v.  Worke,  3  Hawks,  36.  See 
also  Evans  v.  Thomas,  2  Stra.  833  ;  Dayrell  v.  Bridge,  Id.  1264  ;  Thurston  v.  Slatford, 
1  Salk.  284.  If  the  docket  is  lost  before  the  recoi-d  is  made  up,  it  will  be  considered 
as  a  loss  of  the  record.     Pruden  v.  Alden,  23  Pick.  184. 

'  Barlow  v.  Dupuy,  1  Martin,  N.  s.  442. 

8  Shaeffer  v.  Kreitzer,  6  Binn.  430. 

1  Trowel  v.  Castle,  1  Keb.  21,  confirmed  by  Bailey,  B.,  in  Blower  r.  Hollis,  1  Cromp. 
&  Mees.  396  ;  4  Com.  Dig.  97,  tit.  Evidence,  C,  1 ;  Gresley  on  Evid.  p.  109. 

2  Bull.  N.  P.  244  ;  1  Keb.  21. 

^  Winans  v.  Dunham,  5  Wend.  47  ;  Wilson  v.  Conine,  2  Johns.  280. 

V.  Manchester,  40  N".   H.  410.     So  may  tion  of  the  jurisdiction  of  the  court.    Eaton 

the  contents  of  a  lost  deposition.     Burton  v.   Hall,   5  Met.   (Mass.)  287;    Petrie  v. 

V.  Driggs,  20  Wall.  (U.  S.)  125.     So  may  Ben  field,  3  T.  R.  476.     See  also  ante,  §  86, 

the  contents  of  a  lost  rule  of  reference,  or  and  joos<,  §  558,  n. 
any  other  paper,  though  it  be  the  founda- 


CHAP,    v.]  RECORDS    AND   JUDICIAL    WRITINGS.  656 

"The  whole  record,"  says  Chief  Baron  Comyns,  "which  concerns 
the  matter  in  question,  ought  to  be  produced. "  *  But  where  the 
decree  is  offered  merely  for  proof  of  the  res  ipsa,  namely,  the  fact 
of  the  decree,  here,  as  in  the  case  of  verdicts,  no  proof  of  any 
other  proceeding  is  required.^  The  same  rules  apply  to  sen- 
tences in  the  admiralty  and  to  judgments  in  courts  baron,  and 
other  inferior  courts.^ 

§  512.  Answers  in  chancery.  The  proof  of  an  answer  in  chan- 
cery may,  in  civil  cases,  be  made  by  an  examined  copy."  Regu- 
larly, the  answer  cannot  be  given  in  evidence  without  proof  of  the 
bill  also,  if  it  can  be  had.^  But  in  general,  proof  of  the  decree- 
is  not  necessary,  if  the  answer  is  to  be  used  merely  as  the  party's 
admission  under  oath,  or  for  the  purpose  of  contradicting  him  as 
a  witness,  or  to  charge  him  upon  an  indictment  for  perjury.  The 
absence  of  the  bill,  in  such  cases,  goes  only  to  the  effect  and  value 
of  the  evidence,  and  not  to  its  admissibility.^  In  an  indictment 
for  perjury  in  an  answer,  it  is  considered  necessary  to  produce  the 
original  answer,  together  with  proof  of  the  administration  of  the 
oath ;  but  of  this  fact,  as  well  as  of  the  place  where  it  was  sworn, 
the  certificate  of  the  master,  before  whom  it  was  sworn,  his  sig- 
nature also  being  proved,  is  sufficient  prima  facie  evidence.  ^^  The 
original  must  also  be  produced  on  a  trial  for  forgery.  In  civil 
cases,  it  will  be  presumed  that  the  answer  was  made  upon  oath." 
But  whether  the  answer  be  proved  by  production  of  the  original, 
or  by  a  copy,  and  in  whatever  case,  some  proof  of  the  identity  of 
the  party  will  be  requisite.  This  may  be  by  proof  of  his  hand- 
writing; which  was  the  reason  of  the  order  in  chancery  requiring 
all  defendants  to  sign  their  answers;  or  it  may  be  by  any  other 
competent  evidence.  ^ 

*  4  Com.  Dig.  tit.  Evidence,  A,  4  ;  2  Phil.  Evid.  138,  139.  The  rule  equally  applies 
to  decrees  of  the  ecclesiastical  courts.  Leake  v.  Marquis  of  Westmeath,  2  M.  &  Rob. 
394. 

^  Jones  V.  Randall,  (^owp.  17. 

6  4  Com.  Dig.  97,  98,  tit.  Evidence,  C.  1. 

''  Ewer  V.  Ambrose,  4  B.  &  C.  25. 

8  1  Gilb.  Evid.  55,  56  ;  Gresley  on  Evid.  pp.  108,  109. 

9  Ewer  V.  Ambrose,  4  B.  &  C.  25  ;  Rowe  v.  Brenton,  8  B.  &  C.  737,  765  ;  Lady 
Dartmouth  v.  Roberts,  16  East,  334,  339,  340. 

10  Bull.  N.  P.  238,  239  ;  Rex  v.  Morris,  2  Burr.  1189  ;  Rex  v.  Benson,  2  Campb. 
508  ;  Rex  v.  Spencer,  ^y  ^  ^I-  ^"^ ■  T^ej'"'at  is  not  conclusive  as  to  the  place.  Rex 
V.  Emden,  9  East,  437.  The  same  strictness  seems  to  be  required  in  an  action  on  the 
case  for  a  malicious  criminal  prosecution.  16  East,  340  ;  2  Phil.  Evid.  140.  Sed 
qucere. 

11  Bull.  N.  P.  238. 

12  Rex  V.  Morris,  5  Burr.  1189  ;  Rex  v.  Benson,  2  Campb.  508.  It  seems  that  slight 
evidence  of  identity  will  be  deemed  prima  facie  sufficient.  In  Hennell  v.  Lyon,  1  B. 
&  Aid.  182,  coincidence  of  name,  and  character  as  administrator,  was  held  sufficient ; 
and  Lord  Ellenborough  thought,  that  coincidence  of  name  alone  ought  to  be  enough  to 


656 


LAW    OP    EVIDENCE. 


[part  hi. 


§  513.  Judgments  of  inferior  courts.  The  judgments  of  inferior 
courts  arc  usually  proved  by  produeing  from  the  proper  custody 
the  book  containing  the  proceedings.  And  as  the  proceedings  in 
these  courts  are  not  usually  made  up  in  form,  the  minutes,  or 
examined  copies  of  them,  will  be  admitted,  if  they  are  perfect  .^  (a) 
If  they  are  not  entered  in  books,  they  may  be  proved  by  the  officer 
of  the  court,  or  by  any  other  competent  person.  2  In  either  case, 
resort  will  be  had  to  the  best  evidence,  to  establish  the  tenor  of 
the  proceedings ;  and,  therefore,  where  the  course  is  to  record 
them,  which  will  be  presumed  until  the  contrary  is  shown,  the 
record,  or  a  copy,  properly  authenticated,  is  the  only  competent 
evidence.^ (5)     The  caption  is  a  necessary  part  of  the  record;  and 

call  upon  the  party  to  show  that  it  was  some  other  person.     See  also  Hodgkinson  v. 
Willis,  3  Cauipb.  401. 

1  Arundell  v.  White,  14  East,  216  ;  Fisher  v.  Lane,  2  W.  Bl.  834  ;  Rex  v.  Smith, 
8  B.  &  C.  342,  per  Ld.  Tenterden. 

2  Dyson  v.  Wood,  3  B.  &  C.  449,  451. 

3  See,  as  to  justices'  court,  Matthews  v.  Houghton,  2  Fairf.  377  ;  Holcomb  v.  Cor- 
nish, 8  Conn.  375,  380  ;  Wolfe  v.  Washburn,  6  Cowen,  261  ;  Webb  v.  Alexander,  7 
Wend.  281,  286.  As  to  probate  courts.  Chase  v.  Hathaway,  14  Mass.  222,  227  ;  Judge 
of  Probate  v.  Briggs,  3  N.  H.  309.  As  to  justices  of  the  sessions.  Commonwealth 
V.  Bolkom,  3  Pick.  281. 


(a)  The  original  papers  and  record  of 
proceedings  in  insolvency,  deposited  in  the 
proper  office  and  produced  by  the  proper 
officer,  are  admissible  in  evidence  equally 
with  certifierl  copies  thereof,  although  such 
certified  copies  are  made  prima  facie  evi- 
dence by  statute.  Odiorne  v.  Bacon,  6 
Gush.  185.  See  also  Miller  v.  Hale,  26 
Pa.  St.  432. 

(h)  The  copy  of  a  record  of  a  justice  of 
the  peace  need  not,  in  Massachusetts,  bear 
a  seal.  Com.  v.  Downing,  4  Gray,  29,  30. 
And  a  copy  of  the  record  of  a  case  before  a 
justice  of  the  peace,  described  as  such  in 
the  record,  is  sufficiently  attested,  if  at- 
tested by  him  as  "justice,"  without  add- 
ing thereto  the  words  "of  the  peace." 
Ibid.  The  contents  of  a  justice's  record 
should  be  proved  by  an  authenticated 
copy.  His  certificate  alleging  what  facts 
appear  by  the  record  is  not  receivable  as 
proof.  English  v.  Sprague,  33  Me.  440. 
See  also,  as  to  records  of  a  justice  of 
the  peace.  Brown  v.  Edson,  23  Vt.  435. 
A  record  made  by  a  justice  of  the  peace, 
or  by  a  justice  of  a  police  court  in  a  crim- 
inal case,  which  does  not  state  that  an  ap- 
peal was  claimed  from  his  decision  by  the 
party  convicted,  is  conclusive  evidence,  in 
an  action  brought  against  the  justice  for 
refusing  to  allow  the  appeal  and  commit- 
ting the  party  to  prison,  that  no  such  ap- 
peal was   claimed.     Wells  v.   Stevens,   2 


Gray,  115,  118.  See  also  Kendall  v.  Pow- 
ers, 4  Met.  553.  The  law  of  the  different 
States,  as  to  what  is  competent  evidence  of 
judicial  records  within  the  same  State,  is  a 
good  deal  relaxed  from  the  requirements 
of  the  act  of  Congress  or  of  the  common 
law.  It  has  been  held  that  the  records  of 
an  inferior  court  may  be  proved  by  pro- 
duction of  the  original,  or  by  copy  duly  au- 
thenticated, or  by  production  of  the  origi- 
nal papers.  State  v.  Bartlett,  47  Me.  396. 
And  tlie  copy  is  sufficiently  authenticated 
by  the  words,  "a  true  copy,"  signed  by 
the  magistrate  at  the  end  of  the  copy. 
Com.  V.  Ford,  14  Gray,  399.  And  it  is 
no  fatal  objection  to  a  copy  of  record,  that 
the  papers  are  certified  separately.  Gold- 
stone  V.  Davidson,  18  Cal.  41.  And  a 
justice's  judgment  may  be  proved  by  the 
production  of  the  original  papers,  verified 
by  his  testimony  with  the  docket  entry  of 
the  justice,  if  no  extended  record  has  been 
maile.  McGrath  v.  Seagrave,  2  Allen,  443. 
It  has  been  held,  in  some  of  the  States, 
that  such  evidence  is  not  sufficient  (Strong 
V.  Bradley,  13  Vt.  9) ;  unless  where  the 
justice  had  deceased  without  perfecting  his 
record.  Story  v.  Kimball,  6  Vt.  541. 
And  when  the  copy  consisted  of  numerous 
papers,  bound  together  with  a  tape,  with 
nothing  upon  the  separate  papers  to  iden- 
tify or  authenticate  them,  preceded  by  a 
certificate  "that  the  papers  each  and  all 


CHAP,    v.]  RECORDS    AND    JUDICIAL    WRITINGS.  657 

the  record   itself,  or  an  examined  copy,  is  tlie  only  legitimate 
evidence  to  prove  it.^ 

§  514.  Foreign  judgments.  The  usual  niodes  of  authenticating 
foreign  judgments  are,  either  by  an  exemplification  of  a  copy  under 
the  great  seal  of  a  State ;  or  by  a  copy,  proved  to  be  a  true  coi)y  by 
a  witness  who  has  compared  it  with  the  original ;  or  by  the  certifi- 
cate of  an  officer,  properly  authorized  by  law  to  give  a  copy,  which 
certificate  must  itself  also  be  duly  authenticated.^  If  the  copy 
is  certified  under  the  hand  of  the  judge  of  the  court,  his  handwrit- 
ing must  be  proved. ^  If  the  court  has  a  seal,  it  ought  to  be  affixed 
to  the  copy,  and  proved ;  even  though  it  be  worn  so  smooth,  as  to 
make  no  distinct  impression.^  And  if  it  is  clearly  proved  that 
the  court  has  no  seal,  it  must  be  shown  to  possess  some  other 
requisites  to  entitle  it  to  credit.'*  If  the  copy  is  merely  certified  by 
an  officer  of  the  court,  without  other  proof,  it  is  inadmissible.^  (a) 

*  Rex  V.  Smith,  8  B.  &  C.  341,  per  Bayley,  J. 

1  Church  V.  Huhbart,  2  Crancli,  228,  per  Marshall,  C.  J.  ;  supra,  §  488,  and  cases 
there  cited.  Proof  by  a  witness,  who  saw  the  clerk  affix  the  seal  of  the  court,  and  at- 
test tlie  copy  with  his  own  name,  the  witness  having  assisted  him  to  compare  it  with 
the  original,  was  held  sufficient.  Buttrick  v.  Allen,  8  Mass.  273.  So,  where  the  wit- 
ness testified  that  the  court  had  no  seal.     Packard  v.  Hill,  7  Cowen,  434. 

2  Henry  v.  Adey,  3  East,  221  ;  Buchanan  v.  Pucker,  1  C'anipb.  63.  The  certificate 
of  a  notary  public  to  this  fact  was  deemed  sufficient,  in  Yeaton  v.  Fry,  5  Cranch,  335. 

^  Oavan  v.  Stewart,  1  Stark.  525  ;  Flindt  i;.  Atkins,  3  Campb.  215,  n.  ;  (iardere  v. 
Columbian  Ins.  Co.,  7  Johns.  514. 

^  Black  V.  Lord  Braybrook,  2  Stark.  7,  per  Ld.  Ellenborough  ;  Packard  i».  Hill, 
7  Cowen,  434. 

5  Appleton  V.  Ld.  Braybrook,  2  Stark.  6  ;  s.  c.  6  M.  &  S.  34  ;  Thompson  v.  Stew- 
art, 3  Conn.  171. 

were  true  copies  of  record,"  it  was  held  he  had  long  known  A  in  the  capacity  of 
insufficient,  as  coining  from  a  district  court  clerk,  and  that  he  helped  him  to  compare 
of  the  United  States  in  another  State,  the  copy  with  the  original,  and  knew  it  to 
Pike  V.  Crehore,  40  Me.  503.  If  the  court  be  correct,  and  from  his  acquaintance  with 
has  no  clerk  the  judge  may,  under  the  act  the  seal  of  the  court  he  knew  that  the 
of  Congress,  act  l)oth  as  clerk  and  presid-  seal  affixed  to  the  copy  was  genuine,  it 
ing  judge.  State  u.  Hinchman,  27  Pa.  St.  was  held  that  the  copy  was  sufficiently 
479.  The  original  of  a  writ  of  attachment  authenticated.  Pickard  v.  Bailey,  6  Fos- 
and  execution  is  as  good  evidence  as  an  ter,  152.  In  a  recent  case  (Di  Sora 
authenticated  copy.  Day  v.  Moore,  13  (Duchess)  c.  Phillips,  33  Law  J.  Ch.  H.  L. 
Gray,  522.  The  copy  coming  from  an  in-  129)  before  the  House  of  Lords,  it  was 
ferior  court,  with  the  transfer  of  the  case,  determined,  that,  in  fixing  the  construc- 
is  good  evidence  to  show  what  was  adju-  tion  of  a  foreign  document  in  the  couits 
dicated.  Brackett  v.  Hoitt,  20  N.  H.  of  that  country,  the  court  are  bound  to 
257.  A  record,  certified  under  the  seal  of  avail  themselves  of-  every  aid,  .so  as  to 
the  court,  is  sufficient  evidence  that  it  is  reach  the  same  i-esult  which  would  be  ob- 
a  court  of  record.  Smith  v.  Redden,  5  tained  in  the  courts  of  the  foreign  forum. 
Har.  321.  See  also  Lancaster  i^.  Lane,  19  For  this  end  the  following  particulars  must 
111.  242;  Brush  v.  Blanchard,  19  111.  31  ;  be  regarded  ■  (1.)  An  accurate  transla- 
Magee  v.  Scott,  32  Pa.  St.  539.  tion  ;  (2.)  An  explanation  of  all  terms  of 
(a)  Where  a  copy  of  a  judgment  re-  art;  (3.)  Information  as  to  any  special 
covered  in  Canada  was  certified  by  A  as  law  ;  (4.)  As  to  any  peculiar  rule  of  con- 
clerk,  and  purported  to  be  under  the  seal  struction  of  the  foreign  State,  affecting  the 
of  the  court,  and  a  witness  testified  that  question. 
VOL  r.  —42 


658  LAW   OP    EVIDENCE.  [PART   III. 

§  515.  Inquisitions.  In  cascs  of  inquisitions  post  mortem  and 
other  private  offices^  the  return  cannot  be  read,  without  also  read- 
in<5  the  commission.  But  in  cascs  of  more  general  concern,  the 
commission  is  of  such  public  notoriety  as  not  to  require  proof.^ 

§  516.  Depositions  in  chancery.  With  regard  to  the  proof  of 
depositions  in  chancery,  the  general  rule  is,  that  they  cannot  be 
read,  without  proof  of  the  bill  and  answer,  in  order  to  show  that 
there  was  a  cause  depending,  as  well  as  who  were  the  parties,  and 
what  was  the  subject-matter  in  issue.  If  there  were  no  cause  de- 
pending, the  depositions  are  but  voluntary  affidavits ;  and  if  there 
were  one,  still  the  depositions  cannot  be  read,  unless  it  be  against 
the  same  parties,  or  those  claiming  in  privity  with  them.  ^  But 
ancient  depositions,  given  when  it  was  not  usual  to  enroll  the 
pleadings,  may  be  read  without  antecedent  proof. ^  They  may  also 
be  read  upon  proof  of  the  bill,  but  without  proof  of  the  answer,  if 
the  defendant  is  in  contempt,  or  has  had  an  opportunity  of  cross- 
examining,  which  he  chose  to  forego. ^  And  no  proof  of  the  bill 
or  answer  is  necessary,  where  the  deposition  is  used  against  the 
deponent,  as  his  own  declaration  or  admission,  or  for  the  purpose 
of  contradicting  him  as  a  witness.*  So,  where  an  issue  is  directed 
out  of  chancery,  and  an  order  is  made  there,  for  the  reading  of  the 
depositions  upon  the  trial  of  the  issue,  the  court  of  law  will  read 
them  upon  the  order,  without  antecedent  proof  of  the  bill  and 
answer,  provided  the  witnesses  themselves  cannot  be  produced.^ 

§  517.  Depositions  under  commission.  Depositions  taken  upon 
interrogatories,  under  a  special  commission,  cannot  be  read  with- 
out proof  of  the  commission  under  which  they  were  taken,  to- 
gether with  the  interrogatories,  if  they  can  be  found.  The 
absence  of  the  interrogatories,  if  it  renders  the  answers  obscure, 
may  destroy  their  effect,  but  it  does  not  prevent  their  being  read.^ 
Both  depositions  and  affidavits,  taken  in  another  domestic  tribu- 
nal, may  be  proved  by  examined  copies.' 

§  518.  Testaments.  Testaments,  in  England,  are  proved  in  the 
ecclesiastical  courts;  and,  in  the  United  States,  in  those  courts 
which  have  been  specially  charged  with  the  exercise  of  this  branch 

6  Bull.  N.  P.  228,  229. 

1  2  Phil.  Evid.  149  ;  Gresley  on  Evid.  185  ;  1  Gilb.  Evid.  56,  57. 

2  1  Gilb.  Evid.  64  ;  Gresley' on  Evid.  185  ;  Bayley  v.  Wylie,  6  Esp.  85. 

^  Cazenove  v.  Vaughan,  1  M.  &  S.  4  ;  Garrington  v.  Cornock,  2  Sim.  567. 

*  Highfield  V.  Peake,  1  M.  &  Malk.  109  ;  supra,  §  512. 

^  Palmer  v.  Lord  Aylesbury,  15  Ves.  176  ;  Gresley  on  Evid.  185  ;  Bayley  v.  Wylie, 
6  Esp.  85. 

6  Rowe  V.  Brenton,  8  B.  &  C.  737,  765. 

T  Supra,  §§  507,  508  ;  Highfield  v.  Peake,  1  M.  &  Malk.  110.  In  criminal  cases, 
some  proof  of  identity  of  the  person  is  requisite.     Supra,  §  512. 


CHAP,    v.]  RECORDS    AND    JUDICIAL    WRITINGS.  659 

of  that  jurisdiction,  generally  styled  courts  of  probate,  but  in 
some  States  known  by  other  designations,  as  ori)hans'  courts,  &c. 
There  are  two  modes  of  proof, —  namely,  the  common  form,  which 
is  upon  the  oath  of  the  executor  alone,  before  the  court  having 
jurisdiction  of  the  probate  of  wills,  without  citing  the  parties 
interested,  and  the  more  solemn  form  of  law,  pet-  testes,  upon  due 
notice  and  hearing  of  all  })arties  concerned.^  The  former  mode 
has,  in  the  United  States,  fallen  into  general  disuse.  By  the 
common  law,  the  ecclesiastical  courts  have  no  jurisdiction  of 
matters  concerning  the  realty ;  and  therefore  the  probate,  as  far 
as  the  realty  is  concerned,  gives  no  validity  to  the  will,^  But  in 
most  of  the  United  States,  the  probate  of  the  will  has  the  same 
eflPect  in  the  case  of  real  estate  as  in  that  of  the  personalty;  and 
where  it  has  not,  the  effect  will  be  stated  hereafter. ^  This  being 
the  case,  the  present  general  course  is  to  deposit  the  original  will 
in  the  registry  of  the  Court  of  Probate,  delivering  to  the  executor 
a  copy  of  the  will,  and  an  exemplification  of  the  decree  of  allow- 
ance and  probate.  And  in  all  cases  where  the  Court  of  Probate 
has  jurisdiction,  its  decree  is  the  proper  evidence  of  the  probate 
of  the  will,  and  is  proved  in  the  same  manner  as  the  decrees  and 
judgments  of  other  courts.^  A  court  of  common  law  will  not  take 
notice  of  a  will,  as  a  title  to  personal  property,  until  it  has  been 
thus  proved;^  and  where  the  will  is  required  to  be  originally 
proved  to  the  jury  as  documentary  evidence  of  title,  it  is  not  per- 
mitted to  be  read  unless  it  bears  the  seal  of  the  Ecclesiastical 
Court,  or  some  other  mark  of  authentication.^  (a) 

§  519.  Letters  of  administration.  Letters  of  administration  are 
granted  under  the  seal  of  the  court  having  jurisdiction  of  the 
probate  of  wills;  and  the  general  course  in  the  United  States,  as 
in  the  case  of  wills,  is  to  pass  a  formal  decree  to  that  effect, 
which  is  entered  in  the  book  of  records  of  the  court.     The  letter 

1  2  Bl.  Comm.  508. 

2  Hoe  V.  Nelthrope,  3  Salk.  154  ;  Bull.  K  P.  245,  246. 
8  See  infra,  §  550,  and  vol.  ii.  tit.  Wills,  §  672.     - 

*  Supra,  §§  501-509,  513  ;  Chase  v.  Hathawa}',  14  Mass.  222,  227  ;  Judge  of  Pro- 
bate V.  Briggs,  3  N.  H.  309;  Farnswortli  v.  Briggs,  6  N.  H.  561. 

^  Stone  V.  Forsyth,  2  Doug.  707.  The  character  of  executor  may  be  proved  by 
the  act-book,  without  producing  the  probate  of  the  will.  Cox  v.  Allingham,  Jacob 
514.     And  see  Doe  »;.  Mew,  7  Ad.  &  El.  240. 

s  Rex  V.  Barnes,  1  Stark.  243  ;  Shumway  v.  Holbrook,  1  Pick.  114.  See  further, 
2  Phil.  Evid.  172  ;  Gorton  v.  Dyson,  1  B.  &  B.  221,  per  Richardson,  J. 

(a)    In  regard  to  wills  executed  and  eign  decree  allowing  the  will  and  probate, 

proved  in  a  foreign  country,  where  it  be-  and  to  record  the  same  in  the  proper  office 

comes  necessary  to  enforce  their  provisions  of  probate,  in  the  forum  wliere  such  evi- 

in  another  forum,  it  is  generally  sufficient  dence  is  to  be  used.     Isham  v.  Gibbons, 

to  produce  an  exemplification  of  the  for-  1  Bradf.  Sur.  69. 


6(30  LAW   OP   EVIDENCE.  [PART   HI. 

of  administration,  therefore,  is  of  the  nature  of  an  exemplifica- 
tion oi  this  record,  and  as  such  is  received  without  other  proof. 
But  where  no  formal  record  is  drawn  up,  the  book  of  acts,  or 
the  original  minutes  or  memorial  of  the  appointment,  or  a 
copy  thereof  duly  authenticated,  will  be  received  as  competent 
evidence.' 

§  520.  Examinations  in  criminal  cases.  Examinations  of  pris- 
oners in  criminal  cases  are  usually  proved  by  the  magistrate  or 
clerk  who  wrote  them  down.*^  But  there  must  be  antecedent 
proof  of  the  identity  of  the  prisoner  and  of  the  examination.  If 
the  prisoner  has  subscribed  the  examination  with  his  name,  proof 
of  his  handwriting  is  suflficient  evidence  that  he  has  read  it;  but 
if  he  has  merely  made  his  mark,  or  has  not  signed  it  at  all,  the 
magistrate  or  clerk  must  identify  the  ])risoner,  and  prove  that 
the  writing  was  duly  read  to  him,  and  that  he  assented  to  it.^ 

§  521.  Writs.  In  regard  to  the  proof  of  tvrits,  the  question 
whether  this  is  to  be  made  by  production  of  the  writ  itself,  or  by 
a  copy,  depends  on  its  having  been  returned  or  not.  If  it  is  only 
matter  of  inducement  to  the  action,  and  has  not  been  returned, 
it  may  be  proved  by  producing  it.  But  after  the  writ  is  returned 
it  has  become  matter  of  record,  and  is  to  be  proved  by  a  copy  from 
the  record,  this  being  the  best  evidence.  ^  If  it  cannot  be  found 
after  diligent  search,  it  may  be  proved  by  secondary  evidence, 
as  in  other  cases. ^  The  fact,  however,  of  the  issuing  of  the  writ 
may  sometimes  be  proved  by  the  admission  of  the  party  against 
whom  it  is  to  be  proved.^  And  the  precise  time  of  suing  it  out 
may  be  shown  by  parol.* 

§  522.    Admissibility  and  effect  of  record.       We   proceed  in  the 

7  The  practice  on  this  subject  is  various  in  the  different  States.  See  Dickinson  v. 
McCraw,  4  Eand.  158  ;  Sevraour  v.  Beach,  4  Vt.  493  ;  Jackson  v.  Robinson,  4  Wend. 
436  ;  Farnsworth  v.  Briggs,  6  N.  H.  561  ;  Hoskins  t-.  Miller,  2  Devereux,  360  ; 
Owingsi;.  Beall,  1  Littell,  257,  259  ;  Browning  v.  Huff,  2  Bailey,  174,  179;  Owings 
V.  Hull,  9  Peters,  608,  626.  See  also  Bull.  N.  P.  246  ;  Elden  v.  Kesdel,  8  East,  187  ; 
2  M.  &  S.  567,  per  Baylev,  J.;  2  Phil.  Evid.  172,  173  ;  1  Stark.  Evid.  255. 

8  2  Hale,  P.  C.  52,  284. 

9  See  mipra,  §§  224,  225,  227,  228. 

1  Bull.  N.  P.  234  ;  Foster  i'.  Trull,  12  Johns.  456  ;  Pigot  v.  Davis,  3  Hawks,  25  ; 
Frost  V.  Shapleigh,  7  Greenl.  236  ;  Brush  v.  Taggart,  7  Johns.  19  ;  Jenner  v.  Joliffe, 
6  Johns.  9. 

2  Supra,  §  84,  n.  (2). 

'  As,  in  an  action  by  the  officer  against  the  bailee  of  the  goods  attached,  for  which 
he  has  given  a  forthcoming  obligation,  reciting  the  attachment.  Lyman  v.  Lyman, 
11  Mass.  317  ;  Spencer  v.  Williams,  2  Vt.  209  ;  Lowry  v.  Cady,  4  Vt.  504  ;  Foster  v. 
Trull,  12  Johns.  456.  So  whore  the  sheriff  is  sued  for  an  escape,  and  has  not 
returned  the  precept  on  which  the  arrest  was  made.  Hinman  v.  Brees,  13  Johns. 
529. 

*  Lester  v.  Jenkins,  8  B.  &  C.  339  ;  Morris  v.  Pugh,  3  Burr.  1241  ;  Wilton  v. 
Girdlestone,  5  B.  &  Aid.  847  ;  Michaels  u.  Shaw,  12  Wend.  587  ;  Allen  v.  Portland 
Stage  Co.,  8  Greenl.  438;  Taylor  v.  Dundass,  1  Wash.  94. 


CHAP,    v.]  RECORDS    AND   JUDICIAL   WRITINGS.  661 

next  place  to  consider  the  admissibility  and  effect  of  records 
as  instruments  of  evidence.  The  rules  of  law  upon  this  subject 
are  founded  upon  these  evident  principles  or  axioms,  that  it  is  for 
the  interest  of  the  community  that  a  limit  should  be  prescribed 
to  litigation;  and  that  the  same  cause  of  action  ought  not  to  be 
brought  twice  to  a  final  determination.  Justice  requires  that 
every  cause  be  once  fairly  and  impartially  tried ;  but  the  public 
tranquillity  demands  that,  having  been  once  so  tried,  all  litiga- 
tion of  that  question,  and  between  those  parties,  should  be  closed 
forever.  It  is  also  a  most  obvious  principle  of  justice,  that  no 
man  ought  to  be  bound  by  proceedings  to  which  he  was  a  stranger ; 
but  the  converse  of  this  rule  is  equally  true,  that  by  proceedings 
to  which  he  was  not  a  stranger  he  may  well  be  held  bound. 

§523.  Parties.  Under  the  term  joar^iVs,  in  this  connection,  the 
law  includes  all  who  are  directly  interested  in  the  subject-matter, 
and  had  a  right  to  make  defence,  or  to  control  the  proceedings,  and 
to  appeal  from  the  judgment.  This  right  involves  also  the  right 
to  adduce  testimony,  and  to  cross-examine  the  witnesses  adduced 
on  the  other  side.  Persons  not  having  these  rights  are  regarded  as 
strangers  to  the  cause.  ^  (a)  But  to  give  full  effect  to  the  princi- 
ple by  which  parties  are  held  bound  by  a  judgment,  all  persons 
who  are  represented  by  the  parties,  and  claim  under  them,  or 
in  privity  with  them,  are  equally  concluded  by  the  same  proceed- 
ings. We  have  already  seen  that  the  term,  privity  denotes  mutual 
or  successive  relationship  to  the  same  rights  of  property,^  The 
ground,  therefore,  upon  which  persons  standing  in  this  relation 
to  the  litigating  party  are  bound  by  the  proceedings  to  which  he 
was  a  party  is,  that  they  are  identified  with  him  in  interest;  and 
wherever  this  identity  is  found  to  exist,  all  are  alike  concluded. 
Hence,  all  privies,  whether  in  estate,  in  blood,  or  in  law,  arc  es- 
topped from  litigating  that  which  is  conclusive  upon  him  with 

^  Ducliess  of  Kingston's  Case,  20  Howell's  St.  Tr.  538,  n.  ;  Carter  r.  Bennett, 
4  Fla.  352.  Where  a  father,  during  the  absence  of  his  minor  son  from  the  country 
commenced  an  action  of  crim.  con.  as  his  prochein  amy,  the  judgnieiit  was  held  con- 
clusive against  the  son,  after  his  majority  ;  the  prochein  mm/  having  been  appointed  by 
the  court.  Morgan  v.  Thorne,  9  Dowl.  228.  In  New  York,  a  judgment  in  an  action 
on  a  joint  obligation  is  conclusive  evidence  of  the  liability  of  those  only  who  were 
personally  served  with  the  process.     2  Rev.  Sta^.  574  (3d  ed.). 

2  Supra,  §  189.     See  also  §§  19,  20. 

(a)  Hale    v.    Finch,    104    IT.    S.    261  ;  cannot  bring  a  writ  of  error  to  reverse,  he 

Buttertield  v.  Smith,  101   Id.  570  ;  Prich-  may,  without  reversing  it,  prove  it  so  erro- 

ard  V.    Farrar,    11(3   Mass.   213.      It    is  a  neous  and  void  in  any  suit  in  which  its 

general  and  established  rule  of  law,  that  validity  is  drawn  in  question.     By  Met- 

when  a  party's  right  may  be  collaterally  calf,   J.,    in    Vose    v.    Morton,    4   Cush. 

affected   by  a  judgment,    which  foi'    any  (Mass.)  27,  31. 
cause  is  erroneous  and  void,  but  which  he 


662  LAW    OF    EVIDENCE.  [PART   III. 

whom  they  are  in  privity.-^  (^)  And  if  one  covenants  for  the  re- 
sults or  consequences  of  a  suit  between  others,  as  if  he  covenants 
that  a  certain  mortgage,  assigned  by  him,  shall  produce  a  speci- 
fied sum,  he  thereby  connects  himself  in  privity  with  the  proceed- 
ings, and  the  record  of  the  judgment  in  that  suit  will  be  conclu- 
sive evidence  against  him.^ 

§  524.  Both  parties  bound,  or  neither.  But  to  prevent  this  rule 
from  working  injustice,  it  is  held  essential  that  its  operation  be 
mutual.  Both  the  litigants  must  be  alike  concluded,  or  the  pro- 
ceedings cannot  be  set  up  as  conclusive  upon  either.  For  if  the 
adverse  party  was  not  also  a  party  to  the  judgment  offered  in  evi- 
dence, it  may  have  been  obtained  upon  his  own  testimony;  in 
which  case,  to  allow  him  to  derive  a  benefit  from  it  would  be 
unjust.^  Another  qualification  of  the  rule  is,  that  a  party  is  not 
to  be  concluded  by  a  judgment  in  a  prior  suit  or  prosecution, 
where,  from  the  nature  or  course  of  the  proceedings,  he  could  not 
avail  himself  of  the  same  means  of  defence,  or  of  redress,  which 
are  open  to  him  in  the  second  suit.^ 

§  525.  Cases  in  rem  excepted.  An  apparent  exception  to  this 
rule,  as  to  the  identity  of  the  parties,  is  allowed  in  the  cases 
usually  termed  proceedings  in  rem,  which  include  not  only  judg- 
ments of  condemnation  of  property,  as  forfeited  or  as  prize,  in  the 
Exchequer  or  Admiralty,  but  also  the  decisions  of  other  courts 
directly  upon  the  personal  status  or  relations  of  the  party,  such  as 
marriage,  divorce,  bastardy,  settlement,  and  the  like.  These 
decisions  are  binding  and  conclusive,  not  only  upon  the  parties 
actually  litigating  in  the  cause,  but  upon  all  others ;  partly  upon 
the  ground  that,  in  most  cases  of  this  kind,  and  especially  in 
questions  upon  property  seized  and  proceeded  against,  every  one 

3  Carver  v.  Jackson,  4  Peters,  85,  86  ;  Case  v.  Keeve,  14  Jolms.  81.  See  also 
Kinnersley  v.  Wm.  Orpe,  2  Doii<;.  .517,  expounded  in  14  Johns.  81,  82,  by  Spencer,  J. 

4  Eapelve  v.  Prince,  4  Hill,  119. 

1  Wood  v.  Davis,  7  Cranch,  271  ;  Davis  v.  Wood,  1  Wheat.  6. 

2  1  Stark.  Evid.  214,  215. 

(b)  Clapp  V.  Herrick,  129  Mass.  292  ;  issue  was  pleaded    to    the  action  against 

Ballou  V.  Ballou,   110    N.  Y.   402  ;  Park-  the  servant;  and  parol  evidence  is  admis- 

hurst    V.    Berdell,    110    N.    Y.    392.      A  sible  to  show  that  the  same  matter  is  in 

privy  by  representation,   as  an  executor,  controversy  in    both  actions.      Emery  v. 

administrator,  or  assignee,  is  bound  by  a  Fowler,  39  Me.  326.     So,  too,  in  all  cases, 

iudt,'ment  asainst  his  principal.     Chapin  the  record  of  a  judgment  is  evidence  in 

'v.  Curtis,  23  Conn.  388.     A  judgment  on  suits  where  the  rights  of  the  i)arties  are 

the  merits  against  a  master,  in  an  action  dependent  upon    those   of   the  parties  to 

of  trespass  for  the  act  of   his  servant,  is  such  judgment,  and  such  dependence  may 

a  bar  to  an    action    against    the    servant  be  shown   by  evidence  en  pais.      Key  v. 

for  the  same  act,  though  such  judgment  Dent,  14  Md.  86. 
was  not   rendered   till   after  the  general 


CHAP,    v.] 


RECORDS   AND   JUDICIAL  WRITINGS. 


663 


who  can  possibly  be  affected  by  the  decision  has  a  right  to  appear 
and  assert  his  own  rights  by  becoming  an  actual  party  to  the 
proceedings ;  and  partly  upon  the  more  general  ground  of  public 
policy  and  convenience,  it  being  essential  to  the  peace  of  society 
that  questions  of  this  kind  should  not  be  left  doubtful,  but  that 
the  domestic  and  social  relations  of  every  member  of  the  com- 
munity should  be  clearly  defined  and  conclusively  settled  and  at 
rest.  ^  {a) 

§  526.  Judgments  of  a  public  nature  excepted.  A  further  excep- 
tion is  admitted  in  the  case  of  verdicts  and  judgments  upon  sub- 
jects of  a  public  nature,  such  as  customs,  and  the  like ;  in  most 
all  of  which  cases,  evidence  of  reputation  is  admissible ;  and  also 
in  cases  of  judgments  in  rem,  which  may  be  again  mentioned 
hereafter.  ^ 

§  527.  Collateral  facts.  A  judgment,  when  used  by  way  of 
inducement,  or  to  establish  a  collateral  fact,  may  be  admitted, 
though  the  parties  are  not  the  same.  Thus,  the  record  of  a  con- 
viction may  be  shown,  in  order  to  prove  the  legal  infamy  of  a 
witness.     So,  it  may  be  shown,  in  order  to  let  in  the  proof  of  what 

1  1  stark.  Evid.  27,  28. 

2  See  infra,  §§  541,  542,  544,  555. 


(a)  The  decree  of  a  court  of  competent 
jurisdiction  dismissing  for  want  of  proof 
a  libel  tiled  by  a  wife  against  her  hus- 
band, after  having  left  his  house,  for  a 
divorce  from  bed  and  board  for  extreme 
cruelty,  is  not  conclusive  evidence  of  her 
having  unjustifiably  left  his  house,  in  an 
action  by  a  third  person  against  him  for 
necessaries  furnished  the  wife.  Burlen  o. 
Shannon,  3  Gray,  387,  389.  In  giving 
the  opinion  of  the  court  in  this  case, 
Sliaw,  C.  J.,  said  :  "  We  have  no  doubt 
that  a  decree  upon  a  libel  for  divorce, 
directly  determining  the  statics  of  the  par- 
ties, that  is,  whether  two  persons  are  or 
are  not  husband  and  wife  ;  or,  if  they 
have  been  husband  and  wife,  that  such  a 
decree  divorcing  them,  either  a  vinculo  or 
a  mensa,  would  be  conclusive  of  the  fact 
in  all  courts  and  eveiywhere,  that  they 
are  so  divorced.  If  it  were  alleged  that 
a  marriage  was  absolutely  void,  as  being 
within  the  degrees  of  consanguinity,  a  de- 
cree of  this  court,  on  a  libel  by  one  of  the 
parties  against  the  other,  adjudging  the 
marriage  to  be  void,  or  valid,  would  be 
conclusive  everywhere.  So,  under  the 
Rev.  Stat.  76,  §  4,  where  one  party  alleges 
and  the  other  denies  the  subsistence  of  a 
valid  marriage  between  them,  the  adjudi- 
cation of  a  competent  tribunal  would  be 
conclusive.     The  legal,  social  relation  and 


condition  of  the  parties,  as  being  husband 
and  wife  or  otherwise,  divorced  or  other- 
wise, is  what  we  understand  by  the  terra 
status.  To  this  extent  the  decree  in  ques- 
tion had  its  full  effect,  by  which  every 
party  is  bound.  It  did  not  establish,  but 
it  recognized  and  presupposed,  the  rela- 
tion of  husband  and  wife  as  previously 
subsisting  ;  and  as  the  final  judgment 
was,  that  the  grounds  on  which  a  divorce 
a  mcnsa  was  claimed  were  not  established 
in  proof,  and  the  libel  was  dismissed, 
which  was  a  final  judgment,  no  change  in 
the  status  of  the  parties  was  effected,  and 
the)''  stood,  after  the  judgment,  in  the 
relation  in  which  they  stood  at  the  com- 
mencement of  the  suit,  —  that  of  husband 
and  wife.  Beyond  tliis  legal  effect  of  a 
judgment  in  a  case  for  divorce  —  that  of 
determining  the  status  of  the  parties —  the 
law  applies,  as  in  other  judicial  proceed- 
ings ;  viz.,  that  a  judgment  is  not  evidence 
in  another  suit,  except  in  cases  in  which 
the  same  parties  or  their  privies  are  liti- 
gating in  regard  to  the  same  subject  of 
controversy."  Authenticated  copies  of 
decrees  of  certain  courts  in  the  Russian 
province  of  Lithuania,  on  a  question  of 
{)edigree,  of  which  they  have  jurisdiction, 
are  conclusive  evidence  of  the  facts  adju- 
dicated again.st  all  the  world.  Ennis  v. 
Smith,  14  How.  (U.S.)  400. 


664  LAW   OF   EVIDENCE.  [PART   III. 

was  sworn  at  the  trial,  or  to  justify  proceedings  in  execution  of 
the  judgment.  So,  it  may  be  used  to  show  that  the  suit  was  de- 
termined ;  or  in  proper  cases,  to  prove  the  amount  which  a  prin- 
cipal has  been  compelled  to  pay  for  the  default  of  his  agent;  or, 
the  amount  which  a  surety  has  been  compelled  to  pay  for  the 
principal  debtor ;  and,  in  general,  to  show  the  fact,  that  the  judg- 
ment was  actually  rendered  at  such  a  time,  and  for  such  an 
amount.^  (a) 

§  527  a.  Judgments  as  admissions.  A  record  may  also  be  ad- 
mitted in  evidence  in  favor  of  a  stranger,  against  one  of  the  par- 
ties, as  containing  a  solemn  admission,  or  judicial  declaration  by 
such  party,  in  regard  to  a  certain  fact.  But  in  that  case  it  is 
admitted  not  as  a  judgment  conclusively  establishing  the  fact, 
but  as  the  deliberate  declaration  or  admission  of  the  party  him- 
self that  the  fact  was  so.  It  is  therefore  to  be  treated  according: 
to  the  principles  governing  admissions,  to  which  class  of  evidence 
it  properly  belongs.  Thus,  where  a  carrier  brought  trover  against 
a  person  to  whom  he  had  delivered  the  goods  intrusted  to  him, 
and  which  were  lost,  the  record  in  this  suit  was  held  admissible 
for  the  owner,  in  a  subsequent  action  brought  by  him  against  the 
carrier,  as  amounting  to  a  confession  in  a  court  of  record,  that  he 
had  the  plaintiff's  goods.  ^  So,  also,  where  the  plaintiff,  in  an 
action  of  trespass  quare  clausum  f regit,  claimed  title  by  disseisin, 
against  a  grantee  of  the  heirs  of  the  disseisee,  it  was  held,  that 
the  count,  in  a  writ  of  right  sued  by  those  heirs  against  him, 
might  be  given  in  evidence,  as  their  declaration  and  admission 
that  their  ancestor  died  disseised,  and  that  the  present  plaintiff 
was  in  possession.  ^  So,  where  two  had  been  sued  as  partners,  and 
had  suffered  judgment  by  default,  the  record  was  held  competent 
evidence  of  an  admission  of  the  partnership,  in  a  subsequent  ac- 
tion brought  by  a  third  person  against  them  as  partners.*^  And 
on  the  same  ground,  in  a  libel  by  a  wife  for  a  divorce,  because  of 
the  extreme  cruelty  of  the  husband,  the  record  of  his  conviction 
of  an  assault  and  battery  upon  her,  founded  upon  his  plea  of 
"guilty,"  was  held  good  evidence  against  him,  as  a  judicial  ad- 

8  See  further,  infra,  §§  538,  539  ;  Locke  o.  Winston,  10  Ala.  849  ;  King  v.  Chase, 
15  N.  H.  9  ;  Green  v.  New  River  Co.,  4  T.  R.  589. 

1  Tiiey  v.  Cowling,  1  Ld.  Raym.  744,  per  Holt,  C.  J.  ;  s.  c.  Bull.  N.  P.  243  ;  Par- 
sons V.  Copeland,  33  Me.  370. 

■^  Robison  v.  Swett,  3  Greenl.  316  ;  supra,  §  195  ;  Wells  v.  Compton,  3  Rob.  (La.) 
171.     And  see  Kellenberger  v.  Sturtevant,    7  Cush.  465. 

«  Cragin  v.  Carleton,  8  Shepl.  492. 

(a)  Chamberlain  v.  Carlisle,  26  N.  H.  540;  Key  v.  Dent,  14  Md.  86. 


CHAP,    v.]  RECORDS   AND   JUDICIAL   WRITINGS.  665 

mission  of  the  fact.      But  if  the  plea  had  been  "not  guilty,''  it 
would  have  been  otherwise.'* 

§  528.  Ground  of  coiiclusiveuess  of  judgments.  The  principle 
upon  which  judgments  are  held  conclusive  upon  the  parties  re- 
quires that  the  rule  should  apply  only  to  that  which  was  directhj 
in  issue,  and  not  to  everything  which  was  incidentally  brought 
into  controversy  during  the  trial.  We  have  seen  that  the  evi- 
dence must  correspond  with  the  allegations,  and  be  confined  to  the 
point  in  issue.  It  is  only  to  the  material  allegations  of  one  party 
that  the  other  can  be  called  to  answer ;  it  is  only  upon  such  that 
an  issue  can  properly  be  formed ;  to  such  alone  can  testimony  be 
regularly  adduced ;  and  upon  such  an  issue  only  is  judgment  to 
be  rendered.  A  record,  therefore,  is  not  held  conclusive  as  to 
the  truth  of  any  allegations,  w^hich  were  not  material  nor  travers- 
able; but  as  to  things  material  and  traversable,  it  is  conclusive 
and  final.  The  general  rule  on  this  subject  was  laid  down  with 
admirable  clearness,  by  Lord  Chief  Justice  De  Grey,  in  the 
Duchess  of  Kingston's  case,i  and  has  been  repeatedly  confirmed 
and  followed,  without  qualification.  "  From  the  variety  of  cases, " 
said  he,  "relative  to  judgments  being  given  in  evidence  in  civil 
suits,  these  two  deductions  seem  to  follow  as  generally  true: 
First,  that  the  judgment  of  a  court  of  concurrent  jurisdiction, 
directly  upon  the  point  is,  as  a  plea,  a  bar,  or,  as  evidence,  con- 
clusive between  the  same  parties,  upon  the  same  matter,  directly 
in  question  in  another  court;  secondly,  that  the  judgment  of  a 
court  of  exclusive  jurisdiction,  directly  upon  the  point,  is,  in  like 
manner,  conclusive  upon  the  same  matter,  between  the  same  par- 
ties, coming  incidentally  in  question  in  another  court,  for  a  dif- 
ferent purpose.^  But  neither  the  judgment  of  a  concurrent  nor 
exclusive  jurisdiction  is  evidence  of  any  matter,  which  came  col- 
laterally in  question,  though  within  their  jurisdiction;  nor  of  any 
matter  incidentally  cognizable ;  nor  of  any  matter  to  be  inferred 
by  argument  from  the  judgment. "  ^  (a) 

4  Bnidley  v.  Bradley,  2  Fairf.  367  ;  Woodruffs.  Woodruff,  Id.  475. 

1  20  Howell's  St.  Tr.  538  ;  expressly  ado])ted  and  confirmed  in  Harvey  v.  Richards, 
2  Gall.  229,  per  Story,  J.  ;  and  in  Hibshnum  v.  DuUeban,  4  Watts,  183,  per  Gibson, 
C.  J.     And  see  King  v.  Chase,  15  N.  H.  9. 

2  Thus,  a  judgment  at  law  against  the  validity  of  a  bill,  as  having  been  given  for  a 
gambling  debt,  is  conclusive  of  that  fact  in  equity  also.  Pearce  v.  Gray,  2  Y.  &  C.  322. 
Plans,  and  documents  referred  to  in  the  pleadings,  are  conclusive  upon  the  parties,  if 
they  are  adopted  by  the  i.ssues  and  make  part  of  the  judgment  ;  but  uot  otherwise. 
Hobbs  V.  Parker,  1  Redingt.  143. 

8  See  2  Kent,  Comm.  119-121  ;    Story  on  Confl.   of  Laws,   §§   591-593,  603-610. 

(a)  Lewis  v.  Boston,  130  Mass.  339  ;  v.  Trustees  of  School  Fund,  102  Id.  262  ; 
Stockwell  V.  Silloway,  113  Id.  38  i  ;  Allen     United  States,  &c.  Felting  Co.  v.  Asbestos 


QQQ  LAW    OF    EVIDENCE.  [PART    III. 

§  529.  Judgment  must  be  final.  It  is  Only  where  the  point  in 
issue  has  been  determined,  that  the  judgment  is  a  bar.  If  the  suit 
is  discontinued,  or  the  plaintiff  becomes  nonsuit,  or  for  any  other 
cause  there  has  been  no  judgment  of  the  court  upon  the  matter 
in  issue,  the  proceedings  are  not  conclusive.*  (5) 

§  530.  And  upon  the  merits.  So,  also,  in  order  to  constitute  the 
former  judgment  a  complete  bar,  it  must  appear  to  have  been  a 
decision  upon  the  merits;  and  this  will  be  sufficient,  though  the 
declaration  were  essentially  defective,  so  that  it  would  have  been 
adjudged  bad  on  demurrer.^  (c)  But  if  the  trial  went  off  on  a 
technical  defect, ^  or  because  the  debt  was  not  yet  due,^  or  because 
the  court  had  not  jurisdiction,*  or  because  of  a  temporary  dis- 
ability of  the  plaintiff  to  sue,^  or  the  like,  the  judgment  will  be 
no  bar  to  a  future  action. 

§  531.  Former  recovery.  It  is  well  settled,  that  a  former  re- 
covery may  be  shown  in  evidence,  under  the  general  issue,  as  well 
as  pleaded  in  bar ;  and  that  when  pleaded,  it  is  conclusive  upon 
the  parties.^ (a)  But  whether  it  is  conclusive  when  given  in  evi- 
dence is  a  point  which  has  been  much  doubted.  It  is  agreed,  that 
when  there  has  been  no  opportunity  to  plead  a  matter  of  estoppel 
in  bar,  and  it  is  offered  in  evidence,  it  is  equally  conclusive,  as 
if  it  had  been  pleaded.'     And  it  is  further  laid  down,  that  when 

This  suliject,  particularly  with  regard  to  the  identity  of  the  issue  or  sulyect-matter  in 
controversy,  in  actions  concerning  the  realty,  is  ably  reviewed  and  illustrated  by 
Putnam,  J.,  in  Arnold  v.  Arnold,  17  Pick.  7-14. 

4  Knox  V.  Waldoborough,  5  Greenl.  185  ;  Hull  v.  Blake,  13  Mass.  155  ;  Sweigart 
V.  Berk,  8  S.  &  R.  305  ;  Bridge  v.  Sumner,  1  Pick.  371  ;  3  Bl.  Comni.  296,  377.  So, 
if  the  judgment  has  been  reversed.  Wood  v.  Jackson,  8  Wend.  9.  If  there  has  been 
no  judgment,  it  has  been  ruled  that  the  pleadings  are  not  admissible  as  evidence  of  the 
facts  recited  in  them.     Holt  v.  Miers,  9  C.  &  P.  191. 

1  Hughes  V.  Blake,  1  Mason,  515,  519,  per  Story,  J. 

2  Ibid.;  Lane  v.  Harrison,  6  Munf.  573;  McDonald  v.  Eainor,  8  Johns.  442; 
Lam  pen  v.  Kedgewin,  1  Mod.  207. 

3  N.  Eng.  Bank  v.  Lewis,  8  Pick.  113. 

♦  Estill  V.  Taul,  2  Yerg.  467,  470. 

*  Dixon  V.  Sinclear,  4  Vt.  354. 

6  Trevivan  v.  Lawrence,  1  Salk.  276  ;  s.  c.  3  Salk.  151  ;  Outram  v.  Morewood,  3 
East,  346  ;  Kitchen  v.  Campbell,  3  Wils.  304  ;  s.  c.  2  W.  Bl.  827. 

'  Howard  v.  Mitchell,  14  Mass.  241  ;  Adams  v.  Barnes,  17  Mass.  365.  So,  in 
equity.     Dows  v.  McMichael,  6  Paige,  139. 

Felting  Co.,  18  Blatchf.  C.  C.  310  ;  Price  ment  of  facts,  has  been  held  not  to  be  a 

V.  Dewey,  6  Sawy.  C.  C.  493  ;  Putnam  v.  bar   to  a   suit  between   the  same  parties 

Clark,   34   N.  J.   Eq.   532.     The  same  is  upon  the  same  cause  of  action,  though  the 

true  if  a  ])arty  to  a  suit  does  not  appear,  State  court,  in  pronouncing  its  judgment 

and    judgment    is    rendei'ed   by   default,  may  have  expressed  an  opinion  ui)on  the 

Jordan  v.  Van  Epps,  85  N.  Y.  427.  merits  of  the  plaintiffs    case.     Homer  i^. 

(h)  Holbert's  Estate,  57  Cal.  257.  Brown,  16  How.  (U.  S.)  354. 

(c)   A  judgment  of  nonsuit  by  the  Su-  (a)  Warren  v.  Comings,  6  Cush.  (Mass.) 

preme  Co'iirt  of  Massachusetts,  entered  by  103  ;    Chamberlain  v.   Carlisle,  26  N.  H. 

consent  of  the  parties,  on  an  agreed  state-  540  ;  Meiss  i;.  Gill,  44  Oh.  St.  258. 


CHAP,    v.]  RECORDS    AND    JUDICIAL    WRITINGS.  G67 

the  matter,  to  which  the  estoppel  applies  is  alleged  by  one  party, 
and  the  other,  instead  of  pleading  the  estoppel,  chooses  to  take 
issue  on  the  fact,  he  waives  the  benefit  of  the  estoppel,  and  leaves 
the  jury  at  liberty  to  find  according  to  the  fact.-^  Tliis  proposi- 
tion is  admitted,  in  its  application  to  estoppels  arising  from  an 
act  of  the  party  himself,  in  making  a  deed  or  the  like;  but  it  has 
been  denied  in  its  application  to  judgments  recovered;  for,  it  is 
said,  the  estoppel,  in  the  former  case,  is  allowed  for  the  benefit  of 
the  other  party,  which  he  may  waive;  but  the  whole  community 
have  an  interest  in  holding  the  parties  conclusively  bound  by  the 
results  of  their  own  litigation.  And  it  has  been  well  remarked, 
that  it  appears  inconsistent,  that  the  authority  of  a  res  judicata 
should  govern  the  court,  when  the  matter  is  referred  to  them  by 
pleading,  but  that  a  j^iry  should  be  at  liberty  altogether  to  dis- 
regard it,  when  the  matter  is  referred  to  them  in  evidence ;  and, 
that  the  operation  of  so  important  a  principle  should  be  left  to 
depend  upon  the  technical  forms  of  pleading  in  particular  ac- 
tions.* And  notwithstanding  there  are  many  respectable  oppos- 
ing decisions,  the  weight  of  authority,  at  least  in  the  United 
States,  is  believed  to  be  in  favor  of  the  position,  that  where  a 
former  recovery  is  given  in  evidence,  it  is  equally  conclusive,  in 
its  effect,  as  if  it  were  specially  pleaded  by  the  way  of  estoppel.^  (?>) 

3  Howard  v.  Mitchell,  sup.  ;  Adams  v.  Barnes,  sup. 

4  Phil.  &  Am.  on  Evid.  512. 

5  This  point  was  briefly,  but  very  forcibly,  argued  by  Kennedy,  J.,  in  Marsh  v.  Pier, 
4  Rawle,  288,  289,  in  the  following  terms:  "The  propriety  of  those  decisions,  which 
have  admitted  a  judgment  in  a  former  suit  to  be  given  in  evidence  to  the  jury,  on  the 
trial  of  a  second  suit  for  the  same  cause  between  the  same  parties,  or  those  claiming 
under  them,  but  at  the  same  time  have  held  that  the  jury  were  not  absolutely  bound 
by  sui3ii  judgment,  because  it  was  not  pleaded,  may  well  be  questioned.     The  maxim, 

(&)  Krekeler  v.  Ritter,  62  N.  Y.  372.  volved  in  the  present  controversy,  it  must, 
(''f.  Thompson  t'.  Roberts,  24  How.  (N.  Y.)  to  be  conclusive,  be  pleaded  strictly  as 
Pr.  233.  This  question  is  carefully  exam-  an  estoppel,  and  the  record  vouched  in 
ined  by  Rcdtield,  J.,  in  a  case  in  Vermont  support  of  the  pli^a  must  contain,  upon  its 
(Gray  v.  Pingry,  17  Vt  419),  and  the  face,  evidence  that  the  particular  fact  was 
earlier  cases  reviewed.  The  form  of  plead-  in  issue,  and  was  found  by  the  triers.  And 
ing  an  estoppel  is  there  considered,  and  if  the  record  do  not  show  this,  and  it  be- 
that  adopted  in  Shelley  v.  Wright,  Willes,  comes  necessary  to  resort  to  oral  evidence 
9,  approved.  But  it  is  there  said,  that  to  show  it,  the  matter  cannot  be  pleaded 
when  a  foiiner  adjudication  is  relied  n])on,  as  an  estoppel,  but  it  becomes  a  question 
as  having  determined  the  entire  contro-  for  the  jury  ;  but,  nevertheless,  if  it  be 
versy  now  in  hand,  it  need  never  be  proved  to  the  satisfaction  of  the  jury  that 
pleaded  as  an  estoppel,  but  is  an  equita-  the  fact  was  determined  in  the  former  con- 
ble  defence,  and  in  many  actions  may  be  troversy  between  the  same  parties,  it  is 
given  in  evidence  under  the  general  issue  ;  equally  conclusive,  both  upon  the;  ])arties 
and  when  required  to  be  pleaded  specially,  and  the  jury,  as  if  it  appeared  of  record, 
is  not  required  to  be  pleaded  with  greater  Perkins  v.  Walker,  19  Vt.  144,  where 
strictness  than  any  other  plea  in  bar.  But  the  subject  i.s  very  ably  discussed  by 
when  the  former  trial  is  relied  upon  as  set-  Bennett,  J. 
tling  some  collateral  matter  of  fact,   in- 


668  LAW   OF   EVIDENCE,  [PART    111. 

§  532,  Identity  of  issue.  When  a  former  judgment  is  shown 
by  way  of  bar,  whether  by  pleading,  or  in  evidence,  it  is  compe- 
tent for  the  plaintiff  to  reply,  that  it  did  7iot  relate  to  the  same 

'  nemo  debet  bis  vcxari  si  coDstet  curiae  quod  sit  pro  una  et  eadem  causa,'  being  con- 
sidered, as  doubtless  it  was,  established  fur  the  protection  and  benefit  of  the  party,  he 
may  therefore  waive  it ;  and  unquestionably,  so  far  as  he  is  individually  concerned, 
there  can  be  no  rational  objection  to  his  doing  so.  But  then  it  ought  to  be  recollected 
that  the  community  has  also  an  equal  interest  and  concern  in  the  mattei',  on  account  of 
its  peace  and  (juiet^  which  ought  not  to  be  disturbed  at  the  will  and  pleasure  of  every 
individual,  in  order  to  gratify  vindictive  and  litigious  feelings.  Hence  it  would  seem 
to  follow,  that,  wherever  on  the  trial  of  a  cause  from  the  state  of  the  pleadings  in  it, 
the  record  of  a  judgment  rendered  by  a  competent  tribunal  upon  the  merits  in  a  former 
action  for  the  same  cause,  between  the  same  parties,  or  those  claiming  under  them, 
is  properly  given  in  evidence  to  the  jury,  it  ought  to  be  considered  conclusively 
binding  on  both  court  and  jury,  and  to  preclude  all  further  inquiry  in  the  cause  ; 
otherwise  the  rule  or  maxim,  '  expedit  reipublicae  ut  sit  finis  litium,'  which  is  as  old 
as  the  law  itself,  and  a  part  of  it,  will  be  exploded  and  entirely  disregarded.  But  if  it 
be  part  of  our  law,  as  seems  to  be  admitted  by  all  that  it  is,  it  appears  to  me,  that  the 
court  and  jury  are  clearly  bound  by  it,  and  not  at  liberty  to  find  against  such  former 
judgment.  A  contrary  doctrine,  as  it  seems  to  me,  subjects  the  public  peace  and  quiet 
to  the  will  or  neglect  of  individuals,  and  prefers  the  gratification  of  a  litigious  disposi- 
tion on  the  part  of  suitors,  to  the  preservation  of  the  public  tranquillity  and  happiness. 
The  result,  among  other  things,  would  be,  that  the  tribunals  of  the  State  would  be 
bound  to  give  their  time  and  attention  to  the  trial  of  new  actions,  for  the  same  causes, 
tried  once  or  oftener,  in  former  actions  between  the  same  parties  or  privies,  without  any 
limitation,  other  than  the  will  of  the  parties  litigant,  to  the  great  delay  and  injury,  if 
not  exclusion  occasionally,  of  other  causes,  which  never  have  passed  in.  rem  jiidicalavi. 
The  effect  of  a  judgment  of  a  court,  having  jurisdiction  over  the  subject-matter  of  con- 
troversy between  the  parties,  even  as  an  estoppel,  is  very  different  from  an  estojipel 
arising  from  the  act  of  the  party  himself,  in  making  a  deed  of  indenture,  &c.,  which 
may,  or  may  not,  be  enforced  at  the  election  of  the  other  party  ;  because,  whatever 
the  parties  have  done  by  compact,  they  may  undo  by  the  same  means.  But  a  judg- 
ment of  a  proper  court,  being  the  sentence  or  conclusion  of  the  law,  u])on  the  facts 
contained  within  the  record,  puts  an  end  to  all  further  litigation  on  account  of  the 
same  matter,  and  becomes  the  law  of  the  case,  which  cannot  be  changed  or  altered, 
even  by  the  consent  of  the  parties,  and  is  not  only  binding  upon  them,  but  upon  the 
courts  and  juries,  ever  afterwards,  as  long  as  it  shall  remain  in  force  aud  unreversed." 
A  similar  view,  with  the  like  distinction,  was  taken  by  Huston,  J.,  in  Kilhefl'er  v.  Herr, 
17  S.  &  K.  325,  .326.  See  also  to  the  point,  that  the  evidence  is  conclusive,  Shafer  v. 
Stonebraker,  4  G.  &  J.  345  ;  Cist  v.  Zeigler,  16  S.  &  R.  282 ;  Betts  v.  Starr,  5  Conn. 
550,  553  ;  Preston  v.  Harvey,  2  H.  &  Mun.  55;  Estill  v.  Taul,  2  Yerg.  467,  471;  King 
V.  Chase,  15  N.  H.  9.  In  New  York,  as  remarked  by  Savage,  C.  J.,  in  Wood  v.  Jack- 
eon,  8  Wend.  24,  25,  the  decisions  have  not  been  uniform,  nor  is  it  perfectly  clear, 
where  the  weight  of  authority  or  of  argument  lies.  But  in  the  later  case  of  Lawrence 
V.  Hunt,  10  Wend.  83,  84,  the  learned  judge,  who  delivered  the  opinion  of  the  court, 
seemed  inclined  in  favor  of  the  conclusiveness  of  the  evidence.  See,  to  the  same  point, 
Hancock  v.  Welsh,  1  Stark.  347;  Whately  v.  Menheim,  2  Esp.  608;  Strutt  r.  Bov- 
ingdon,  5  Esp.  56-59  ;  Rex  v.  St.  Pancras,  Pcake's  Cas.  220  ;  Duchess  of  Kingston's 
Case,  20  Howell's  St.  Tr.  538  ;  Bird  v.  Randall,  3  Burr.  1353.  The  contrary  decision 
of  Vooght  V.  Winch,  2  B.  &  Aid.  662,  was  cited,  but  without  being  approved,  by  Best, 
C.  J.,  in  Stafford  v.  (-lark,  1  C.  &  P.  405,  and  was  again  discussed  in  the  same  case,  2 
Bing.  377  ;  but  each  of  the  learned  judges  expressly  declined  giving  any  opinion  on  the 
point.  This  case,  however,  is  reconciled  with  other  P^nglish  cases,  by  Mr.  Smith,  on 
the  ground  that  it  means  no  more  than  this,  that  where  the  party  might  plead  the  re- 
«5ord  by  estoppel,  but  does  not,  he  waives  its  conclusive  character.  See  2  Smith's  Lead- 
ing Cases,  434,  444,  445.  The  learned  author,  in  the  note  here  referred  to,  has  reviewed 
the  doctrine  of  estoppels  in  a  masterly  manner.  The  judgment  of  a  court-martial,  when 
offered  in  evidence  in  support  of  a  justification  of  imprisonment,  by  reason  of  military 
disobedience  and  misconduct,  is  not  regarded  as  conclusive  ;  for  the  special  reasons 
stated  by  Lord  Mansfield  in  Wall  v.  McXamara,  1  T.  R.  536.  See  ace.  Hannaford  v. 
Hunn,  2  C.  &  P.  148, 


CHAP,    v.] 


RECORDS    AND    JUDICIAL    WRITINGS. 


669 


property  or  transaction  in  controversy  in  the  action,  to  which  it 
is  set  up  in  bar;  and  the  question  of  identity,  thus  raised,  is  to 
be  determined  by  the  jury,  upon  the  evidence  adduced.  ^  And 
though  the  declaration  in  the  former  suit  may  be  broad  enougli  to 
incUide  the  subject-matter  of  the  second  action,  yet  if,  u|)on  the 
whole  record,  it  remains  doubtful  whether  the  same  subject-mat- 
ter were  actually  passed  upon,  it  seems  that  parol  evidence  may 
be  received  to  show  the  truth.2(a)     So,  also,  if  the  pleadings  pre- 

1  So,  if  a  deed  is  admitted  in  pleading,  proof  of  the  identity  may  still  be  required. 
Johnston  v.  Cottingham,  1  Armst.  Macartn.  &  Ogle,  11.  And  see  Garrott  v.  Johnson, 
11  G.  &  J.  173. 

2  It  is  obvious  that,  to  prove  what  was  the  point  in  issue  in  a  previous  action  at 
common  law,  it  is  necessary  to  produce  the  entire  record.  Foot  v.  Glover,  4  Blackf. 
313.     And  see  Morris  v.  Keyes,  1  Hill,  540  ;  Glascock  v.  Hays,  4  Dana,  59. 


(a)  A  verdict  and  judgment  for  B  in 
an  action  at  law  brought  against  him  by 
A,  for  obstructing  the  How  of  water  to  A's 
mill,  in  which  action  B  put  in  the  plea  of 
"  not  guilty,"  and  a  specification  of  de- 
fence denying  botli  A's  right  and  any  in- 
jury thereto,  are  no  bar  to  a  suit  in  equity 
by  A  against  B  to  restrain  such  obstruc- 
tion, unless  it  appear  either  by  the  record 
or  by  extrinsic  evidence,  that  B  prevailed 
in  the  action  at  law  because  A  had  failed 
to  satisfy  the  jury  that  B  had  violated  A's 
rights.  McDowell  v.  Langdon,  3  Gray, 
513.  To  prove  that  the  24th  day  of  a  cer- 
tain month  was  a  reasonable  time  in  which 
to  perform  a  certain  contract,  the  record 
of  a  former  judgment  between  the  same 
parties,  establishing  that  the  22d  day  of 
the  same  month  was  within  a  reasonable 
time  is  not  competent  evidence.  Sage  v. 
McAlpin,  11  Cush.  165. 

A  verdict  in  favor  of  the  defendant  in 
an  action  against  one  of  two  joint  tres- 
passers, which  would  be  conclusive  evi- 
dence in  a  subsequent  action  against  him 
by  the  same  plaintilf,  will  not  be  conclu- 
sive in  an  action  by  such  plaintilf  against 
the  co-trespasser.  S[)rague  v.  Oakes,  19 
Pick.  455-458.  Judgment  and  satisfac- 
tion in  an  action  on  a  bond  given  to  dis- 
solve an  attachment  constitute  no  <lefence 
to  an  action  on  a  bond  given  to  obtain  a 
review  of  the  action  in  which  the  attach- 
ment was  made,  for  a  breach  of  a  condi- 
tion to  enter  such  review  at  the  next  term 
of  the  court.  Lehan  v.  Good,  8  Cush. 
302-309. 

To  an  action  for  goods  sold,  the  de- 
fendant answered  that  he  had,  in  part 
payment  of  the  price,  given  a  special  prom- 
ise to  pay  certain  debts  of  the  plaintiff, 
and  had  performed  that  promise,  and  that 
he  had  otherwise  paid  the  remainder  of 


the  price.  The  defendant  recovering  in 
this  action,  the  plaintiff  brought  an  action 
on  the  special  promise,  and  it  was  held 
that  the  judgment  for  the  defendant  in 
the  former  action  was  no  bar  to  the  sub- 
sequent action  on  the  special  promise. 
Harding  v.  Hale,  2  Gray,  399,  400.  A 
having  contracted  to  convey  land  to  B, 
conveyed  it  to  C.  B  brought  a  bill  in 
equity  against  A  and  C  for  a  specific  per- 
formance of  the  contract,  but  judgment 
was  rendered  thereon  for  the  respond- 
ents, A  and  C.  B  subsequently  brought 
an  action  at  law  against  A  to  recover 
damages  for  the  breach  of  the  contract, 
and  it  was  held  that  the  judgment  in 
the  equity  suit  was  no  bar  to  the  action 
at  law.  Buttrick  v.  Holden,  8  Cush.  233- 
236. 

A  petitioner  for  partition,  claiming  title 
under  a  judgment,  may  show  by  parol 
evidence  that  his  name  was  incorrectly 
stated  in  the  judgment,  through  mistake  ; 
and  it  is  not  necessary  for  this  purpose 
that  the  mistake  should  be  previously  cor- 
rected on  the  I'ecord.  And  where  there  is 
a  difference  between  the  descrii)tion  of  tlie 
land  of  which  partition  is  demanded  in  a 
petition  for  partition,  and  the  description 
of  land  in  a  judgment  under  which  the 
petitioner  claims  title,  he  may  show  by 
parol  that  the  land  described  in  both,  is 
the  same ;  and  if  he  establishes  this  fact, 
then  the  former  judgment  is  conclusive 
evidence  of  his  title  thereto.  Wood  v.  Le 
Baron,  8  Cush.  (Mass.)  471,  473;  Root 
V.  Fellowes,  6  Cush.  (Ma.ss.)  29;  Wash- 
ington Steam  Packet  Co.  v.  Sickles,  24 
How.  333  ;  White  v.  Chase.  128  Mass. 
158  ;  Clapp  v.  Herrick,  129  Id.  292 ; 
Drake  v.  Merrill,  2  Jones,  L.  368.  Cf. 
Churchill  v.  Holt,  127  Mass.  165. 


670  LAW    OF    EVIDENCE.  [PART    III. 

sent  several  distinct  propositions,  and  the  evidence  may  be  re- 
ferred to  either  or  to  all  with  the  same  propriety,  the  judgment 
is  not  conclusive,  but  only  prima  facie  evidence  upon  any  one  of 
the  propositions,  and  evidence  aliunde  is  admissible  to  rebut  it.^ 
Thus  where  the  plaintiff  in  a  former  action  declared  upon  a  prom- 
issory note,  and  for  goods  sold,  but  upon  executing  the  writ  of 
inquiry,  after  judgment  by  default,  he  was  not  prepared  with  evi- 
dence on  the  count  for  goods  sold,  and  therefore  took  his  damages 
only  for  the  amount  of  the  note ;  he  was  admitted,  in  a  second 
action  for  the  goods  sold,  to  prove  the  fact  by  parol,  and  it  was 
held  no  bar  to  the  second  action.*  And  upon  the  same  principle, 
if  one  wrongfully  take  another's  horse  and  sell  him,  applying  the 
money  to  his  own  use,  a  recovery  in  trespass,  in  an  action  by  the 
owner  for  the  taking,  would  be  a  bar  to  a  subsequent  action  of 
assumpsit  for  the  money  received,  or  for  the  price,  the  cause  of 
action  being  proved  to  be  the  same.  ^(6)     But  where,  from  the 

^  Henderson  v.  Kenner,  1  Eichardson,  474. 

<  Seddon  v.  Tutop,  6  T.  R.  608  ;  Hadley  v.  Green,  2  Tyrwh.  390.  See  ace.  Bridge 
V.  Gray,  14  Pick.  55  ;  Webster  v.  Lee,  5"j\Iass.  334  ;  Piavee  v.  Farmer,  4  T.  R.  146  ; 
Thorpe  v.  Cooper,  5  Bing.  116  ;  Phillips  v.  Berick,  16  Johns.  136.  But  if  the  jury 
have  passed  upon  the  claim,  it  is  a  bar,  though  they  may  have  disallowed  it  for  want 
of  sufficient  evidence.  Stafford  v.  Clark,  2  Bing.  377,  382,  per  Best,  C.  J.  ;  Phillips 
V.  Berick,  supra,  (c).  So,  if  the  fact  constituting  the  basis  of  the  claim  w-as  proved, 
among  other  things,  before  an  arbitrator,  but  he  awarded  no  damages  for  it,  none  hav- 
ing been  at  that  time  expressly  claimed.  Dunn  v.  Murray,  9  B.  &  C.  780.  So,  if  he 
sues  for  jiart  only  of  an  entire  and  indivisible  claim  ;  as,  if  one  labors  for  another  a 
year,  on  the  same  hiring,  and  sues  for  a  month's  wages,  it  is  a  bar  to  the  whole.  Jlil- 
ler  V.  Covert,  1  Wend.  487.  But  it  seems  that,  generally,  a  running  account  for  goods 
sold  and  delivered  does  not  constitute  an  entire  demand.  Badger  v.  Titcorab,  15  Pick. 
415.  Contra,  Guernsey  v.  Carver,  8  Wend.  492.  So,  if,  having  a  claim  for  a  greater 
amount  consisting  of  several  distinct  particulars,  he  sues  in  an  inferior  court,  and  takes 
judgment  for  a  less  amount.  Bagot  v.  Williams,  3  B.  &  C.  235.  So,  if  he  obtains  an 
interlocutory  judgment  for  his  whole  claim,  but,  to  avoid  delay,  takes  a  rule  to  com- 
pute on  one  item  only,  and  enters  a  nolle  prosequi  as  to  the  other.  Bowden  v.  Home, 
7  Bing.  716. 

5  17  Pick.  13,  per  Putnam,  J.;  Young  v.  Black,  7  Cranch,  565;  Livemiore  t>. 
Herschell,  3  Pick.  33.  Whether  parol  evidence  would  be  admissible,  in  such  case,  to 
prove  that  the  damages  awarded  in  trespass  were  given  merely  for  the  tortious  taking, 
without  including  the  value  of  the  goods,  to  which  no  evidence  had  been  offered, 
quaere;  and  see  Loomis  v.  Green,  7  Greenl.  386. 

{h)  Norton  v.  Doherty,  3  Gray  (Mass.),  against  the  respondents  jointly  and  sever- 

372.     The  assignees  of  an  insolvent  debtor  ally  ;  and  the  court,  after  a  hearing  upon 

brought  a  bill  in  equity  to  set  aside  con-  the  merits,  decreed  that  the  demands  set 

veyances  of  property  made  by  the  debtor  up  by  the   respondents,  in  their   several 

to   the   respondents,  as  made   and  taken  answers,    were  justly  due  them   from  the 

either  without  consideration  ai.d  in  fraud  insolvent,    and   that   the   conveyances    of 

of  creditors,  or  by  way  of  unlawful  prefer-  property   in    payment    thereof   were    not 

ence,  contrary  to  the  insolvent  laws.     The  made  in   violation  of  the  insolvent  laws, 

bill  charged  "the  respondents  in  the  com-  and   dismissed   the   bill.      The    assignees 

men  form  with  combining  and  confederat-  subsequently  brought  an  action  of  trover 

ing  with  divers  other  persons  to  the  com-  against    one    of    the    respondents  in  the 

plainants  unknown,  and  prayed  for  relief  equity  suit,  for  the  same  property,  and  it 


(c)  Lewis  V.  Lewis,  106  Mass.  309. 


CHAP.    V] 


RECORDS    AND    JUDICIAL   WRITINGS. 


671 


nature  of  the  two  actions,  the  cause  of  action  cannot  be  the  same 
in  both,  no  averment  will  be  received  to  the  contrary.     Therefore, 


was  held  that  the  decree  in  that  suit  was 
a  bar  to  the  action  of  trover.  Bigeh)w  v. 
Winsor,  1  Gray,  299,  303  ;  Shaw,  C.  J., 
in  delivering  the  opinion  of  the  court  in 
this  case,  said  :  "  One  valid  judgment  by 
a  court  of  competent  jurisdiction,  between 
the  same  parties,  upon  considerations  as 
well  of  justice  as  of  public  policy,  is  lield 
to  bo  conclusive,  except  where  a  review, 
an  appeal,  or  rehearing  in  some  form,  is 
allowed  and  regulated  by  law.  No  man 
is  to  be  twice  vexed  with  the  same  contro- 
versy. 'Interest  reipublicae  ut  finis  sit 
litiura.' 

"To  ascertain  whether  a  past  judg- 
ment is  a  bar  to  another  suit,  we  are  to 
consider,  first,  whether  the  subject-matter 
of  legal  controversy  which  is  proposed  to 
be  brought  before  any  court  for  adjudica- 
tion, has  been  drawn  in  question,  and 
within  the  issue  of  a  former  judicial  pro- 
ceeding wliich  has  terminated  in  a  regular 
judgment  on  the  merits,  so  that  the  whole 
question  may  have  been  determined  by 
that  adjudication  ;  secondly,  whether  the 
former  litigation  was  between  the  same 
parties,  in  the  same  right  of  capacity  liti- 
gating in  the  subsequent  suit,  or  their 
privies  respectively,  claiming  through  or 
under  them,  and  bound  and  estopped  by 
that  which  would  bind  and  estop  those 
parties  ;  and,  thirdly,  whether  the  former 
adjuilication  was  had  before  a  court  of 
competent  jurisdiction  to  hear  and  decide 
on  the  whole  matter  of  controversy,  era- 
braced  in  the  subsequent  suit. 

"  It  is  no  objection  that  the  former  suit 
embraced  more  subjects  of  controversy,  or 
more  matter  than  the  present ;  if  the 
entire  subject  of  the  present  controversy 
was  embraced  in  it,  it  is  sufficient,  it  is 
res  j  udicata. 

"Nor  is  it  necessary  that  the  parties 
should  be  in  all  respects  the  same.  If  by 
law  a  judgment  could  have  been  given  in 
that  suit  for  this  plaintiff  against  this  de- 
fendant, for  the  present  cause  of  action,  it 
has  passed  into  judgment.  Suppose  tres- 
pass for  assault  and  battery  against  five, 
and  verdict  and  judgment  for  all  the  de- 
fendants ;  then  a  new  suit  for  the  same 
trespass,  by  the  same  plaintiff,  against 
one  of  the  defendants,  the  former  judg- 
ment is  a  good  bar.  In  actions  of  tort, 
the  cause  of  action  is  several,  as  well  as 
joint ;  and  if,  upon  the  evidence,  one  de- 
fendant was  chargeable  with  the  trespass,  a 
verdict  and  judgment  might  have  been 
rendered  against  him  severally  in  the  first 


suit,  although  the  other  defendants  had  a 

verdict. 

"Nor  is  it  essential  that  the  two  tri- 
bunals should  have  the  same  jurisdiction 
in  other  respects,  ])rovided  the  court  was 
of  competent  jurisdiction  to  adjudicate 
upon  the  entire  matter  in  controversy,  in 
the  subsequent  suit.  Whether  it  be  a 
court  of  law  or  equity,  of  admiralty  or  of 
probate,  if  in  the  matter  in  controversy 
between  the  parties,  with  the  same  object 
in  view,  that  of  remedy  between  them, 
the  court  had  jurisdiction  to  decide,  it  is 
a  legal  adjudication  binding  on  these 
parties." 

To  render  a  foi-mer  judgment  between 
the  same  parties  admissible  in  evidence  in 
another  action  pending  between  them,  it 
must  appear  that  the  fact  sought  to  be 
proved  by  the  record  was  actually  passed 
upon  by  the  jury  in  finding  their  verdict 
in  the  former  suit.  It  is  not  necessary 
that  it  should  have  been  directly  and  spe- 
cifically put  in  issue  by  the  pleadings; 
but  it  is  sufficient  if  it  is  shown  that  the 
question  which  was  tried  in  the  former 
action  between  the  same  parties  is  again 
to  be  tried  and  settled,  in  the  suit  in 
which  the  former  judgment  is  offered  in 
evidence.  And  parol  evidence  is  admissi- 
ble to  show  that  the  same  fact  was  sub- 
mitted to,  and  passed  upon  by,  the  jury  in 
the  former  action  ;  because,  in  many 
cases,  the  record  is  so  general  in  its  char- 
acter, that  it  could  not  be  known,  without 
the  aid  of  such  proof,  what  the  precise 
matter  of  controversy  was  at  the  trial  of 
the  former  action.  Thus,  where  the  fact 
sought  to  be  established  by  the  plaintiffs 
in  a  suit  is  the  existence  of  a  co-partner- 
ship between  the  defendants,  under  a  cer- 
tain name,  a  former  judgmeiit  recovered 
by  the  same  plaintiffs  against  the  same 
defendants,  as  co-partners,  under  such 
name,  on  a  note  given  at  the  same  time 
with  the  one  in  suit,  is  admissible,  al- 
though not  conclusive,  evidence  of  that 
fact.  Dutton  v.  Woodman,  9  Cush.  25.5, 
261  ;  Eastman  v.  Cooper,  15  Pick.  276, 
279,  285.  But,  in  an  action  of  replevin 
for  a  piano,  a  former  judgment  between 
the  same  parties,  in  an  action  of  trespass 
qiiare  claiisiaii,  in  which  the  taking  away 
of  the  same  jiiano  was  alleged  by  way  of 
aggravation,  is  not  conclusive  as  to  the 
ownership  of  the  piano  ;  as  the  question 
of  the  title  to  the  piano  was  only  indi- 
rectly involved.  Gilbert  v.  Thompson,  9 
Cusli.  348,  350;  Potter  v.  Baker,  19  N  H. 


672 


LAW    OP    EVIDENCE. 


[part  in. 


in  a  writ  of  right,  a  plea  in  bar  that  the  same  title  had  been  the 
sole  subject  of  litigation  in  a  former  action  of  trespass  quare 
elausum  fregit,  or  in  a  former  writ  of  entry,  between  the  same 
parties,  or  others  privy  in  estate,  was  held  to  be  a  bad  plea.^ 
Whether  the  judgment  in  an  action  of  trespass,  upon  the  issue 
of  liberum  tenementum,  is  admissible  in  a  subsequent  action  of 
ejectment  between  the  same  parties,  is  not  perfectly  clear;  but 
the  weight  of  American  authority  is  in  favor  of  admitting  the 
evidence.^  (c?) 

s  Arnold  v.  Arnold,  17  Pick.  4  ;  Bates  v.  Thompson,  Id.  14,  n.  ;  Bennett  v.  Holmes, 
1  Dev.  &  Bat.  486. 

^  Hoey  V.  Furman,  1  Barr,  295.  And  see  Meredith  v.  Gilpin,  6  Price,  146  ;  Kerr 
V.  Chess,  7  Watts,  371  ;  Foster  v.  McDivit,  9  Watts,  349. 


166  ;  Lamprey  v.  Nudd,  9  Foster,  299. 
A  judgment  for  the  demandant  in  a  real 
action  with  possession  taken  under  it,  will 
preclude  the  tenant  in  that  action  from 
afterwards  asserting  against  such  demand- 
ant any  personal  property  in  the  buildings 
which  he  had  erected  on  the  land.  Doak 
V.  Wiswell,  33  Me.  355.  See  Small  v.  Leo- 
nard, 26  Vt.  209  ;  Morgan  v.  Barker,  Id. 
602  ;  Briggs  v.  Wells,  12  Barb.  (N.  Y.) 
567.  A  sued  out  a  writ  of  entry  to  fore- 
close a  mortgage  given  by  B  to  secure  the 
payment  of  hve  promissory  notes.  B 
defended,  pleading  the  general  issue,  and 
specifying  certain  grounds  of  defence.  A 
trial  was  had,  and  a  verdict  found  for  A, 
upon  which  conditional  judgment  was 
subsequently  rendered  for  him  ;  and  the 
amount  thereof  not  being  paid,  A  took 
j>ossession  of  the  mortgaged  premises. 
Pending  the  foregoing  pi'oceedings,  A 
brought  an  action  against  B  on  one  of  the 
five  promissory  notes,  and  B  put  in  his 
answer,  defending  on  the  same  grounds  as 
he  had  defended  the  action  on  the  mort- 
gage. The  suit  on  the  note  came  to  trial 
after  judgment  was  entered  in  the  former 
action  ;  and  it  was  held,  that  B  was  es- 
topped by  said  judgment  from  again  avail- 
ing himself  of  tfce  grounds  of  defence  upon 
which  he  liad  before  insisted.  Burke  v. 
Miller,  4  Gray,  114,  116.  See  also  Sargent 
V.  Fitzpatrick,  Id.  511,  514.  A  contracted 
with  B  to  forward  and  deliver  certain 
goods  belonging  to  .A.  B  entrusted  them 
to  a  carrier,  who  failed  to  deliver  them. 
A  brought  trover  against  the  carrier  ;  and 
the  carrier  obtained  in  this  action  a  judg- 
ment on  the  merits  against  A.  B  also 
sued  the  carrier  for  the  non-delivery  of  the 
goods,  and  it  was  held  that  the  judgment 
in  the  suit  brought  by  X  was  a  bar  to  the 
suit  by  B.  Greene  v.  Clarke,  2  Kernan 
(N.  Y.),  343.     To  an  action  by  A  against 


B  on  a  promissory  note  given  by  B  to  A 
in  payment  for  goods,  B  ])leaded  want  of 
consideration  by  reason  of  false  represen- 
tations of  A  concerning  the  value  of  such 
goods.  A  recovered  judgment  for  part 
only  of  the  note.  It  was  held  that  this 
was  a  bar  to  a  subsequent  action  brought 
by  B  against  A  to  recover  damages  for 
such  false  representations.  Burnett  v. 
Smith,  4  Gray,  50.  In  replevin  by  a  ten- 
ant against  liis  landlord,  who  had  dis- 
trained for  rent  in  arrear,  it  was  held  that 
a  verdict  in  summary  proceedings  insti- 
tuted by  the  landlord,  to  remove  the  ten- 
ant for  default  in  the  payment  of  rent, 
that  no  rent  was  due,  was  conclusive  on 
that  point,  —  the  same  rent  being  in  (jues- 
tion  in  both  proceedings.  White  v.  Coats- 
worth,  2  Selden  (N.  Y.),  137.  An  action 
brought  for  a  part  of  an  entire  and  indi- 
visible demand,  and  a  recovery  therein, 
will  bar  a  subsequent  suit  for  the  residue 
of  the  same  demand.  Staples  v.  Goodrich, 
21  Barb.  317  ;  Warren  v.  Comings,  6 
Cush.  103. 

Where  it  appears  at  a  trial  in  this  State 
(New  York),  that,  in  a  former  suit  be- 
tween the  same  parties  in  a  sister  State, 
the  causes  of  action  here  specially  declared 
on,  and  all  growing  out  of  the  same  §ub- 
ject-matter,  could  have  been  proved  in 
that  suit,  and  that  the  same  proof  offered 
here  was,  in  the  former  suit,  properlj'  in- 
troduced and  considered  on  the  merits, 
and  judgment  rendered  for  the  defendant, 
such  judgment  is  a  bar  to  the  second  suit. 
Baker  v.  Rand,  13  Barb.  152. 

(d)  So  where,  from  the  nature  of  the 
case,  a  certain  point  must  necessarily  have 
been  decided,  evidence  is  not  admissible 
to  show  that  it  was  not  submitted  to  the 
jury.  Butler  v.  Suffolk  Glass  Company, 
126  Mass.  512. 


CHAP,    v.]  RECORDS    AND    JUDICIAL   WRITINGS.  673 

§  533.  Former  recovery  in  actions  of  tort.  The  cffoct  of  former 
recovery  has  been  very  much  discussed,  in  the  castjs  where  differ- 
ent actions  in  tort  have  successively  been  brought^  in  regard  to  the 
same  chattel ;  ns,  for  example,  an  action  of  trover,  ]>rought  after 
a  judgment  in  trespass.  Here,  if  title  to  the  property  was  set  up 
by  the  defendant  in  the  first  action,  and  it  was  found  for  him,  it 
is  clearly  a  bar  to  a  second  action  for  the  same  chattel  ;i  even 
though  brought  against  one  not  a  party  to  the  former  suit,  but  an 
accomplice  in  the  original  taking.^  So,  a  judgment  for  the  de- 
fendant in  trover,  upon  trial  of  the  merits,  is  a  bar  to  an  action 
for  money  had  and  received,  for  the  money  arising  from  the  sale 
of  the  same  goods.  ^  But,  whether  the  plaintiff,  having  recovered 
judgment  in  trespass,  without  satisfaction,  is  thereby  barred  from 
afterwards  maintaining  trover  against  another  person  for  the 
same  goods,  is  a  point  upon  which  there  has  been  great  diversity 
of  opinion.  On  the  one  hand,  it  is  said  that,  by  the  recovery  of 
judgment  in  trespass  for  the  full  value,  the  title  to  the  property 
is  vested  in  the  defendant,  the  judgment  being  a  security  for  the 
price ;  and  that  the  plaintiff  cannot  take  it  again,  and  therefore 
cannot  recover  the  value  of  another.'*  On  the  other  hand,  it  is 
argued,  that  the  rule  of  transit  in  rem  judicatam  extends  no  far- 
ther than  to  bar  another  action  for  the  same  cause  against  the 
same  party  ;^  that,  on  principle,  the  original  judgment  can  imply 
nothing  more  than  a  promise  by  the  defendant  to  pay  the  amount, 
and  an  agreement  by  the  plaintiff  that,  upon  payment  of  the 
money  by  the  defendant,  the  chattel  shall  be  his  own ;  and  that 
it  is  contrary  to  justice  and  the  analogies  of  the  law,  to  deprive 
a  man  of  his  property  without  satisfaction,  unless  by  his  express 
consent.  "  Solutio  pretii  emptionis  loco  habetur."  The  weight 
of  authority  seems  in  favor  of  the  latter  opinion.^ 

1  Putt  V.  Roster,  2  Mod.  318;  3  Mod.  1,  s.  c.  nom.  Putt  v.  Rawstern  ;  see  2  Show. 
211;  Skin.  40,  57  ;  s.  c.  T.   Raym.  472. 

2  Ferrers  v.  Arden,  Cro.  El.  668  ;  s.  c.  6  Co.  7. 

3  Kitchen  v.  Cuiiipbell,  3  Wils.  304  ;  s.  c.  2  W.  Bl.  827. 

*  Broome  v.  Wooton,  Yelv.  67  ;  Adams  v.  Broughton,  2  Stra.  1078  ;  s.  c.  Andrews, 
18  ;  Wliite  v.  Pliilbrick,  5  Greenl.  147  ;  Rogers  v.  Moore,  1  Rice,  60. 

6  Drake  v.  Mitchell,  3  East,  258  ;  Campbell  t;.  Phelps,  1  Pick.  70,  per  Wilde,  J. 

6  Putt  V.  Rawsteni,  3  Mod.  1  ;  Jenk.  Cent.  p.  189  ;  1  Shep.  Touchst.  227  ;  More 
i;  Watts,  12  Mod.  428;  .s.  c.  1  Ld.  Raym.  614;  Lutterell  v.  Reynell,  1  Mod.  2S2 
Bro.  Abr.  tit  Jiulgm.  pi.  98  ;  Morton's  Case,  Cro.  El.  30 ;  Cocke  v.  Jennor,  Hob.  66 
Livingston  v.  Bishop,  1  Johns.  290;  Rawson  v.  Turner,  4  Johns.  425;  2  Kent 
Comin.  388  ;  Curtis  v.  Groat,  6  Johns.  168  ;  Corbett  et  al.  v.  Barnes,  W.  Jones,  377 
Cro.  Car.  443  ,  s.  c.  7  Vin.  Abr.  341,  pi.  10  ;  Barb  v.  Fish,  5  West.  Liw  Journ.  278 
The  foregoing  authorities  are  cited  as  establishing  principles  in  opposition  to  the  doc 
trine  of  Broome  v.  Wooton.  The  following  eases  are  direct  adjudicirtions  to  the  con 
trary  of  that  case.  Sanderson  v.  Caldwell,  2  Aiken,  195  ;  Osterhout  v.  Roberts,  8 
Cowen,  43  ;  Elliot  v.  Porter,  5  Dana,  299.     See  also  Campbell  v.  Phelps,  1  Pick.  70, 

VOL.  I.  —  43 


674  LAW   OF   EVIDENCE.  [PART   III. 

§  534.  Judgment  conclusive,  if  point  at  issue  was  necessarily  in- 
cluded. It  is  not  necessary,  to  the  conclusiveness  of  the  former 
judgment,  that  issue  should  have  been  taken  upon  the  precise  p)oint 
which  is  controverted  in  the  second  trial ;  it  is  sufficient,  if  that 
point  was  essential  to  the  finding  of  the  former  verdict.  Thus, 
where  the  parish  of  Islington  was  indicted  and  convicted  for  not 
repairing  a  certain  highway,  and  afterwards  the  parish  of  St. 
Pancras  was  indicted  for  not  repairing  the  same  highway,  on  the 
ground  that  the  line  dividing  the  two  parishes  ran  along  the 
middle  of  the  road ;  it  was  held,  that  the  f ori^ier  record  was  ad- 
missible and  conclusive  evidence  for  the  defendants  in  the  latter 
case,  to  show  that  the  road  was  wholly  in  Islington;  for  the 
jury  must  have  found  that  it  was  so,  in  order  to  find  a  verdict 
against  the  defendants.'^ 

§  535.  "Who  are  parties.  We  have  already  observed,  in  general, 
i\\2ii parties  in  the  larger  legal  sense,  are  all  persons  having  a  right 
to  control  the  proceedings,  to  make  defence,  to  adduce  and  cross- 
examine  witnesses,  and  to  appeal  from  the  decision,  if  any  appeal 
lies.  Upon  this  ground,  the  lessor  of  the  plaintiff  in  ejectment, 
and  the  tenant,  are  the  real  parties  to  the  suit,  and  are  concluded 
in  any  future  action  in  their  own  names,  by  the  judgment  in  that 
suit.^  So,  if  there  be  atrial  between  B. 's  lessee  and  E.,  M'ho 
recovers  judgment ;  and  afterwards  another  trial  of  title  to  the 
same  lands,  between  E.'s  lessee  and  B.,  the  former  verdict  and 


per  Wilde,  J.;  Claxton  v.  Swift,  2  Show.  441,  494;  Jones  v.  McNeil,  2  Bail.  466; 
Cooper  V.  Shepherd,  2  M.  G.  &  S.  266.  The  just  deduction  from  all  the  authorities, 
as  well  as  the  right  conclusion  upon  principle,  seems  to  he  this,  —  that  the  judgment 
in  trespass  or  trover  will  not  transfer  the  title  of  the  goods  to  tlie  defendant,  although 
it  is  pleadable  in  bar  of  any  action  afterwards  brought  by  the  same  plaintiff,  or  those 
in  privily  with  him,  against  the  same  defendant,  or  those  in  privity  with  him.  See 
3  Am.  Law  Mag.  pp.  49-57.  And  as  to  the  original  parties,  it  seems  a  just  rule,  appli- 
cable to  all  personal  actions,  that  wherever  two  or  more  are  liable  jointly  and  not  sever- 
ally, a  judgment  against  one,  though  without  satisfaction,  is  a  bar  to  another  action 
against  any'^of  the  others  for  the  same  cause  ;  b\it  it  is  not  a  bar  to  an  action  against  a 
stranger.  As  far  as  an  action  in  the  form  of  tort  can  be  said  to  be  exclusively  joint  in 
its  nature,  this  rule  may  govern  it,  but  no  farther.  This  doctrine,  as  applicable  to 
joint  contracts,  has  been  recently  discussed  in  England,  in  the  case  of  King  v.  Hoare, 
13  M.  &  W.  494,  in  which  it  was  held  that  the  judgment  against  one  alone  was  a  bar  to 
a  subsequent  action  against  the  other. 

■?  Rex  V.  St.  Pancras,  Peake's  Cas.  219  ;  2  Saund.  159,  note  (10),  by  Williams.  And 
see  Andrews  v.  Brown,  3  Cush.  130.  So,  where,  upon  a  complaint  for  flowing  the 
plaintitf  s  lands,  under  a  particular  statute,  damages  wei'e  awarded  for  the  past,  and  a 
prospective  assessment  of  damages  made  for  the  future,  flowage ;  upon  a  subsequent 
application  for  an  increase  of  the  assessment,  the  defendant  was  precluded  from  setting 
up  a  right  in  himself  to  flow  the  land,  for  the  right  must  necessarily  have  been  deter- 
mined in  the  previous  proceedings.     Adams  v.  Pearson,  7  Pick.  341. 

8  Doe  V.  Huddart,  2  Cr.  M.  &  R.  316,  322  ;  Doe  v.  Preece,  1  Tvrw.  410  ;  Aslin  v. 
Parkin,  2  P.urr.  665  ;  Wright  v.  Tatham,  1  Ad.  &  El.  3,  19  ;  Bull.  N.  P.  232  ;  Gmvea 
V.  Joice,  5  Cowen,  261,  anil  cases  there  cited. 


CHAP,    v.]  RECORDS   AND   JUDICIAL   WRITINGS.  675 

judgment  will  be  admissible  in  evidence  in  favor  of  E, 's  lessee 
against  B.  ;  for  the  real  jiarties  in  both  cases  were  B.  and  E." 

§  536.  Privies.  The  case  of  privies,  which  has  already  been 
mentioned,  is  governed  by  principles  similar  to  those  which  have 
been  stated  in  regard  to  admissions  ;i  the  general  doctrine  being 
this,  that  the  person  who  represents  another,  and  the  ]jers(jn  who 
is  represented,  have  a  legal  identity;  so  that  whatever  binds  the 
one,  in  relation  to  the  subject  of  their  common  interest,  binds  the 
other  also.  Thus,  a  verdict  and  judgment  for  or  against  the  an- 
cestor bind  the  heir.^  So,  if  several  successive  remainders  are 
limited  in  the  same  deed,  a  judgment  for  one  remainder-man  is 
evidence  for  the  next  in  succession,  ^  But  a  judgment,  to  which 
a  tenant  for  life  was  a  party,  is  not  evidence  for  or  against  the 
reversioner,  unless  he  came  into  the  suit  upon  aid  j^rayer.^  So 
an  assignee  is  bound  by  a  judgment  against  the  assignor,  prior  to 
the  assignment.^  There  is  the  like  privity  between  the  ancestor 
and  all  claiming  under  him,  not  only  as  heir,  but  as  tenant  in 
dower,  tenant  by  the  curtesy,  legatee,  devisee,  &c.^  A  judgment 
of  ouster,  in  a  quo  warranto,  against  the  incumbent  of  an  office  is 
conclusive  evidence  against  those  who  derive  their  title  to  office 
under  him.'''  Where  one  sued  for  diverting  water  from  his  works 
and  had  judgment;  and  afterwards  he  and  another  sued  the  same 
defendants  for  a  similar  injury ;  the  former  judgment  was  held 
admissible  in  evidence  for  the  plaintiffs,  being  prima  facie  evi- 
dence of  their  privity  in  estate  with  the  plaintiff'  in  the  former 
action.^  The  same  rule  applies  to  all  grantees,  they  being  in 
like  manner  bound  by  a  judgment  concerning  the  same  land,  re- 
covered by  or  against  their  grantor,  prior  to  the  conveyance.^ 

§  537.  Judgments  in  criminal  cases.  Upon  the  foregoing  prin- 
ciples, it  is  obvious  that,  as  a  general  rule,  a  verdict  and  judg- 
ment in  a  criminal  case,  though  admissible  to  establish  the  fact  of 
the  mere  rendition  of  the  judgment,  cannot  be  given  in  evidence 

3  Bull.  N.  P.  232 ;  Calhoun  v.  Dunning,  4  Dall.  120.  So,  a  judgment  in  trespass 
against  one  who  justifies  as  the  servant  of  J.  S.  is  evidence  against  another  defendant 
in  another  action,  it  appearing  that  he  also  acted  by  the  command  of  J.  S.,  who  was 
considered  the  real  party  in  botli  cases.     Kiuuersly  r.  Orpe,  2  Doui^.  517  •  1  Dou"   56 

1  Supra,  §§  180,  189,  523.  o  '  »•       • 

2  Locke  V.  Norborne,  3  Mod.  141. 

8  Bull.  N.  P.  232  ;  Pyke  v.  Crouch,  1  Ld.  Raym.  730. 

4  Bull.  N.  P.  232. 

5  Adams  v.  Barnes,  17  Mass.  365. 

6  Locke  V.  Norborne,  3  Mod.  141  ;  Outram  v.  Morewood,  3  East,  353. 

7  Rex  V.  Mayor,  &c.  of  York,  5  T.  R.  66,  72,  76  ;  Bull.  N.  P.  231  ;  Rex  v   Hebden 
2Stra.  1109,  n.  (1).  ' 

^  Blakemore  v.  Glamorganshire  Canal  Co.,  2  C.  JI.  &  R.  133. 

9  Foster  v.  E.  of  Derby,  1  Ad.  &  El.  787,  per  Littledale,  J. 


676  LAW   OF   EVIDENCE.  [PART   III. 

in  a  civil  action,  to  establish  the  facts  on  which  it  was  rendered.'^  (a) 
If  the  defendant  was  convicted,  it  may  have  been  npon  the  evi- 
dence of  the  very  plaintiff  in  the  civil  action;  and  if  he  was  ac- 
quitted, it  may  have  been  by  collusion  with  the  prosecutor.  But 
beside  this,  and  upon  more  general  grounds,  there  is  no  mutu- 
ality; the  parties  are  not  the  same;  neither  are  the  rules  of  deci- 
sion and  the  course  of  proceeding  the  same.  The  defendant  could 
not  avail  himself,  in  the  criminal  trial,  of  any  admissions  of  the 
plaintiff  in  the  civil  action ;  and,  on  the  other  hand,  the  jury  in 
the  civil  action  must  decide  upon  the  mere  preponderance  of  evi- 
dence, whereas,  in  order  to  a  criminal  conviction,  they  must  be 
satisfied  of  the  party's  guilt,  beyond  any  reasonable  doubt.  The 
same  principles  render  a  judgment  in  a  civil  actioyi  inadmissible 
evidence  in  a  criminal  prosecution. ^ 

^  Mead  v.  Boston,  3  Cush.  404.  In  one  case,  it  was  held,  that  the  deposition  of 
a  witness,  taken  before  the  coroner,  on  an  inquiry  touching  the  death  of  a  person  killed 
by  a  collision  between  two  vessels,  was  receivable  in  evidence,  in  an  action  for  the 
negligent  management  of  one  of  them,  if  the  witness  be  shown  to  be  beyond  sea.  Sills 
V.  Brown,  9  C.  &  P.  601,  per  Coleridge,  J.  But  quaere,  and  see  2  Phil.  Evid.  74,  75  ; 
infra,  §  553. 

2  1  Bull.  N.  P.  233 ;  Rex  v.  Boston,  4  East,  572  ;  Jones  v.  White,  1  Stra.  68,  per 
Pratt,  J.  Some  of  the  older  authorities  have  laid  much  stress  upon  the  question, 
whether  the  plaintiff  in  the  civil  action  was  or  was  not  a  witness  on  the  indictment. 
Upon  which  Parke,  B. ,  in  Blakemore  v.  Glamorganshire  Canal  Co.,  2  C.  M.  &  R.  139, 
remarked  as  follows  ;  "  The  case  being  brought  within  the  general  rule,  that  a  verdict 
on  the  matter  in  issue  is  evidence  for  and  against  parties  and  privies,  no  exception  can 
be  allowed  in  the  particular  action,  on  the  ground  that  a  circumstance  occurs  in  it, 
which  forms  one  of  the  reasons  why  verdicts  between  different  parties  are  held  to  be 
inadmissible,  any  more  than  the  absence  of  all  such  circumstances,  in  a  particular  case, 
would  be  alloAved  to  form  an  exception  to  the  general  rule,  that  verdicts  between  other 
parties  cannot  be  received.  It  is  much  wiser,  and  more  convenient  for  the  adminis- 
tration of  justice,  to  abide  as  much  as  possible  by  general  rules."  A  record  of  judg- 
ment in  a  criminal  case,  upon  a  plea  of  "guilty"  is  admissible  in  a  civil  action  against 
the  party,  as  a  solemn  judicial  confession  of  the  fact ;  and,  according  to  some  authori- 
ties, it  is  conclusive.  But  its  conclusiveness  has  since  been  doubted  ;  for  the  plea  may 
have  been  made  to  avoid  expense.  See  Phil.  &  Am.  on  Evid.  523,  n.  (4);  2  Phil.  Evid. 
25;  Bradley  f.  Bradley,  2  Fairf.  367;  Reg.  v.  Moreau,  12  Jur.  626;  11  Q.  B.  1028; 
Clark  V.  Irvin,  9  Ham.  131.  But  the  plea  of  nolo  contendere  is  an  admission  for  that 
trial  oidy,  and  is  not  admissible  in  a  subsequent  action.  Com.  v.  Horton,  9  Pick.  206  ; 
Guild  V.  Lee,  3  Law  Reporter,  p.  433 ;  supra,  §§  179,  216.  In  Reg.  v.  Moreau,  which 
was  an  indictment  for  perjury  in  an  affidavit  in  which  the  defendant  had  sworn  that 
the  prosecutor  was  indebted  to  him  in  £40,  and  the  civil  suit  being  submitted  to  arbi- 
tration, the  arbitrator  awarded  that  nothing  was  due,  the  award  was  offered  in  evidence 
against  the  prisoner,  as  proof  of  the  falsity  of  his  affidavit ;  but  the  court  held  it  as 
merely  the  declaration  of  the  arbitrator's  opinion,  and  therefore  not  admissible  in  a 
criminal  proceeding. 

(a)  But  a  judgment  is  admissible  and  certain  property,  is  not  admissible  in  «vi- 

conclusive   evidence   in    another  criminal  dence  to  prove  the  theft,  on  the  trial  of  a 

case  against  the  same  defendant,  as  to  any  receiver  of  that  property,  upon  an  indict- 

facts  decided  in  the  judgment.     Com.  v.  ment  against  him  alone,  which  indictment 

Evans,  101  Mass.  25.     Cf.  Dennis's  Case,  does  not  aver  that  the  thief  has  been  con- 

110  Id.  IS.     The  record  of  the  conviction  victed.     Com.  v.   Elisha,  3  Gray  (Mass.), 

of  a  thief,  on  his  plea  of  "guilty"  to  an  460. 
indictment  against  him  alone  for  stealing 


CHAP,    v.]  RECORDS    AND    JUDICIAL    WRITINGS.  677 

§  538.  Judgments  as  facts.  But,  as  WO  have  before  remarked,-'* 
the  verdict  and  judgment  in  any  case  are  always  admissible  to 
prove  the  fact,  that  the  judgment  was  rendered,  or  the  verdict 
given;  for  there  is  a  material  difference  between  proving  the  ex- 
istence of  the  record  and  its  tenor,  and  using  the  record  as  the 
medium  of  proof  of  the  matters  of  fact  recited  in  it.  In  the  for- 
mer case,  the  record  can  never  be  considered  as  res  inter  alios 
acta  ;  the  judgment  being  a  public  transaction,  rendered  by  public 
authority,  and  being  presumed  to  be  faithfully  recorded.  It  is 
therefore  the  only  proper  legal  evidence  of  itself,  and  is  conclu- 
sive evidence  of  the  fact  of  the  rendition  of  the  judgment,  and  of 
all  the  legal  consequences  resulting  from  that  fact,  whoever  may 
be  the  parties  to  the  suit  in  which  it  is  offered  in  evidence.  Thus, 
if  one  indicted  for  an  assault  and  battery  has  been  acquitted,  and 
sues  the  prosecutor  for  malicious  prosecution,  the  record  of  ac- 
quittal is  evidence  for  the  plaintiff,  to  establish  that  fact,  not- 
withstanding the  parties  are  not  the  same.  But  if  he  were  con- 
victed of  the  offence,  and  then  is  sued  in  trespass  for  the  assault, 
the  record  in  the  former  case  would  not  be  evidence  to  establish 
the  fact  of  the  assault;  for,  as  to  the  matters  involved  in  the 
issue,  it  is  res  inter  alios  acta,  (a) 

§  539.  Same  subject.  The  distinction  between  the  admissibility 
of  a  judgment  as  a  fact,  and  as  evidence  of  ulterior  facts,  may  be 
further  illustrated  by  the  instances  in  which  it  has  been  recog- 
nized. Thus,  a  judgment  against  the  sheriff  for  the  misconduct 
of  his  deputy  is  evidence  against  the  latter  of  the  fact,  that  the 
sheriff  has  been  compelled  to  pay  the  amount  awarded,  and  for 
the  cause  alleged;  but  it  is  not  evidence  of  the  fact  upon  which  it 
was  founded,  namely,  the  misconduct  of  the  deputy,  unless  he  W9,s 
notified  of  the  suit  and  required  to  defend  it.^  So  it  is  in  other 
cases,  where  the  officer  or  party  has  a  remedy  over.^  So,  where 
the  record  is  matter  of  inducement,  or  necessarily  introductory  to 
other  evidence ;  as,  in  an  action  against  the  sheriff  for  neglect, 
in  regard  to  an  execution  ;^  or  to  show  the  testimony  of  a  witness 
upon  a  former  trial;*  or  where  the  judgment  constitutes  one  of 

6  Supra,  §  .'527. 

1  Tyler  v.  Uliner,  12  Mass.  166,  per  Parker,  C.  J. 

2  Kip  V.  Brigham,  6  Johns.  158  ;  7  Johns.  168  ;  Griffin  v.  Brown,  2  Pick.  304  ; 
Weld  V.  Nichols,  17  Pick.  538  ;  Head  v.  McDonald,  7  Monr.  203. 

a  Adams  v.  Balch,  5  Grecnl.  188. 

*  Clarges  v.  Sherwin,  12  Mod.  343  ;  Foster  v.  Shaw,  7  S.  &  K.  156. 

(a)  Whe!i  a  record  is  offered,  simply  to  admissible    witliont   identification   by  the 

prove  that  a  trial  was  had  at  a  certain  person  who  has  the  custody  of  it,  if  suffl- 

date,   and   is  merely  introductory  in   its  cient  parol  evidence  is  given  to  prove  its 

nature,  the  original  file  of  the   record  is  identity.     Phelps  v.  Hunt,  43  Conn.  194. 


678  LAW    OP    EVIDENCE.  [PART   III. 

the  muniments  of  the  party's  title  to  an  estate,  as  where  a  deed 
was  made  under  a  decree  in  chancery,^  or  a  sale  was  made  by  a 
sheriff,  upon  an  execution.^  So,  where  a  party  has  concurrent 
remedies  against  several,  and  has  obtained  satisfaction  upon  a 
judgment  against  one,  it  is  evidence  for  the  others.^  So,  if  one 
be  sued  alone,  upon  a  joint  note  by  two,  it  has  been  held,  that 
the  judgment  against  him  may  be  shown  by  the  defendants,  in 
bar  of  a  second  suit  against  both,  for  the  same  cause,  to  prove 
that,  as  to  the  former  defendant,  the  note  is  extinct.^  So  a  judg- 
ment inter  alios  is  admissible,  to  show  the  character  in  which  the 
possessor  holds  his  lands. ^ 

§  539  a.  Judgment  against  joint  and  several  contractors.  But 
where  the  contract  is  several  as  well  as  joint,  it  seems  that  the 
judgment  in  an  action  against  one  is  no  bar  to  a  subsequent  ac- 
tion against  all ;  nor  is  the  judgment  against  all,  jointly,  a  bar 
to  a  subsequent  action  against  one  alone.  For  when  a  party  en- 
ters into  a  joint  and  several  obligation,  he  in  effect  agrees  that  he 
will  be  liable  to  a  joint  action,  and  to  a  several  action  for  the  debt. 
In  either  case,  therefore,  the  bar  of  a  former  judgment  would  not 
seem  to  apply ;  for,  in  a  legal  sense,  it  was  not  a  judgment  be- 
tween the  same  parties,  nor  upon  the  same  contract.  The  con- 
tract, it  is  said,  does  not  merely  give  the  obligee  an  election  of 
the  one  remedy  or  the  other,  but  entitles  him  at  once  to  both, 
though  he  can  have  but  one  satisfaction.  ^^^ 

§  540.  Foreign  judgments.  In  regard  to  foreign  judgments, 
they  are  usually  considered  in  two  general  aspects:  first,  as  to 
judgments  in  rem  ;  and,  secondly,  as  to  judgments  in  personam. 
The  latter  are  again  considered  under  several  heads :  first,  where 
the  judgment  is  set  up  by  way  of  defence  to  a  suit  in  a  foreign 
tribunal ;  secondly,  where  it  is  sought  to  be  enforced  in  a  foreign 
tribunal  against  the  original  defendant,  or  his  property;  and, 
thirdly,  where  the  judgment  is  either  between  subjects  or  between 
foreigners,  or  between  foreigners  and  subjects.  ^^    But,  in  order  to 

6  Barr  v.  Gratz,  4  Wheat.  213. 

6  Witmer  v.  Schlatter,  2  Rawle,  359  ;  Jackson  v.  Wood,  3  Wend.  27,  34  ;  Fowler 
V.  Savage,  3  Conn.  90,  96. 

7  Farwell  v.  Hilliard,  3  N.  H.  318. 

8  Ward  V.  Johnson,  13  Mass.  148.  See  also  Lechmere  v.  Fletcher,  1  C.  &  M.  623, 
634,  635,  per  Bayley,  B. 

9  Davis  V.  Lowndes,  1  Bintc.  N".  C.  607,  per  Tindal,  C.  J.  See  further,  supra, 
§  527  n  ;  Wells  v.  Compton,  3  Rob.  (La.)  171. 

1"  United  States  v.  Cushnian,  2  Sumn.  426,  437-441,  per  Story,  J.  See  also  Sheehy 
V.  Mandeville,  6  Cranch,  253,  265  ;  Lechmere  v.  Fletcher,  1  C.  &  M.  623,  634,  635, 
per  Bayley,  B.  ;  Kirkpatriek  v.  Stingley,  2  Carter,  269. 

11  In  what  follows  on  the  subject  of  foreign  judgments,  I  have  simply  transcribed 
and  abridged  what  lias  recently  bteen  written  by  Mr.  Justice  Story,  in  his  learned  Com- 
mentaries on  the  Conilict  of  Laws,  ch.  15  (2d  ed. ). 


CHAP,    v.]  RECORDS    AND    JUDICIAL    WKITINGS.  679 

■round  a  proper  ground  of  recognition  of  a  foreign  judgment,  under 
whichsoever  of  these  aspects  it  may  come  to  be  considered,  it  is 
indispensable  to  establish,  that  the  court  which  pronounced  it 
had  a  lawful  jurisdiction  over  the  cause,  over  the  thing,  and  over 
the  parties.  If  the  jurisdiction  fails  as  to  either,  it  is  treated  as 
a  mere  nullity,  having  no  obligation,  and  entitled  to  no  respect 
beyond  the  domestic  tribunals.  ^- (a) 

§  541.  Foreign  judgments  in  rem.  As  to  foreign  judgments  in 
rem,  if  the  matter  in  controversy  is  land,  or  other  immovable 
property,  the  judgment  pronounced  in  iha  forum  rei  sitce  is  held  to 
be  of  universal  obligation,  as  to  all  the  matters  of  right  and  title 
which  it  professes  to  decide  in  relation  thereto.^  "The  same 
principle,"  observes  Mr.  Justice  Story,^  "is  applied  to  all  other 
cases  of  proceedings  iu  rem,  where  the  subject  is  movable  property, 
within  the  jurisdiction  of  the  court  pronouncing  the  judgment. ^ 
Whatever  the  court  settles  as  to  the  right  or  title,  or  whatever 
disposition  it  makes  of  the  property  by  sale,  revendication,  trans- 
fer, or  other  act,  will  be  held  valid  in  every  other  country,  where 
the  same  question  comes  directly  or  indirectly  in  judgment  before 
any  other  foreign  tribunal.  This  is  very  familiarly  known  in  the 
cases  of  proceedings  in  rem  in  foreign  courts  of  admiralty,  whether 
they  are  causes  of  prize,  or  of  bottomry,  or  of  salvage,  or  of  for- 
feiture, or  of  any  of  the  like  nature,  over  which  such  courts  have 
a  rightful  jurisdiction,  founded  on  the  actual  or  constructive  pos- 
session of  the  subject-matter.*     The  same  rule  is  applied  to  other 

^  story,  Confl.  Laws,  §§  584,  586  ;  Kose  v.  Himely,  4  Cranch,  269,  270,  per  Mar- 
shall, (J.  J.  ;  Smith  u.  Kuowlton,  UN.  H.  191 ;  Rangely  v.  Webster,  id.  299, 

1  Story,  Contl.  Laws,  §§  532,  545,  551,  591. 

2  Story,  CoiiH.  Laws,  §  592.     See  also  Id.  §  597. 
^  See  Karnes  on  Ei[uity,  b.  3,  eh.  8,  §  4. 

*  Croudson  v.  Leonard,  4  Cranch,  433  ;  Williams  v.  Armroyd,  7  Cranch,  423  ;  Rose 
V.  Himelv,  4  Cranch,  241  ;  Hudson  v.  Guestier,  4  Cranch,  293  ;  The  Jdary,  9  Cranch 
126,  142-146  ;  1  Stark.  Evid.  pp.  246,  247,  248  ;  Marshall  on  Insur.  b.  1,  ch.  9,  §  6^ 
pp.  412,  435  ;  Grant  v.  JIcLachlin,  4  Johns.  34  ;  Peters  v.  Warren  Ins.  Co.,  3  Sum- 
ner, 389  ;  IJlad  v.  Bamfield,  3  Swanst.  604,  605  ;  Bradstreet  v.  Neptune  Insiir.  Co., 
3  Sumner,  600  ;  Magoun  v.  New  England  Insur.  Co.,  1  Story,  157.  The  dilierent 
degrees  of  credit  given  to  foreign  sentences  of  condemnation  in  prize  causes,  by  the 
American  State  courts,  are  stated  in  4  Cowen,  520,  n.  3.  1  Stark.  Evid.  232  (6th  ed. ), 
notes  by  Metcalf.  See  also  2  Kent,  Comm.  120,  121.  If  a  foreign  sentence  of  con- 
demnation as  prize  is  manifestly  erroneous,  as  if  it  professes  to  be  made  on  particular 
grounds,  which  are  set  forth,  but  which  plainly  do  not  warrant  the  decree,  Calvert  v. 

{a)  Thompson  v.  Whitman,  18  Wall,  or  country,  in  their  own  tribunals.     Gra- 

(U.  S.)  457  ;  Guthrie  v.  Lowry,  84  Pa.  St.  ham  v.  Whitely,  2  Dutcher,   254  ;  Gould- 

533.    There  seems  to  be  no  such  presump-  ing  v.  Clark,  34  N.   H.   148.     But  where 

tion  in  favor  of  the  jurisdiction  of  foreign  the  question  of  jurisdiction  is  established, 

courts,    or  of  inferior  domestic  tribunals,  the  same  favorable  presumption  should  be 

according  to  the  maxim    "omnia  praesu-  applied  to  all  judgments.     State  «;.  Hinch- 

muntur  rite  esse  acta,"  as  that  which  exists  man,  27  Pa.  St.  479. 
in  favor  of  the  superior  courts,  in  a  state 


680  LAW    OF    EVIDENCE.  [PART    III. 

courts  proceeding  in  revi,  such  as  the  Court  of  Exchequer  in  Eng- 
land, and  to  other  courts  exercising  a  lilce  jurisdiction  in  rem 
upon  seizures.^  And  in  cases  of  this  sort  it  is  wholly  immaterial 
whether  the  judgment  be  of  acquittal  or  of  condemnation.  In 
both  cases  it  is  equally  conclusive.^  But  the  doctrine,  however, 
is  always  to  be  understood  with  this  limitation,  that  the  judg- 
ment has  been  obtained  bona  fide  and  without  fraud ;  for  if  fraud 
has  intervened,  it  will  doubtless  avoid  the  force  and  validity  of 
the  sentence.'  So  it  must  appear  that  there  have  been  regular 
proceedings  to  found  the  judgment  or  decree ;  and  that  the  parties 
in  interest  in  rem  have  had  notice,  or  an  opportunity,  to  appear 
and  defend  their  interests, ^either  personally,  or  by  their  proper 
representatives,  before  it  was  pronounced;  for  the  common  jus- 
tice of  all  nations  requires  that  no  condemnation  shall  be  pro- 
nounced, before  the  party  has  an  opportunity  to  be  heard. "  ^ 

§  542.  Judgments  in  trustee  process.  Proceedings  also  by  credi- 
tors against  the  personal  property  of  their  debtor,  in  the  hands  of 
third  persons,  or  against  debts  due  to  him  by  such  third  persons 
(commonly  called  the  process  of  foreign  attacliment,  or  garnish- 
ment, or  trustee  process),  are  treated  as  in  some  sense  proceedings 
in  rem,  and  are  deemed  entitled  to  the  same  consideration.  ^  But 
in  this  last  class  of  cases  we  are  especially  to  bear  in  mind,  that, 
to  make  any  judgment  effectual,  the  court  must  possess  and  exer- 
cise a  rightful  jurisdiction  over  the  res,  and  also  over  the  person, 
at  least  so  far  as  the  res  is  concerned;  otherwise  it  v/ill  be  dis- 
regarded. And  if  the  jurisdiction  over  the  res  be  well  founded, 
but  not  over  the  person,  except  as  to  the  res,  the  judgment  will 
not  be  either  conclusive  or  binding  upon  the  party  in  personam, 
although  it  may  be  in  rem."^ 

Bovill,  7  T.  R.  523  ;  Pollard  v.  Bell,  8  T.  E.  444  ;  or,  on  grounds  contrary  to  the  laws 
of  nations,  3  B.  &  P.  215,  per  Ld.  Alvanley,  C.  J.  ;  or,  if  there  be  any  ambiguity  as  to 
what  was  the  ground  of  condemnation, — it  is  not  conclusive,  Dalgleish  v.  Hodgson, 
7  Bing.  495,  504. 

5  Ibid.  ;  1  Stark,  on  Evid.  pp.  228-232,  240-248  ;  Gelston  v.  Hoyt,  3  Wheaton, 
246  ;  Williams  v.  Armroyd,  7  Cranch,  423. 

6  Ibid. 

7  Duchess  of  Kingston's  Case,  11  State  Trials,  pp.  261,  262  ;  s.  c.  20  Howell,  State 
Trials,  p.  355  ;  Id.  p.  538,  the  opinion  of  the  judges  ;  Bradstreet  v.  Neptune  Insur. 
Co.,  3  Sumner,  600  ;  Magoun  v.  New  England  Insur.  Co.,  1  Story,  157.  If  the  for- 
eign court  is  constituted  by  persons  interested  in  the  matter  in  dispute,  the  judgment 
is  not  biiuling.     Price  v.  Dewhurst,  8  Sim.  279. 

8  Sawyer  V.  Maine  Fire  and  Mar.  Ins.  Co.,  12  Mass.  291  ;  Bradstreet  v.  Neptune 
Ins.  Co.,  3  Sumner,  600  ;  Magoun  v.  New  England  Insur.  Co.,  1  Story,  157. 

1  See  cases  cited  in  4  Cowen,  520,  521,  n.  ;  Story,  Coufl.  Laws,  g  549  ;  Holmes  v. 
Remsen,  20  Johns.  229 ;  Hull  v.  Blake,  13  Mass.  153 ;  McDaniel  v.  Hughes,  3  East, 
367  ;  Philips  v.  Hunter,  2  H.  Black.  402,  410. 

2  Story,  Confl.  Laws,  §  592  a.  See  also  Id.  §  549,  and  n.  ;  Bissell  v.  Briggs,  9 
Mas.s.  4G8  ;  3  Burge,  Comm.  on  Col.  &  For.  Law,  pt.  2,  ch.  24,  pp.  1014-1019. 


CHAP,    v.]  RECORDS    AND    JUDICIAL    WRITINGS.  681 

§  543.  Judgments  in  rem,  how  far  conclusive.  Ill  all  these  cases 
the  same  principle  prevails,  that  the  jiulgment,  acting  in  rem, 
shall  be  held  conclusive  upon  the  title  and  transfer  and  disposition 
of  the  property  itself,  in  whatever  place  the  same  property  may 
afterwards  be  found,  and  by  whomsoever  the  latter  may  be  (pics- 
tioned;  and  whether  it  be  directly  or  incidentally  brought  in 
question.  ]>ut  it  is  not  so  universally  settled,  that  the  judgment 
is  conclusive  of  all  points  which  are  incidentall//  disposed  of  by 
the  judgment,  or  of  the  facts  or  allegations  upon  which  it  pro- 
fesses to  be  founded.  In  this  respect,  different  rules  are  adopted 
by  different  States,  both  in  Europe  and  in  America.  In  England, 
such  judgments  are  held  conclusive,  not  only  m  rem,  but  also  as 
to  all  the  points  and  facts  which  they  professedly  or  incidentally 
decide.  ^  In  some  of  the  American  States  the  same  doctrine  pre- 
vails. While  in  other  American  States  the  judgments  are  held 
conclusive  only  in  rem,  and  may  be  controverted  as  to  all  the  in- 
cidental grounds  and  facts  on  which  they  profess  to  be  founded.  ^ 

§  544.  Decrees  affecting  personal  status.  A  similar  doctrine  has 
been  contended  for,  and  in  many  cases  successfully,  in  favor  of 
sentences  which  touch  the  general  capacity  of  per  sons,  and  those 
which  concern  marriage  and  divorce.  Foreign  jurists  strongly 
contend  that  the  decree  of  a  foreign  court,  declaring  the  state 
(status)  of  a  person,  and  placing  him,  as  an  idiot,  or  a  minor,  or 
a  prodigal,  under  guardianship,  ought  to  be  deemed  of  universal 
authority  and  obligation.  So  it  doubtless  would  be  deemed,  in 
regard  to  all  acts  done  within  the  jurisdiction  of  the  sovereign 
whose  tribunals  pronounced  the  sentence.  But  in  the  United 
States  the  rights  and  powers  of  guardians  are  considered  as 
strictly  local ;  and  no  guardian  is  admitted  to  have  any  right  to 
receive  the  profits  or  to  assume  the  possession  of  the  real  estate, 
or  to  control  the  person  of  his  ward,  or  to  maintain  any  action  for 
the  personalty,  out  of  the  States,  under  whose  authority  he  was 
appointed,  without  having  received  a  due  appointment  from  the 
proper  authority  of  the  State,  within  which  the  property  is  situ- 

1  In  Blad  v.  RamtielJ,  decided  by  Lord  Nottingham,  and  reported  in  3  Swanst,  604, 
a  perpetual  injunction  was  awarded  to  restrain  certain  suits  of  trespass  and  trover  for 
seizing  the  goods  of  the  defendant,  (Banifiehi)  for  trading  in  Iceland,  contrary  to  certain 
privileges  granted  to  the  plaintiff  and  otliers.  The  property  was  seized  and  condemned 
in  the  Danish  courts.  Lord  Nottingham  held  the  sentence  conclusive  against  the 
suits,  and  a\var<led  the  injunction  accordingly. 

2  Story,  Confl.  Laws,  §593.  See  4  Cowen,\^22,  n.,  and  cases  there  cited  ;  Vanden- 
heuvel  v.  U.  lusnr.  Co.,  2  Cain.  Cases  in  Err.  217  ;  2. Johns.  Cases,  451  ;  Id.  481  ;  Robin- 
son V.  Jones,  8  Mass.  536  ;  Maley  v.  Shattnck,  3  Cranch,  488  ;  2  Kent,  Comrn.  Lect. 
37,  pp.  120,  121,  4th  ed.,  and  cases  there  cited;  Tarletoii  i'.  Tarleton,  4  M.  &  Selw. 
20:  Peters  v.  Warren  Insur.  Co.,  3  Sumn.  389  ;  Gelston  v.  Hoyt,  3  Wheat.  24G. 


682  LAW    OP    EVIDENCE.  [P.:RT   III. 

ated,  or  the  act  is  to  be  done,  or  to  whose  tribunals  resort  is  to 
be  had.  The  same  rule  is  also  applied  to  the  case  of  executors 
and  administrators.'^ 

§  545.  Marriage.  In  regard  to  marriages,  the  general  principle 
is,  that  between  persons  sui  juris,  marriage  is  to  be  decided  by 
the  law  of  the  place  where  it  is  celebrated.  If  valid  there,  it  is 
valid  everywhere.  It  has  a  legal  ubiquity  of  obligation.  If  in- 
valid there,  it  is  invalid  everywhere.  The  most  prominent,  if 
not  the  only  known,  exceptions  to  this  rule,  are  marriages  involr- 
ing  polygamy  and  incest;  those  prohibited  by  the  public  law  of 
a  country  from  motives  of  policy;  and  those  celebrated  in  foreign 
countries  by  subjects  entitling  themselves,  under  special  circum- 
stances, to  the  benellt  of  the  laws  of  their  own  country.  ^  As  to 
sentences  confirming  marriages,  some  English  jurists  seem  dis- 
posed to  concur  with  those  of  Scotland  and  America,  in  giving  to 
them  the  same  conclusiveness,  force,  and  effect.  If  it  were  not 
so,  as  Lord  Hardwicke  observed,  the  rights  of  mankind  would  be 
very  precarious.  But  others,  conceding  that  a  judgment  of  a  third 
country,  on  the  validity  of  a  marriage  not  within  its  territories, 
nor  had  between  su])jects  of  that  country,  would  be  entitled  to 
credit  and  attention,  deny  that  it  would  be  universally  binding.  ^ 
In  the  United  States,  however,  as  well  as  in  Scotland,  it  is  firmly 
held,  that  a  sentence  of  divorce,  obtained  bona  fide  and  without 
fraud,  pronounced  between  parties  actually  domiciled  in  the  coun- 
try, whether  natives  or  foreigners,  by  a  competent  tribunal,  hav- 
ing jurisdiction  over  the  case,  is  valid,  and  ought  to  be  everywhere 
held  a  complete  dissolution  of  the  marriage,  in  whatever  country 
it  may  have  been  originally  celebrated.  ^ 

§  546.  Foreign  judgments  in  personam.  "  In  the  next  place,  as 
to  judgments  in  personam  which  are  sought  to  be  enforced  by  a  suit 
in  a  foreign  tribunal.  There  has  certainly  been  no  inconsider- 
able fluctuation  of  opinion  in  the  English  courts  upon  this  subject. 
It  is  admitted  on  all  sides,  that,  in  such  cases,  the  foreign  judg- 
ments are  prima  facie  evidence  to  sustain  the   action,  and  are  to 

«  Story,  Confl.  Laws,  §§  499,  504,  594  :  Morrell  v.  Dickey.  1  Johns.  Ch.  153  ; 
Kraft  V.  Wickey,  4  G.  &  J.  332;  Dixon  v.  Ramsay,  3  Crancli,  319.  See.  as  to  foreifin 
executors  and  administrators,  Story,  Confl.  Iia\¥s,  §§  513-523.  Svpra,  §  525 
and  notes. 

1  Story,  Confl.  Laws,  §§  80,  81,  113.  See  post,  vol.  ii.  (7th  ed.)  §§  460-464,  tit. 
Marriage. 

2  Roach  V.  Garvan,  1  Ves.  157  ;  Story,  Confl.  T,aws,  §§  595,  596  ;  Sinclair  v.  Sin- 
clair, 1  Hagg.  Consist.  297;  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.    395,  410. 

^  Story,  Confl.  Laws,  §  597.  See  also  the  lucid  judgment  delivered  hy  Gibson,  C.J., 
in  Dorsey  v.  Dorsey,  7  Watts,  350.  The  whole  subject  of  foreign  divorces  has  re- 
ceived a  masterly  discussion  by  Mr.  Justice  Story,  in  his  Commentaries  on  the  Conflict 
of  Laws,  c.  7,  §§  200-230  b. 


CHAP,    v.] 


RECORDS    AND   JUDICIAL   WRITINGS. 


683 


be  deemed  right  until  the  contrary  is  established  ; '  and,  of  course, 
they  may  be  avoided,  if  they  are  founded  in  fraud,  or  arc  pro- 
nounced by  a  court  not  having  any  competent  jurisdiction  over 
the  cause.  ^  But  the  question  is,  whether  they  are  not  deemed 
conclusive ;  or  whether  the  defendant  is  at  liberty  to  go  at  large 
into  the  original  merits,  to  show  that  the  judgment  ought  to  have 
been  different  upon  the  merits,  although  obtained  bona  fide.  If 
the  latter  course  be  the  correct  one,  then  a  still  more  embarrass- 
ing consideration  is,  to  what  extent,  and  in  what  manner,  the 
original  merits  can  be  properly  inquired  into.  "^  But  though 
there  remains  no  inconsiderable  diversity  of  opinion  among  the 
learned  judges  of  the  different  tribunals,  yet  the  present  inclina- 
tion of  the  English  courts  seems  to  be,  to  sustain  the  conclusive- 
ness of  foreign  judgments.'^  {a) 

^  See  Walker  v.  Witter,  1  Doug;.  1,  and  cases  tliere  cited;  Arnott  v.  Redfern,  3  Bing. 
353;  Sinclair  v.  Fraser,  cited  1  Doug.  4,  5,  n. ;  Houlditcli  v.  Donegal,  2  Clark  &  Finn. 
479  ;  s.  c.  8  Bligli,  301  ;  Don  v.  Lippinan,  5  Clark  &  Finn.  1,  19,  20  ;  Price  v.  Dew- 
hurst,  8  Sim.  279  ;  Alivon  v.  Furnival,  1  C.  M.  &  R.  277  ;  Hall  v.  Odber,  11  East, 
118  ;  Rii.ple  V.  Ripple,  1  Rawle,  386. 

2  See  Bowles  v.  Orr,  1  Younge  &  Coll.  464  ;  Story,  Confl.  Laws,  §§  54  4-550  ;  Fer- 
guson V.  Mahon,  3  Perry  &  Dav.  143  ;  s.  c.  11  Ad.  &  El.  179  ;  Price  v.  Dewhurst,  8 
Simons,  279,  302  ;  Don  i'.  Lippnian,  5  Clark  &  Finn.  1,  19-21  ;  Bank  of  Australasia 
V.  Nias,  15  Jur.  967.  So,  if  the  defendant  was  never  served  with  process.  Id.  And 
see  Henderson  v.  Henderson,  6  Q.  B.  288. 

3  Story.  Confl.  Laws,  §  603. 

*  Id.  §§  604-606.  See  Guinness  v.  Carroll,  1  B.  i&  Ad.  459  ;  Becquet  v.  McCarthy,  2 
B.  &  A.  951.     In  Houlditch  v.  Donegal,  8  Bligh,  301,  337-340,  Lord  Brougham  held  a 


(a)  The  following  observations  upon 
this  general  subject  are  by  Judge  Red- 
field  :  - 

"  We  have  lately  had  occasion  carefully 
to  review  the  law  upon  this  subject,  and 
we  beg  leave  here  to  repeat  what  we  then 
said.  Story,  Confl.  Laws  (Redf.  ed.), 
§§  618rt-6l"8A-.  There  is  no  title  con- 
nected with  the  general  subject  of  the 
conflict  of  laws,  more  embarrassing  than 
that  which  we  are  now  considering.  It 
has  undergone  considerable  discussion 
since  the  lamented  decease  of  our  author. 
We  have  therefore  felt  compelled  to  state, 
as  far  as  we  could,  the  present  state  of  the 
English  law  in  regard  to  it. 

"  Whenever  it  becomes  important  to 
determine  what  is  the  law  of  a  foreign 
country,  the  decisions  of  the  highest  judi- 
cial tribunals  of  that  country  are  held 
conclusive  in  regard  to  it.  This  is  yiartly 
upon  the  ground,  that  the  question  turns 
upon  a  fact,  and  that  fact  is  the  true  state 
of  the  law  of  the  country,  which  is  but 
another  name  for  the  decisions  of  the 
highest  legal  tribunals  of  the  country  : 
so  that  in  truth,  the  law  and  the  decisions 
of  these  tribunals  thus  become  identical. 


This  is  illustrated  in  a  recent  case.  Scott 
V.  Pilkington,  2  B.  &  S.  11  ;  8  Jur.  n.  s. 
557.  And  a  similar  conclusion  was 
arrived  at  in  a  later  case.  Crisi)in  v. 
Doglioni,  9  Jur.  N.  s.  653.  In  the  case  of 
Scott  V.  Pilkington,  it  was  determined, 
that,  where  the  defendant,  domiciled  in 
England,  and  having  his  yilace  of  business 
there,  gave  a  letter  of  credit  to  jiarties  in 
New  York,  authorizing  them  to  draw  bills 
of  exchange  on  his  house  in  Liverpool, 
such  letter  being  delivered  to  the  defen- 
dant in  New  York,  and  intended  to  he 
exhibited  to  purchasers  of  such  bills  as 
authority  for  drawing  the  same,  the  claim 
of  a  drawer  of  such  bills  u]ion  the  defen- 
dant for  non-acceptance  of  the  same  was  a 
contract  subject  to  the  law  of  New  York, 
as  to  its  validity,  force,  and  construction, 
and  not  to  be  judged  of  hy  the  law  of  Eng- 
land  in  any  respect.  And  when  in  such 
case  an  action  had  been  brought  in  the 
courts  of  New  York,  and  the  defendant 
appearing  by  attorney,  it  hail  been  ad- 
judged that,  by  the  law  of  that  State,  tlie 
defendant  was  lialile,  and  judgnumt  had 
been  rendered  thereon  against  hiin,  such 
judgment  was  conclusive  as  to  the  matter, 


G84 


LAW    OP    EVIDENCE. 


[part  III. 


§  547.   Same  subject.      "The  general  doctrine  maintained   in 
the  American  courts^  in  relation  to  foreign  judgments  in  personam, 

foreign  jmlgment  to  be  only  prima  fack  evidence,  and  gave  liis  reasons  at  large  for 
that  opinion.     On  the  other  hand,  Sir  L.  Shadwell,  in  Martin  v.  Nicolls,  3  Sim.  458, 


although  if  the  contract  had  been  subject 
to  the  English  law,  and  the  New  York 
court  had  mistaken  it,  the  judgment  would 
not  have  concluded  an  English  court. 
The  case  of  Crispin  v.  Doglioni  involved 
the  right  of  succession  to  personal  estate 
in  Portugal  by  one  domiciled  in  that 
country,  and  the  matter  having  been 
definitely  settled  by  the  decision  of  the 
highest  judicial  tribunal  of  that  country, 
it  was  held  conclusive  everywhere. 

"  But  it  was  said  in  Scott  v.  Pilking- 
ton,  that  where  the  foreign  court,  in  giv- 
ing judgment,  and  as  one  of  the  elements 
upon  which  the  same  was  based,  assumed 
or  decided  a  question  of  English  law,  by 
which  the  cause  of  action  was  ruled,  and, 
in  doing  so,  mistook  its  true  import,  in 
such  case  the  judgment  of  the  foreign 
courts  will  be  of  no  force  or  validity  in 
an  Englisli  court.  Scott  i-.  Pilkington,  2 
B.  &  S.  11  ;  8  Jur.  N.  s.  557  ;  Simpson  v. 
Fogo,  9  Jur.  N.  s.  403.  In  the  case  of 
Simpson  v.  Fogo,  the  effect  of  foreign 
judgments  is  very  extensively  discussed, 
and  the  following  propositions  declared, 
which  may  be  regarded  as  embracing  the 
present  recognized  principles  of  English 
law  upon  tlie  question. 

"  A  judgment  of  a  foreign  court  is  con- 
clusive, inter  partes,  where  there  is  noth- 
ing on  the  face  of  the  judgment  which 
an  English  court  can  inquire  into.  But 
the  courts  of  England  may  disregard 
such  judgment,  inter  pnrtes,  if  it  appears 
on  the  record  to  be  manifestly  contrary  to 
natural  justice  ;  or  to  be  based  on  domestic 
legislation  not  recognized  in  England  or 
other  foreign  countries  ;  or  is  founded  upon 
a  misapprehension  of  what  is  the  law  of 
England  ;  or  if  such  judgment  proceeds 
tipon  a  distinct  refusal  to  recognize  the 
laws  of  the  country  under  which  the  title 
to  the  subject-matter  of  the  litigation 
arose.  And  a  somewhat  similar  enunciation 
of  the  exceptions  to  the  conclusiveness  of 
foreign  judgments  is  found  in  Bank  of 
Australasia  v.  Nias,  16  Q.  B.  717  ;  4  Eng. 
L.  &  K(i.  252. 

"  There  are  some  cases  where  foreign 
decrees  have  been  held  to  operate  in  rem, 
and  thus  to  transfer  an  effectual  and  ab- 
solute title  to  property  sold  under  an  order 
or  execution  from  the  foreign  courts  ;  but 
where  in  other  cases  very  similarly  situ- 
ated, it  has  been  held  that  only  the  title 


of  the  judgment  debtor  passed  under  the 
sale.  The  true  distinction  in  this  class  of 
cases  seems  to  be,  that  where  the  court 
assumes  to  allow  adverse  claimants  to  in- 
terpose objections  to  the  sale,  and  to  deter- 
mine the  validity  of  such  claims,  and  to 
pass  a  perfect  title  to  the  thing  sold,  it 
must  be  taken  as  a  proceeding  in  rnn,  and 
as  having  effectually  foreclosed  all  claim  of 
title  from  any  party  who  did  in  fact  sub- 
mit his  claim  to  adjitdication  before  the 
court,  or  who  had  his  domicile  at  the  time 
within  the  jurisdiction  of  the  court,  and 
who  might  therefore  have  been  heard  there, 
provided  proper  notice  appears.  Imrie  v. 
Castrique,  8  C.  B.  N.  s.  406  ;  7  Jur.  N.  s. 
1076;  Simpson  v.  Fogo,  svpra ;  Woodruff 
V,  Taylor,  20  Vt.  65. 

"And  it  will  not  exonerate  the  defen- 
dant in  a  foreign  judgment,  that  he  be- 
came a  party  co  the  proceedings  merely 
to  prevent  his  property  being  seized,  and 
that  the  judgment  is  erroneous  in  fact 
and  in  law  on  the  merits  ;  whether  the 
plea  alleges,  that  the  error  does  or  does 
not  appear  upon  the  face  of  the  judg- 
ment. Nor  can  the  defendant  plead,  that 
the  enforcement  of  the  judgment  in  Eng- 
land is  contrary  to  natural  justice,  on  the 
ground  that  the  defendant  had  discovered 
fresh  evidence,  showing  that  the  judgment 
is  erroneous  in  fact  or  in  law  upon  the 
merits,  or  that  evidence  was  improperly 
admitted.  De  Cosse  Brissac  v.  Rathbone, 
6  H.  &  Nor.  301. 

"  But  a  plea  in  bar  of  a  suit,  that  the 
same  matter  has  been  adjudged  between 
the  parties  in  a  foreign  court,  must  show 
that  the  judgment  is  final  and  conclusive 
between  the  parties,  according  to  the  law 
of  the  place  where  such  judgment  is  pro- 
nounced. Frayes  v.  Worms,  10  C.  B.  N.  s. 
149.  And  the  judgment  of  the  foreign 
court  may  always  be  impeached  by  show- 
ing any  facts  whereby  it  is  made  to  ap- 
pear tliat  the  court  had  not  jurisdiction 
V)y  the  laws  of  the  country  where  ren- 
dered. But  no  facts  can  be  shown,  by 
way  of  defence  to  such  judgment,  which 
might  have  been  urged  in  the  foreign 
court.  Vanquelin  v.  Bouard,  9  L.  T. 
N,  s.  582, 

"  These  cases,  mostly  of  recent  occur- 
rence, have  carried  the  doctrine  of  the 
conclusive  force  of  foreign  judgments  con- 
siderably  beyond    the    point    maintained 


CHAP,    v.] 


RECORDS    AND    JUDICIAL    WRITINGS. 


685 


certainly  is,  that  thoy  arc  prima  facie  evidence;  bnt  that  thoy  are 
impeachable.      But  how  far,  and  to  what  extent,  this  doctrine  is 

held  the  contrary  opinion,  that  it  was  con<  liisive  ;  and  also  gave  a  very  elaborate 
judgment  upon  the  point,  in  which  he  reviewed  tiiu  primdpal  authorities.  Of  course, 
the  learned  judge  meant  to  except,  and  did  e.xce[)t  in  a  later  case  ( l^rice  v.  Dew- 
Imrst,  8  Sim.  "279,  30'2),  judgments  which  were  pioduced  bv  fraud.  See  also  Don  v. 
Lippman,  5  Clark  &  Finn.  1,  20,  21  ;  Story,  Conll.  Laws,  §§  54i-5oO,  605  ;  Alivon 
V.  Furnival,  1  C.  M.  &  U.  277,  284.  "  It  is,  indeed,  very  difficult,"  observes 
Mr.  Justice  Story,  "to  perceive  what  could  be  done,  if  a  diflcrent  doctrine  were 
maintaiiuible  to  the  full  extent  of  ojiening  all  the  evidence  and  merits  of  llu;  cause 
anew,  on  a  suit  upon  the  foreign  judgment.  Some  of  the  witm^sses  may  he  since  dead  ; 
some  of  the  vouchers  may  be  lost  or  destroyed.  The  merits  of  the  ca.se,  as  formei-ly 
before  the  court,  upon  the  whole  evidence,  may  have  been  decidedly  in  favor  of  the 
judgment  ;  upon  a  partial  possession  of  the  origiiial  evidence,  they  may  now  appear 
otherwise.  Suppose  a  case  purely  sounding  in  damages,  such  as  an  action  for  an 
assault,  for  slander,  for  conversion  of  property,  for  a  malicious  prosecution,  or  for  a 
criminal  conversation  ;  is  the  defendant  to  be  at  liberty  to  reti'y  the  whole  merits,  and 
to  make  out,  if  he  can,  a  new  case,  upon  new  evidence  ?  Or,  is  the  court  to  review 
the  former  decision,  like  a  court  of  appeal  upon  the  old  evidence  ?  In  the  ca.se  of 
covenant,  or  of  debt,  or  of  a  breach  of  contract,  are  all  the  circumstances  to  be  re- 
examined anew  ?  If  they  are,  by  what  laws  and  rules  of  evidence  and  principles  of 
justice  is  the  validity  of  the  original  judgment  to  be  tried  ?  Is  the  court  to  open  the 
judgment,  and  to  proceed  ex  ceqiio  ct  bono?  Or  is  it  to  administer  strict  law,  and 
stand  to  the  doctrines  of  the  local  administration  of  justice  ?  Is  it  to  act  u[)ou  the  rules 
of  evidence  ack:io\vle<lged  in  its  own  juris[)rudence,  or  ui)on  those  of  the  foreign  juris- 
prudence ?  These  and  many  more  ijuestions  might  be  put  to  show  the  intrinsic  diffi- 
culties of  the  subject.    Indeed,  the  rule,  that  the  judgment  is  to  be  prima  facie  evidence 


by  the  earlier  cases,  and  even  so  late  as 
within  the  last  thirty  years,  when  it  was 
held,  by  the  courts  in  Westminster  Hall, 
that  such  judgments  were  merely  priina 
facie  evidence  of  debt,  and  did  not  opei'- 
ate  as  an  absolute  and  conclusive  merger 
of  the  cause  of  action.  Story,  CoiiH.  of 
Laws,  §  599  ;  Smith  v.  Nicolls,  5  Bing. 
N.  C.  208.  But  it  was  formally  held,  by 
the  common  consent  of  counsel,  in  the 
House  of  Lords,  as  early  as  1845,  that  a 
judgment  of  the  highest  judicial  tribunal 
of  France,  upon  the  same  subject-matter,  in 
favor  of  the  present  defendant,  amounted  to 
res  judicaf.a,  and  was  therefore  an  etfectual 
merger  of  the  cause  of  action,  '  the  for- 
eign tribunal  having  jurisdiction  over 
the  matter,  and  both  the  parties  having 
been  regularly  brought  before '  it.  Ri- 
cardo  v.  Garcias,  12  CI.  &  Fin.  368.  So 
that  now  it  may  be  regarded  as  fully 
established  in  England,  that  the  contract 
resulting  from  a  foreign  judgment  is 
equally  conclusive,  in  its  force  and  opera- 
tion, with  that  implied  by  any  domestic 
judgment. 

"  But  there  is  still  a  very  essential  and 
important  distinction  between  the  two. 
Domestic  judgments  rest  upon  the  con- 
clusive force  of  the  record,  which  is 
absolutely  unimpeachable.  Foreign  judg- 
ments are  mere  matters  en  pais,  to  be 
proveil  the   same   as  an   arbitration  and 


award,  or  an  account  stated  ;  to  be  es- 
tablished, as  matter  of  fact  before  the 
jury  ;  and  by  consequence  subject  to 
any  contradiction  or  im[)eachment  which 
might  be  urged  against  any  other  matter 
resting  upon  oral  proof.  Hence  any 
fraud  which  entered  into  the  concoction 
of  the  judgment  itself  is  pioper  to  be 
adduced,  as  an  answer  to  the  same  ;  but 
no  fraud  which  occurred,  and  was  known 
to  the  opposite  part}%  before  the  rendi- 
tion of  such  foreign  judgment,  and  which 
might  therefore  have  been  brought  to  the 
notice  of  the  foreign  court,  can  be  urged 
in  defence  of  it. 

"It  is  proper  to  add,  that  while  the 
English  courts  thus  recognize  the  general 
force  and  validity  of  foreign  judgments, 
it  has  been  done  under  such  limitations 
and  qualifications,  that  great  latitude  still 
remains  for  breaking  the  force  of,  and 
virtually  disregarding,  such  foreign  judg- 
ments as  proceed  upon  an  obvious  misap- 
prehension of  the  principles  governing 
the  case  ;  or  where  they  arc  j)roduced  by 
partiality  or  favoritism,  or  corru]ition,  or 
where  upon  their  face  they  appear  to  be  at 
variance  with  the  instinctive  principles 
of  universal  justice.  2  Story,  Eq.  Jur. 
§§  1575-1584,  and  cases  cited  ;  Boston 
India  Rubber  Factory  v.  Hoit,  14  Vt.  92. 
But  these  are  the  rare  exceptions." 


686  LAW   OP   EriDENCE.  [PART  •III. 

to  be  carried,  docs  not  seem  to  be  definitely  settled.  It  has  been 
declared  that  the  jurisdiction  of  the  court,  and  its  power  over  the 
parties  and  the  thinj^s  in  controversy,  may  be  inquired  into;  and 
that  the  judgment  may  be  impeached  for  fraud.  Beyond  this,  no 
definite  lines  have  as  yet  been  drawn."* 

§  548.  Judgments  of  other  States.  We  have  already  adverted 
to  the  provisions  of  the  constitution  and  statutes  of  the  United 
States,  in  regard  to  the  admissibility  and  effect  of  the  judgments 
of  one  State  in  the  tribunals  of  another.^  By  these  provisions, 
such  judgments,  authenticated  as  the  statutes  provide,  are  put 
upon  the  same  footing  as  domestic  judgments. ^  "But  this,"  ob- 
serves Mr.  Justice  Story,  "does  not  prevent  an  inquiry  into  the 
jurisdiction  of  the  court,  in  which  the  original  judgment  was 
rendered,  to  pronounce  the  judgment,  nor  an  inquiry  into  the 
right  of  the  State  to  exercise  authority  over  the  parties,  or  the 
subject-matter,  nor  an  inquiry  whether  the  judgment  is  founded 
in,  and  impeachable  for,  a  manifest  fraud.  The  constitution  did 
not  mean  to  confer  any  new  power  upon  the  States ;  but  simply  to 
regulate  the  effect  of  their  acknowledged  jurisdiction  over  per- 
sons and  things  within  their  territory.  It  did  not  make  the  judg- 
ments of  other  States  domestic  judgments,  to  all  intents  and 
purposes ;  but  only  gave  a  general  validity,  faith,  and  credit  to 
them  as  evidence.^    No  execution  can  issue  upon  such  judgments, 

for  the  plaintiff,  would  be  a  mere  delusion,  if  the  defendant  might  still  question  it,  by 
openin>5  all  or  any  of  the  original  merits  on  his  side  ;  for,  under  such  circumstances,  it 
would  be  equivalent  to  gi'anting  a  new  trial.  It  is  easy  to  understand  that  the  de- 
fendant may  be  at  liberty  to  im]jeach  the  original  justice  of  the  judgment,  by  showing 
that  the  court  had  no  jurisdiction  ;  or,  that  he  never  had  any  notice  of  the  suit  ;  or, 
that  it  was  procured  by  fraud  :  or,  that  upon  its  face  it  is  founded  in  mistake  ;  or,  that 
it  is  irregular,  and  bad  by  the  local  law.  Fori  rei  judicatce.  To  such  an  extent,  the 
doctrine  is  intelligible  and  practicable.  Beyond  this,  the  right  to  impugn  the  judgment 
is  in  legal  effect  the  right  to  retry  the  merits  of  the  original  cause  at  large,  and  to  put 
the  defendant  upon  proving  those  merits."  See  Story,  Confi.  Laws,  §  607  ;  Alivon  v. 
Furnival,  1  C.  M.  &  R.  277. 

^  Stor}%  Confl.  Laws,  §  608.  See  also  2  Kent,  Comm.  119-121, and  the  valuable 
notes  of  Mr.  Metcalf  to  his  edition  of  Starkie  on  Evid.  vol.  i.  pp.  232,  233  (6th  Am. 
ed.);  Wood  v.  Watkinson,  17  Conn.  500.  The  American  cases  seem  further  to  agree, 
that  when  a  foreign  judgment  comes  incidentally  in  question,  as,  where  it  is  the  foun- 
dation of  a  right  or  title  derived  under  it,  and  the  like,  it  is  conclusive.  If  a  foreign 
judgment  proceeds  upon  an  error  in  law,  apparent  upon  the  face  of  it,  it  may  be 
im))e;iched  everywhere;  as,  if  a  French  court,  professing  to  decide  according  to  the  law 
of  England,  cleailv  mistakes  it.     Novelli  v.  Rossi,  2  B.  &  Ad.  757. 

1  Supra,  §§  504-506.     And  see  Flourenoy  v.  Durke,  2  Brev.  206. 

■■^  Taylor  v.  Bryden,  8  Johns.  173.  Where  the  jurisdiction  of  an  inferior  court 
depends  on  a  fact,  which  such  court  must  necessarily  and  directly  decide,  its  decision 
is  taken  as  conclusive  evidence  of  the  fact.  Britain  v.  Kinnaird,  1  B.  &  B.  432  ; 
Betts  V.  Bagley,  12  Pick.  572,  582,  per  Shaw,  C.  J.  ;  Steele  v.  Smith,  7  Law  Rep. 
461. 

3  See  Story's  Comment,  on  the  Constit.  U.  S.  ch.  29,  §§  1297-1307,  and  cases  there 
cited  ;  Hall  v.  Williams,  6  Pick.  237  ;  Bissell  v.  Brigg.s,  9  Mass.  462  ;  Shumway  ». 
Stlllman,  6  Wend.  447  ;  Evans  v.  Tatem,  9  Serg.  &  R.  260  ;  Benton  v.  Burgot,  10  Serg. 


CHAP,    v.]  KECORDS    AND   JUDICIAL   WRITINGS.  687 

without  a  new  suit  in  the  tribunals  of  other  States.  And  they 
enjoy  not  the  right  of  priority,  or  privilege,  or  lien,  which  tliey 
have  in  the  State  where  they  are  pronounced,  but  that  only  which 
the  lex  fori  gives  to  them  by  its  own  laws,  in  the  character  of 
foreign  judgments. "  * 

§  549.  Foreign  judgments  at  common  law.  The  common  law 
recognizes  no  distinction  whatever,  as  to  the  effect  of  foreign 
judgments,  whether  they  are  between  citizens,  or  between  for- 
eigners, or  between  citizens  and  foreigners;  deeming  them  of 
equal  obligation  in  all  cases,  whoever  are  the  parties.^ 

§  550.  Decrees  of  ecclesiastical  courts.  In  regard  to  the  decrees 
and  sentences  of  courts,  exercising  any  branches  of  the  ecclesias- 
tical jurisdiction^  the  same  general  principles  govern,  which  we 
have  already  stated.^  The  principal  branch  of  this  jurisdiction, 
in  existence  in  the  United  States,  is  that  which  relates  to  matters 
of  probate  and  administration.  And  as  to  these,  the  inquiry,  as 
in  other  cases,  is,  whether  the  matter  was  exclusively  within  the 
jurisdiction  of  the  court,  and  whether  a  decree  or  judgment  has 
been  passed  directly  upon  it.  If  the  affirmative  be  true,  the  de- 
cree is  conclusive.  Where  the  decree  is  of  the  nature  of  proceed- 
ings 171  rem,  as  is  generally  the  case  in  matters  of  probate  and 
administration,  it  is  conclusive,  like  those  proceedings,  against 
all  the  world.  But  where  it  is  a  matter  of  exclusively  private 
litigation,  such  as,  in  assignments  of  dower,  and  some  other  cases 
of  jurisdiction  conferred  by  particular  statutes,  the  decree  stands 
upon  the  footing  of  a  judgment  at  common  law.^  Thus,  the  pro- 
bate of  a  will,  at  least  as  to  the  personalty,  is  conclusive  in  civil 
cases,  in  all  questions  upon  its  execution  and  validity.^  («)  The 
grant  of  letters  of  administration  is,  in  general,  prima  facie  evi- 
dence of  the  intestate's  death ;  for  only  upon  evidence  of  that  fact 

&  R.  240  ;  Harrod  v.  Barretto,  1  Hall,  155  ;  s.  c.  2  Hall,  302  ;  Wilson  v.  Niles,  2 
Hall,  358  ;  Hoxie  v.  Wright,  2  Vt.  263  ,  Bellows  v.  Ingham,  2  Vt.  575  ;  Aldrich  v. 
Kinney,  4  Conn.  380;  Bennett  i'.  Morley,  1  Wilcox,  100.  See  further,  1  Kent,  Comm. 
260,  261,  and  n.  d.  As  to  the  effect  of  a  discharge  under  a  foreign  insolvent  law,  see 
the  learned  judgment  of  Shaw,  C.  J.,  in  Betts  v.  Bagley,  12  Pick.  572. 

*  Story,  Confl.  Laws,  §  609  ;  McElmoyle  v.  Cohen,  13  Peters,  312,  328,  329  ;  Story, 
Coufl.  Laws,  §  582  rt,  n. 

1  Story,  Confl.  Laws,  §  610. 

1  2  Smith's  Leading  Cases,  446-448. 

2  Supra,  §§  525,  528. 

"  Poplin  V.  Hawke,  8  N.  H.  124  ;  1  .Tarman  on  Wills,  p]).  22-24,  and  notes  ^y  Per- 
kins ;  Langdon  v.  Goddard,  3  Story,  13.    See  post,  vol.  ii.  (7th  ed.)  §§  315,  [673],  693. 

(a)  A  decree  of  a  probate  court  of  an-  prove  it  in  Massachusetts  ;  even  when  no 

other  State,  admitting  to  probate  a   will  notice  of  the  offer  of  the  will  for  probate 

within  its  jurisdiction,  is  conclusive  e''i-  was  given,  if  by  the  law  of  that  State  no 

dence,  if  duly  authenticated,  of  the  valid-  notice  was  required,     Crippen  v.   Dexter, 

ity   of  the  will,    upon   an   application  to  13  Gray,  330. 


688  LAW    OF    EVIDENCE.  [PART   IIT. 

ought  they  to  have  been  granted.*  (b)  And  if  the  grant  of  admin- 
istration turned  upon  the  question  as  to  which  of  the  parties  was 
next  of  kin,  the  sentence  or  decree  upon  that  question  is  conclu- 
sive everywhere,  in  a  suit  between  the  same  parties  for  distribu- 
tion.^ But  the  grant  of  administration  upon  a  woman's  estate 
determines  nothing  as  to  the  fact  whether  she  were  a  feme  covert 
or  not;  for  that  is  a  collateral  fact,  to  be  collected  merely  by  in- 
ference from  the  decree  or  grant  of  administration,  and  was  not 
the  point  directly  tried.^  Where  a  court  of  probate  has  power  to 
grant  letters  of  guai-dianship  of  a  lunatic,  the  grant  is  conclusive 
of  his  insanity  at  that  time,  and  of  his  liability,  therefore,  to  be 
put  under  guardianship,  against  all  persons  subsequently  dealing 
directly  with  the  lunatic,  instead  of  dealing,  as  they  ought  to  do, 
with  the  guardian.' 

§  551.  Decrees  in  chancery.  Decrees  in  chancery  stand  upon  the 
same  principles  with  judgments  at  common  law,  which  have 
already  been  stated.  Whether  the  statements  in  the  bill  are  to 
be  taken  conclusively  against  the  complainant  as  admissions  by 
him,  has  been  doubted;  but  the  prevailing  opinion  is  supposed  to 
be  against  their  conclusiveness,  on  the  ground  that  the  facts 
therein  stated  are  frequently  the  mere  suggestions  of  counsel, 
made  for  the  purpose  of  obtaining  an  answer,  under  oath.^    If  the 

*  Thompson  v.  Donaldson,  3  Esp.  63 ;  French  v.  French,  1  Dick.  268  ;  Succession 
of  Hainblin,  3  Rob.  (La.)  130  ;  Jeffers  v.  Radcliff,  10  N.  H.  '242.  But  if  the  fact,  that 
the  intestate  is  living,  when  pleadable  in  abatement,  is  not  so  pleaded,  the  grant  of 
administration  is  conclusive.  Kewman  v.  Jenkins,  10  Pick.  515.  In  Moons  v.  De 
Bernales,  1  Russ.  30],  the  general  practice  was  stated  and  not  denied  to  be,  to  admit 
the  letters  of  administration,  as  sufficient  proof  of  the  death,  until  impeached  ;  but  the 
Master  of  the  Rolls,  in  that  case,  which  was  a  foreign  grant  of  administration,  refused 
to  receive  them  ;  but  allowed  the  party  to  examine  witnesses  to  the  fact. 

5  Barrs  v.  Jackson,  1  Phil.  Ch.  582  ;  2  Y.  k  C.  585  ;  Thomas  v.  Ketteriche,  1 
Ves.  333. 

6  Blackham's  Case,  1  Salk.  290,  per  Holt,  C.  J.  See  also  Hibshman  v.  Dulleban, 
4  Watts,  183. 

'<  Leonard  v.  Leonard,  14  Pick.  280.  But  it  is  not  conclusive  against  his  subse- 
quent capacity  to  make  a  will.     Stone  v.  Damon,  12  Mass.  488. 

1  Doe  V.  Sybourn,  7  T.  R.  3.  The  bill  is  not  evidence  against  the  party  in  whose 
name  it  is  filed,  until  it  is  shown  that  he  was  privy  to  it.  When  this  privity  is  estab- 
lished, the  bill  is  evidence  that  such  a  suit  was  instituted,  and  of  its  subject-matter  ;  but 

(b)  A  decree  of  the  probate  court,  grant-  against  the  administrator  as    such,   on   a 

ing  letters   of  administration,    is  Jiot  ad-  debt  due  from  the  supposed  deceased,  as 

mCssible  in  proof  of  the  death  of  the  inte.s-  evidence  that  the  defendant  is   bound  to 

tate,  as  between  strangers,  nor  even  in  an  pay  the  debt.     Mutual  Benefit  Ins.  Co.  v. 

action    brought   by  the   person    who    has  Tisdale,  91  U.  S.  238,  243  ;  Jochumsen  v. 

been  appointed  administrator,  in  his  indi-  Suffolk    Savings  Bank,  3  Allen  (Mass. ), 

vidual  capacity,  but  it  is  admissible  in  an  87,  94  ;  Day  r.  Floyd,  130  Mass.  488.    L'l'. 

action  by  the  administrator  in  his  official  Tisdale    v.    Conn.   L.   Ins.  Co.,  26  Iowa, 

capacity"  on  a  debt  due  the  supposed  de-  177;   s.  c.   28  Id.   12;  Clayton  v.    Gres- 

ceased,'as  evidence  that  the  plaintiff  has  ham,    10   Ves.    '288;    Leach    v.  Leach,  8 

a  right  to  collect  the  debt  ;  or  in  an  action  Jur.  211. 


CHAP,    v.]  RECORDS    AND   JUDICIAL   WRITINGS.  689 

bill  has  been  sworn  to,  without  doubt  the  party  would  be  held 
bound  by  its  statements,  so  far  as  they  are  direct  allegations  of 
fact.  The  admissibility  and  effect  of  the  answer  of  the  defendant 
is  governed  by  the  same  rules. ^  But  a  demurrer  in  chancery  does 
not  admit  the  facts  charged  in  the  bill ;  for  if  it  be  overruled,  the 
defendant  may  still  answer.  So  it  is,  as  to  pleas  in  chancery; 
these,  as  well  as  demurrers,  being  merely  hypothetical  statements, 
that,  supposing  the  facts  to  be  as  alleged,  the  defendant  is  not  bound 
to  answer.  3  But  pleadings,  and  depositions,  and  a  decree,  in  a 
former  suit,  the  same  title  being  in  issue,  are  admissil)le  as  show- 
ing the  acts  of  parties,  who  had  the  same  interest  in  it  as  the 
present  party,  against  whom  they  are  offered.^  (a) 

§  552.  Depositions.  In  regard  to  depositions,  it  is  to  be  ob- 
served, that,  though  informally  taken,  yet  as  mere  declarations 
of  the  witness,  under  his  hand,  they  are  admissible  against  him, 
wherever  he  is  a  party,  like  any  other  admissions;  or,  to  contra- 
dict and  impeach  him,  when  he  is  afterwards  examined  as  a  wit- 
ness. But,  as  secondary  evidence,  or  as  a  substitute  for  his 
testimony  viva  voce,  it  is  essential  that  they  be  regularly  taken, 
under  legal  proceedings  duly  pending,  or  in  a  case  and  manner 
provided  by  law.i(A)  And  though  taken  in  a  foreign  State,  yet 
if  taken  to  be  used  in  a  suit  pending  here,  the  forms  of  our  law, 
and  not  of  the  foreign  law,  must  be  pursued. ^  But  if  the  deposi- 
tion was  taken  in  perpetuam,  the  forms  of  the  law  under  which  it 

not  of  the  plaintiff's  admission  of  the  truth  of  the  matters  therein  stated,  unless  it  were 
sworn  to.  The  proceedings  after  answer  are  admissible  in  evidence  of  tiie  privity  of  the 
party  in  whose  name  the  bill  was  filed.  Boileau  v.  Rudlin,  12  Jur.  899  ;  2  Exch.  665. 
And  see  Burden  v.  Cleveland,  4  Ala.  225  ;  Bull.  N.  P.  235.  See  further,  as  to  the 
admission  of  bills  and  answers,  and  to  what  extent,  Randall  v.  Parraraore,  1  Fla.  409  ; 
Roberts  v.  Tennell,  3  J\lonr.  247  ;  Clarke  v.  Robinson,  5  B.  Monr.  55  ;  Adams  v. 
McMillan,  7  Port.  73. 

2  Supra,  §§  171,  179,  186,  202. 

«  Tomkins  v.  Ashby,  1  M.  &  Malk.  32,  33,  per  Abbott,  Ld.  C.  J. 

*  Viscount  Lorton  v.  Earl  of  Kingston,  5  Clark  &  Fin.  269. 

^  As  to  the  manner  of  taking  depositions,  ami  in  what  cases  they  may  be  taken,  see 
stcpra,  §§  320-325. 

2  Evans  v.  Eaton,  7  Wheat.  426  ;  Farley  v.  King,  S.  J.  Court,  Maine,  in  Lincoln, 
Oct.  Term.  1822,  per  Preble,  J.  But  depositions  taken  in  a  foreign  country,  under  its 
own  laws,  are  admissible  here  in  proof  of  probable  cause,  for  the  arrest  and  extradition 
of  a  fugitive  from  justice,  upon  the  preliminary  examination  of  his  case  before  a  judge. 
See  Metzger's  Case,  before  Betts,  J.,  5  N.  Y.  Legal  Obs.  83. 

(a)  Of.  Torrey  u.  Pond,  102  Ma.ss.  355.  Somers  v.  Wriglit,   114  Id.  172;  Phillips 

The   report  of  an  auditor   is  prima  facie  v.  Cornell,  133  Id.  546. 
evidence  in  favor  of  the  party  for  whom  (&)  The  answers  of  a  party  to  a  suit,  to 

he  decides,  and  is  sufficient,  at  the  trial  interrogatories  filed  in  a  case,  are  compe- 

of  the  cause,  to  put  the  burden  of  introdu-  tent  evidence  against  him,  as  admissions 

cing  rebutting  evidence  on  the  other  side,  on  his  part,  of  the  facts  stated  therein  in 

The     report,    however,  does    not  exclude  another  suit,   although  the  issues  in  the 

other  competent  evidence  on  either  side,  two  suits  be  different.     Williams  v.  Che-      [Z' 

Star  Glass  Co.  v.  Morey,  108  Mass.  570;  ney,  3  Gray  (Mass.),  215,  220. 
VOL.  I.  — 44 


690  LAW    OP    EVIDENCE.  [PART    III. 

was  taken  must  have  been  strictly  pursued,  or  it  cannot  be  read 
in  evidence.^  If  a  bill  in  equity  be  dismissed  merely  as  being  in 
its  substance  unfit  for  a  decree,  the  depositions,  when  offered  as 
secondary  evidence  in  another  suit,  will  not  on  that  account  be 
rejected.  But  if  it  is  dismissed  for  irregularity,  as,  if  it  come 
before  the  court  by  a  bill  of  revivor,  when  it  should  have  been  by 
an  original  bill,  so  that  in  truth  there  was  never  regularly  any 
such  cause  in  the  court,  and  consequently  no  proofs,  the  deposi- 
tions cannot  be  read ;  for  the  proofs  cannot  be  exemplified  with- 
out bill  and  answer,  and  they  cannot  be  read  at  law,  unless  the 
bill  on  which  they  were  taken  can  be  read.^ 

§  553.  Depositions.  Cross-examination.  We  have  seen,  that 
in  regard  to  the  admissibility  of  a  former  judgment  in  evidence 
it  is  generally  necessary  that  there  be  a  perfect  mutuality  be- 
tween the  parties;  neither  being  concluded,  unless  both  are  alike 
bound.^(a)  But  with  respect  to  depositions,  though  this  rule  is 
admitted  in  its  general  principle,  yet  it  is  applied  with  more 
latitude  of  discretion;  and  complete  mutuality,  or  identity  of  all 
the  parties,  is  not  required.  It  is  generally  deemed  sufficient,  if 
the  matters  in  issue  were  the  same  in  both  cases,  and  the  party, 
against  whom  the  deposition  is  offered,  had  full  power  to  cross- 
examine  the  witness.  Thus,  where  a  bill  was  pending  in  chan- 
cery, in  favor  of  one  plaintiff  against  several  defendants,  upon 
which  the  court  ordered  an  issue  of  devisavit  vel  non,  in  which  the 
defendants  in  chancery  should  be  plaintiffs,  and  the  plaintiff  in 
chancery  defendant ;  and  the  issue  was  found  for  the  plaintiffs ; 
after  which  the  plaintiff  in  chancery  brought  an  ejectment  on  his 

3  Gould  V.  Gould,  3  Story,  516. 

*  Backhouse  v.  Middleton,  1  Ch.  Cas.  173,  175;  Hall  d.  Hoddesdon,  2  P.  Wms. 
162  ;  Vaughan  v.  Fitzgerald,  1  Sch.  &  Lefr.  316. 

5  Supra,  §  524.  The  reason  given  by  Chief  Baron  Gilbert,  for  applying  the  rule,  to 
the  same  extent,  to  depositions  taken  in  chancery,  is,  that  othervvise  great  mischief 
would  ensue;  "for  then  a  man,  that  never  was  party  to  the  chancery  proceedings, 
might  use  against  his  adversary  all  the  depositions  that  made  against  him  ;  and  he  in 
his  own  advantage  could  not  use  the  depositions  that  made  for  him,  because  the  other 
party,  not  being  concerned  in  the  suit,  had  not  the  liberty  to  cposs-examine,  and  there- 
fore cannot  be  encountered  with  any  depositions,  out  of  the  cause."  1  Gilb.  Evid.  62  ; 
Pi ush worth  v.  Countess  of  Pembroke,  Hardr.  472.  But  the  exception  allowed  in  the 
text  is  clearly  not  within  this  mischief,  the  right  of  cross-examination  being  unlimited, 
as  to  the  matters  in  question. 

(a)  In  the  King's  Bench,  it  was  held  original  evidence  against  him.     Cockburn, 

by  two  of  the  judges,  one  dissenting,  that  C.  J.,  said,   "A  man  who  brings  forward 

where  a  party  makes  use  of  the  depositions  another,    for  the    purpose  of  asserting  or 

of  witnesses  in  a  suit  with  another  party,  proving  some  fact  on  his  behalf,  whether 

in  regard  to  the  -same  subject-matter,  that  in  a  court  of  justice  or  otherwise,  must  be 

he,  by  thus  making  use  of  the  deposition  taken  himself  to  assert  the  fact  which  he 

as    true,    knowing    its    contents,    so    far  thus    seeks   to   establish."      Richards    v. 

afiQrms  its  truth,  that  it  may  be  used  as  Morgan,  10  Jur.  N.  s.  559. 


CHAP.    V.j  RECORDS    AND    JUDICIAL    WRITINGS.  691 

own  demise,  claiming  as  heir  at  law  of  the  same  testator,  against 
one  of  those  defendants  alone,  who  claimed  as  devisee  under  the 
will  formerly  in  controversy;  it  was  held,  that  the  testimony  of 
one  of  the  subscribing  witnesses  to  the  will,  who  was  examined  at 
the  former  trial,  but  had  since  died,  might  be  proved  by  the  de- 
fendant in  the  second  action,  notwithstanding  the  parties  were 
not  all  the  same;  for  the  same  matter  was  in  controversy,  in  both 
cases,  and  the  lessor  of  the  plaintiff  had  precisely  the  same  power 
of  objecting  to  the  competency  of  the  witness,  the  same  right  of 
calling  witnesses  to  discredit  or  contradict  his  testimony,  and  the 
same  right  of  cross-examination,  in  the  one  case,  as  in  the  other. ^ 
If  the  power  of  cross-examination  was  more  limited  in  the  former 
suit,  in  regard  to  the  matters  in  controversy  in  the  latter,  it  would 
seem  that  the  testimony  ought  to  be  excluded.'  The  same  rule 
applies  to  privies,  as  well  as  to  parties. 

§  554.  In  equity.  But  though  the  general  rule,  at  law,  is,  that 
no  evidence  shall  be  admitted,  but  what  is  or  might  be  under  the 
examination  of  both  parties  ;  ^  yet  it  seems  clear,  that,  in  equity, 
a  deposition  is  not,  of  course,  inadmissible,  in  evidence  because 
there  has  been  no  cross-examination,  and  no  waiver  of  the  right. 
For  if  the  witness,  after  his  examination  on  the  direct  interroga- 
tories, should  refuse  to  answer  the  cross-interrogatories,  the  party 
producing  the  witness  will  not  be  deprived  of  his  direct  testimony, 
for,  upon  application  of  the  other  party,  the  court  would  have 
compelled  him  to  answer. ^  So,  after  a  witness  was  examined  for 
the  plaintiff,  but  before  he  could  be  cross-examined,  he  died;  the 
court  ordered  his  deposition  to  stand  ;3  though  the  want  of  the 
cross-examination  ought  to  abate  the  force  of  his  testimony.^  So, 
Where  the  direct  examination  of  an  infirm  witness  was  taken  by 
the  consent  of  parties,  but  no  cross-interrogatories  were  ever  filed, 
though  the  witness  lived  several  months  afterwards,  and  there 
was  no  proof  that  they  might  not  have  been  answered,  if  they  had 

«  Wright  V.  Tat^am,  1  Ad.  &  El.  3  ;  12  Vin.  Abr.  tit.  Evidence,  A,  b,  31,  pi.  45, 
47.     As  to  the  persons  who  are  to  be  deemed  parties,  see  supra,  §§  523,  535. 

7  Hardr.  315  ;  Cazenove  v.  Vaughan,  1  M.  k  S.  4.  It  has  been  held  that  the 
deposition  of  a  witness  before  the  coroner,  upon  an  inquiry  touching  the  death  of  a 
person  killed  by  a  collision  of  vessels,  was  admissible  in  an  action  for  the  negligent 
management  of  one  of  them,  if  the  witness  is  shown  to  be  beyond  sea.  Sills  v.  Brown, 
9  C.  &  P.  601,  603,  per  Coleridge,  J.  ;  Bull.  N.  P.  242;  Rex  v.  Eriswell,  3  T.  R.  707, 
712,  721  ;  J.  Kely,  55. 

1  Cazenove  v.  Vaughan,  1  M.  &  S.  4,  6  ;  Attorney-General  v.  Davison,  1  McCl.  &  Y. 
160  ;  Gass  v.  Stinson,  3  Sumn.  98,  104,  105. 

■^  Courteney  v.  Hoskins,  2  Russ.  253. 

3  Arundel  v.  Arundel,  1  Chan.  R.  90. 

*  O'Callaghan  v.  Murphy,  2  Sch.  &  Lef.  158  ;  Gass  v.  Stinson,  3  Suran.  98,  106, 
107.     But  see  Kissam  v.  Forrest,  25  Wend.  651. 


692  LAW   OP   EVIDENCE.  [PART   III. 

been  filed;  it  was  held,  that  the  omission  to  file  them  was  at 
the  peril  of  the  party,  and  that  the  deposition  was  admissible.^ 
A  new  commission  may  be  granted,  to  cross-examine  the  plain- 
tiff's witnesses  abroad,  upon  subsequent  discovery  of  matter,  for 
such  examination.^  But  where  the  deposition  of  a  witness,  since 
deceased,  was  taken,  and  the  direct  examination  was  duly  signed 
by  the  magistrate,  but  the  cross-examination,  which  was  taken  on  a 
subse(4uent  day,  was  not  signed,  the  whole  was  held  inadmissible.' 

§  555.  Depositions  relating  to  custom.  Depositions,  as  well  as 
verdicts,  which  relate  to  a  custom,  or  prescription,  or  pedigree, 
where  reputation  would  be  evidence,  are  admissible  against  stran- 
gers ;  for  as  the  declarations  of  persons  deceased  would  be  admis- 
sible in  such  cases,  a  fortiori  their  declarations  on  oath  are  so.^ 
But  in  all  cases  at  law,  where  a  deposition  is  offered  as  secondary 
evidence,  that  is,  as  a  substitute  for  the  testimony  of  the  witness 
viva  voce,  it  must  appear  that  the  witness  cannot  be  personally 
produced ;  unless  the  case  is  provided  for  by  statute,  or  by  a  rule 
of  the  court.  ^ 

§  556.  Inquisitions.  The  last  subject  of  inquiry  under  this 
head  is  that  of  inquisitions.  These  are  the  results  of  inquiries, 
made  under  competent  public  authority,  to  ascertain  matters  of 
public  interest  and  concern.  It  is  said  that  they  are  analogous 
to  proceedings  in  rem,  being  made  on  behalf  of  the  public ;  and 
that  therefore  no  one  can  strictly  be  said  to  be  a  stranger  to  them. 
But  the  principle  of  their  admissibility  in  evidence,  between  pri- 
vate persons,  seems  to  be,  that  they  are  matters  of  public  and 
general  interest,  and  therefore  within  some  of  the  exceptions  to 
the  rule  in  regard  to  hearsay  evidence,  which  we  have  heretofore 
considered.  1  Whether,  therefore,  the  adjudication  be  founded 
on  oath  or  not,  the  principle  of  its  admissibility  is  the  same. 
And,  moreover,  it  is  distinguished  from  other  hearsay  evidence, 
in  having  peculiar  guaranties  for  its  accuracy  and  fidelity. ^  The 
general  rule  in  regard  to  these  documents  is,  that  they  are  admis- 
sible in  evidence,  but  that  they  are  not  conclusive  except  against 
the  parties  immediately  concerned,  and  their  privies.  Thus,  an 
inquest  of  office,  by  the  attorney-general,  for  lands  escheating  to 
the  government  by  reason  of  alienage,  was  held  to  be  evidence  of 

6  Gass  V.  Stinson,  3  Sumn.  98,  where  this  subject  is  fully  examined  by  Story,  J. 
®  King  of  Hanover  v.  Wheatley,  4  Beav.  78. 
1  Reg.  V.  France,  2  M.  &  Rob.  207. 

8  Bull.  N.  P.  239,  240  ;  supra,  §§  127-130,  139,  140. 

9  Supra,  §§  322,  323.  > 

1  Supra,  §§  127-140. 

2  Phil.  &  Am.  on  Evid.  578,  579;  1  Stark.  Evid.  260,  261,  263. 


CHAP,   v.]  RECORDS   AND   JUDICIAL   WRITINGS.  693 

title,  in  all  cases,  but  not  conclusive  against  any  person,  who  was 
not  tenant  at  the  time  of  the  inquest,  or  party  or  privy  thereto, 
and  that  such  persons,  therefore,  might  show  that  there  were 
lawful  heirs  in  esse,  who  were  not  aliens.^  So,  it  has  been  re- 
peatedly held  that  inquisitions  of  lunacy  may  be  read ;  but  that 
they  are  not  generally  conclusive  against  persons  not  actually 
parties.^  But  inquisitions,  extrajudicially  taken,  are  not  admis- 
sible in  evidence.^ 

8  Stokes  V.  Dawes,  4  Mason,  268,  per  Story,  J. 

*  Sergeson  v.  Sealey,  2  Atk.  412  ;  Den  v.  Clark,  5  Halst.  217,  per  Ewing,  C.  J.  ; 
Hart  V.  Deamer,  6  Wend.  497  ;  Faulder  v.  Silk,  3  Campb.  126 ;  2  Madd.  Chan.  578. 

5  Glossop  V.  Pole,  3  M.  &  S.  175  ;  Latkow  v.  Earner,  2  H.  Bl.  437.  See  svpra, 
§  550,  that  the  inquisition  is  conclusive  against  persons,  who  undertake  subsequently 
to  deal  with  the  lunatic,  instead  of  dealing  with  the  guardian,  and  seek  to  avoid  his 
authority,  collaterally,  by  showing  that  the  party  was  restored  to  his  reason. 


694  LAW   OF    EVIDENCE.  [PART   III. 


CHAPTER   VI. 

OF   PRIVATE   WRITINGS. 

§  557.  Private  writings.  The  last  class  of  written  evidence 
which  we  propose  to  consider  is  that  of  private  writings.  And, 
in  the  discussion  of  this  subject,  it  is  not  intended  separately  to 
mention  every  description  of  writings  comprised  in  this  class,  but 
to  state  the  principles  which  govern  the  proof,  admissibility,  and 
effect  of  them  all.  In  general,  all  private  writings  produced  in 
evidence  must  be  proved  to  be  genuine ;  but  in  what  is  now  to  be 
said,  particular  reference  is  had  to  solemn  obligations  and  instru- 
ments, under  the  hand  of  the  party,  purporting  to  be  evidence  of 
title ;  such  as  deeds,  bills,  and  notes.  These  must  be  produced, 
and  the  execution  of  them  generally  be  proved,  or  their  absence 
must  be  duly  accounted  for,  and  their  loss  supplied  by  secondary 
evidence. 

§  558.  Proof  of,  when  lost.  And  first,  in  regard  to  the  produc- 
tion of  such  documents.  If  the  instrument  is  lost,  the  party  is 
required  to  give  some  evidence  that  such  a  paper  once  existed, 
though  slight  evidence  is  sufficient  for  this  purpose,  and  that  a 
bona  fide  and  diligent  search  has  been  unsuccessfully  made  for  it 
in  the  place  where  it  was  most  likely  to  be  found,  if  the  nature  of 
the  case  admits  such  proof ;  after  which,  his  own  affidavit  is  ad- 
missible to  the  fact  of  its  loss.^     The  same  rule  prevails  where 

1  Supra,  §  349,  and  cases  there  cited.  The  rule  is  not  restricted  to  facts  peculiarly 
•within  the  party's  knowledge  ;  but  permits  him  to  state  other  pertinent  facts,  such  as 
his  search  for  the  document  elsewhere  than  among  his  own  papers.  Vedder  v.  Wilkins, 
5  Denio,  64.  In  regard  to  the  order  of  the  proof,  namely,  whether  the  existence  and 
genuineness  of  the  paper,  and  of  course  its  general  character  or  contents,  must  be  proved 
before  any  evidence  can  be  received  of  its  loss,  the  decisions  are  not  uniform.  The 
earlier  and  some  later  cases  require  that  this  order  should  be  strictly  observed.  Goodier 
V.  Lake,  1  Atk.  446;  Sims  v.  Sims,  2  Rep.  Const.  Ct.  225  ;  Kimball  v.  Morrell,  4 
Greenl.  368 ;  Stockdale  v.  Young,  3  Strobh.  501,  n.  In  other  cases,  it  has  been  held, 
that,  in  the  order  of  proof,  the  loss  or  destruction  of  the  paper  must  first  be  shown. 
Wills  V.  McDole,  2  South.  501  ;  Sterling  v.  Potts,  Id.  773  ;  Shrowders  v.  Harper, 
1  Harringt.  444  ;  Flinn  v.  M'Gonigle,  9  Watts  &  Serg.  75  ;  Murray  v.  Buchanan,  7 
Blackf.  549  ;  Parke  v.  Bird,  3  Barr,  360.  But,  on  the  one  hand,  it  is  plain,  that  the 
proof  of  the  loss  of  a  document  necessarily  involves  some  descriptive  proof  of  the  docu- 
ment itself,  though  not  to  the  degree  of  precision  subsequently  necessary  in  order  to 
establish  a  title  under  it ;  and,  on  the  other  hand,  a  strong  probability  of  its  loss  has 
been  held  sufficient  to  let  in  the  secondary  evidence  of  its  contents.  Bouldin  v.  Massie, 
7  Wheat.  122,  154,  155.  These  considerations  will  go  far  to  reconcile  most  of  the 
cases  apparently  conflicting.     In  Fitch  v.  Bogue,  19  Conn.  285,  the  order  of  the  proof 


CHAP.    VI.]  PRIVATE   WRITINGS.  695 

the  instrument  is  destroyed.  What  degree  of  diligence  in  the 
search  is  necessary  it  is  not  easy  to  define,  as  each  case  depends 
much  on  its  peculiar  circumstances ;  and  the  question,  whether 
the  loss  of  the  instrument  is  sufTiciently  proved  to  admit  secondary 
evidence  of  its  contents,  is  to  be  determined  by  the  court  and  not 
by  the  jury.  ^  (a)  But  it  seems  that,  in  general,  the  party  is  ex- 
pected to  show  that  he  has  in  good  faith  exhausted,  in  a  reason- 
able degree,  all  the  sources  of  information  and  means  of  discovery 
which  the  nature  of  the  case  would  naturally  suggest,  and  which 
were  accessible  to  him.3(5)  It  should  be  recollected,  that  the 
object  of  the  proof  is  merely  to  establish  a  reasonable  presump- 
tion of  the  loss  of  the  instrument,  and  that  this  is  a  preliminary 
inquiry  addressed  to  the  discretion  of  the  judge.  If  the  paper 
was  supposed  to  be  of  little  value,  or  is  ancient,  a  less  degree  of 
diligence  will  be  demanded,  as  it  will  be  aided  by  the  presump- 
tion of  loss  which  these  circumstances  aiford.  If  it  belonged  to 
the  custody  of  certain  persons,  or  is  proved  or  may  be  presumed 
to  have  been  in  their  possession,  they  must,  in  general,  be  called 
and  sworn  to  account  for  it,  if  they  are  within  reach  of  the  pro- 
cess of  the  court.  ^  And  so,  if  it  might  or  ought  to  have  been  de- 
was  held  to  be  immaterial,  and  to  rest  in  the  discretion  of  the  court.  It  is  sufficient, 
if  the  party  has  done  all  that  could  reasonably  be  expected  of  him,  under  the  circum- 
stances of  the  case,  in  searching  for  the  instrument.  Kelsey  v.  Hanmer,  18  Conn.  311. 
After  the  loss  of  a  deed  has  been  established,  the  secondary  evidence  of  the  contents  or 
substance  of  the  contents  of  its  operative  parts  must  be  clear  and  direct,  and  ito  execu- 
tion must  be  distinctly  proved.  And  the  declarations  of  the  grantor  are  admissible,  in 
corroboration  of  the  other  evidence.  Metcalf  v.  Van  Beuthuysen,  3  Comst.  424  ;  Mar- 
iner V.  Saunders,  5  Gilm.  113. 

2  Page  V.  Page,  15  Pick.  368. 

3  Rex  V.  Morton,  4  M.  &  S.  48  ;  Kex  v.  Castleton,  6  T.  R.  236 ;  1  Stark.  Evid. 
336-340  ;  Wills  v.  McDole,  2  South.  501  ;  Thompson  v.  Travis,  8  Scott,  85  ;  Parks 
V.  Dunkle,  3  Watts  &  Serg.  291  ;  Gathercole  v.  Miall,  15  L.  J.  Exch.  179;  Doe  v. 
Lewis,  15  Jur.  512  ;  5  Eng.  L.  &  E([.  400.  The  admission  of  the  nominal  plaintiff, 
that  he  had  burnt  the  bond,  he  being  interested  adversely  to  the  real  plaintiff,  has  been 
held  sufficient  to  let  in  secondary  evidence  of  its  contents.  Shortz  v.  Uuangst.  3  Watts 
&  Serg.  45. 

*  Ralph  V.  Brown,  3  Watts  &  Serg.  395. 

{a)  Glassell  v.  Mason,  32  Ala.  719  ;  to  parts  unknown,  he  has  done  all  that 
Wood  worth  v.  Barker,  1  Hill  (N.  Y.),  176  ;  can  be  reasonably  required  of  him,  and  the 
Bachelder  v.  Nutting,  16  N.  H.  261  ;  ante,  production  of  the  affidavit  of  the  absent 
§  49,  n.  While  it  is  a  general  rule  that  party  to  the  record  may  be  dispensed  with, 
the  affidavit  of  the  plaintiff  must  be  pro-  Foster  v.  Mackay,  7  Met.  531,  537. 
duced  where  a  paper  is  alleged  to  be  lost,  (b)  Where  a  party  has  been  deprived 
of  wliich  he  must  be  presumed  to  have  the  of  an  instrument  by  fraud,  secondary 
custody,  before  secondary  evidence  of  its  evidence  of  its  contents  is  admissible, 
contents  can  be  admitted,  yet  the  rule  is  Grimes  ?;.  Kimball,  3  Allen  (Mass.),  518. 
not  inflexible.  Where  the  nominal  pnrty  And  even  where  a  party  who  offers  to  prove 
to  the  record  is  not  the  party  actually  the  contents  of  a  paper  has  himself  de- 
seeking  to  recover,  and  the  party  interested  stroyed  it,  he  may  explain  the  circum- 
has  used  due  diligence  to  find  the  plaintiff  stances  of  the  destruction  in  order  to  prove 
and  produces  proof  that  he  has  absconded  the  contents.     Tobiu  v.  Shaw,  45  Me.  331. 


696  LAW   OF   EVIDENCE.  [PART   III. 

posited  in  a  public  office,  or  other  particular  place,  that  place 
must  be  searched.  If  the  search  was  made  by  a  third  person, 
he  must  be  called  to  testify  respecting  it.  (c)  And  if  the  paper 
belongs  to  his  custody,  he  must  be  served  with  a  subpoena  duces 
tecum  to  produce  it.^  If  it  be  an  instrument  which  is  the  founda- 
tion of  the  action,  and  which,  if  found,  the  defendant  may  be  com- 
pelled again  to  pay  to  a  bona  fide  holder,  the  plaintiff  must  give 
sufficient  proof  of  its  destruction  to  satisfy  the  court  and  jury  that 
the  defendant  cannot  be  liable  to  pay  it  a  second  time.^  And  if 
the  instrument  was  executed  in  duplicate,  or  triplicate,  or  more 
parts,  the  loss  of  all  the  parts  must  be  proved  in  order  to  let  in 
secondary  evidence  of  the  contents.'  Satisfactory  proof  being 
thus  made  of  the  loss  of  the  instrument,  the  party  will  be  admitted 
to  give  secondary  evidence  of  its  contents.  ^  {d) 

^  The  duty  of  the  witness  to  produce  such  a  document  is  thus  laid  down  by  Shaw, 
C.  J. :  "There  seems  to  be  no  difference  in  principle  between  compelling  a  witness  to 
produce  a  document  in  his  possession,  under  a  subponna  duces  tecum,  in  a  case  where 
the  party  calling  the  witness  has  a  right  to  the  use  of  such  document,  and  compelling 
him  to  give  testimony,  when  the  facts  lie  in  his  own  knowledge.  It  has  been  decided, 
though  it  was  formerly  doubted,  that  a  suhpcena  duces  tecum  is  a  writ  of  compulsory 
obligation,  which  the  court  has  power  to  issue,  and  which  the  witness  is  bound  to  obey, 
and  which  will  be  enforced  by  proper  process  to  compel  the  production  of  the  paper, 
when  the  witness  has  no  lawful  or  reasonable  excuse  for  withholding  it.  Amey  v.  Long, 
9  East,  473  ;  Corsen  v.  Dubois,  1  Holt,  N.  P.  239.  But  of  such  lawful  or  reasonable 
excuse  the  court  at  Nisi  Prius,  and  not  the  witness,  is  to  judge.  And  when  the  wit- 
ness has  the  paper  ready  to  produce,  in  obedience  to  the  summons,  but  claims  to  retain 
it  on  the  ground  of  legal  or  equitable  interests  of  his  own,  it  is  a  question  to  the  discre- 
tion of  the  court,  under  the  circumstances  of  the  case,  whether  the  witness  ought  to 
produce,  or  is  entitled  to  withhold,  the  paper."     Bull  v.  Loveland,  10  Pick.  14. 

6  Hansard  v.  Kobinson,  7  B.  &  C.  90  ;  Lubbock  v.  Tribe,  3  M.  &  W.  607.  See  also 
Peabody  v.  Denton,  2  Gall.  351  ;  Anderson  v.  Robson,  2  Bay,  495  ;  Davis  v.  Dodd,  4 
Taunt.  602  ;  Pierson  v.  Hutchinson,  2  Campb.  211  ;  Rowley  v.  Ball,  3  Cowen,  303  ; 
Kirby  v.  Sisson,  2  Wend.  550  ;  Murray  v.  Garret,  3  Call,  373  ;  Mayor  v.  Johnson,  3 
Campb.  324  ;  Swift  v.  Stevens,  8  Conn.  431  ;  Eamuz  v.  Crowe,  11  Jur.  715  ;  post,  vol. 
ii.  §  156. 

T  Bull.  N.  P.  254  ;  Rex  v.  Castleton,  6  T.  R.  236  ;  Doe  v.  Pulman,  3  Q.  B.  622. 

^  See,  as  to  secondary  evidence,  supra,  §  84,  and  note.  Where  secondary  evidence 
is  resorted  to,  for  proof  of  an  instrument  which  is  lost  or  destroyed,  it  must,  in  general, 
be  proved  to  have  been  executed.  Jackson  v.  Frier,  16  Johns.  196  ;  Kimball  v.  Mor- 
rell,  4  Greenl.  368  ;  Kelsey  v.  Hanmer,  18  Conn.  311 ;  Porter  v.  Ferguson,  4  Fla.  102. 
But  if  the  secondary  evidence  is  a  copy  of  the  instrument  which  appears  to  have  been 
attested  by  a  witness,  it  is  not  necessary  to  call  this  witness.  Poole  v.  Warren,  3  Nev. 
&  P.  693.     See  also  ante,  §  509.     In  case  of  the  loss  or  destruction  of  the  instrument, 

(c)  But  in  Smith  v.  Smith,  10  Ir,  Rep.  though  not  admissible  as  a  letter.  Nathan 
Eq.  274,  it  was  held  that  a  party  might  v.  Jacob,  1  F.  &  F.  452.  A  copy  of  a  copy 
show  that  he  made  inquiries  of  certain  of  a  lost  instrument  may  be  the  best  evi- 
[)ersons  who  would  be  likely  to  have  the  dence  of  its  contents,  and  therefore  admis- 
document,  and  what  their  answers  to  the  sible.  Winn  v.  Patterson,  9  Pet.  (U.  S.) 
inquiries  were,  without  calling  them  to  663 ;  Gracie  v.  Morris,  22  Ark.  415.  So 
testify.  To  the  same  effect  is  Reg.  v.  In-  a  copy  sworn  to  be  correctly  made  from  a 
habitants  of  Kenilworth,  7  Q.  B.  642.  press  copy  is  evidence  of  its  contents, 
(d)  A  machine  copy  of  a  letter  of  the  without  jiroducing  the  press  copy.  Good- 
plaintiff  to  a  third  party  was  received  as  rich  v.  Weston,  102  Mass.  362. 
evidence  of  an  admission  on  his  part,  al- 


CHAP.    VI.]  PRIVATE   WRITINGS.  697 

§  559.  Production,  how  secured.  The  production  of  private  writ- 
ings, in  which  another  person  has  an  interest,  may  be  had  either 
by  a  bill  of  discovery,  in  proper  cases,  or  in  trials  at  law  by  a  writ 
of  suhpcena  duces  tecum,^  directed  to  the  person  who  has  them  in 
his  possession.  The  courts  of  common  law  may  also  make  an 
order  for  the  inspection  of  writings  in  the  possession  of  one  party 
to  a  suit  in  favor  of  the  other.  The  extent  of  this  power,  and  the 
nature  of  the  order,  whether  it  should  be  peremptory,  or  in  the 
shape  of  a  rule  to  enlarge  the  time  to  plead,  unless  the  writing  is 
produced,  does  not  seem  to  be  very  clearly  agreed  ;2  and,  in  the 
United  States,  the  courts  have  been  unwilling  to  exercise  the 
power  except  where  it  is  given  by  statute,  (a)  It  seems,  however, 
to  be  agreed,  that  where  the  action  is  ex  contractu,  and  there  is 
but  one  instrument  between  the  parties,  which  is  in  the  posses- 
sion or  power  of  the  defendant,  to  which  the  plaintiff  is  either 
an  actual  party  or  a  party  in  interest,  and  of  which  he  has  been 
refused  an  inspection,  upon  request,  and  the  production  of  which 
is  necessary  to  enable  him  to  declare  against  the  defendant,  the 
court,  or  a  judge  at  chambers,  may  grant  him  a  rule  on  the  de- 
fendant to  produce  the  document,  or  give  him  a  copy  for  that  pur- 

the  admissions  of  the  party  may  be  proved  to  establish  both  its  existence  and  contents. 
Mauri  v.  Heffernan,  13  Johns.  58,  74  ;  Thomas  v.  Harding,  8  Greenl.  417  ;  Corbin  v. 
Jackson,  14  Wend.  619.  See  also  ante,  §  96.  A  copy  of  a  document,  taken  by  a 
machine,  worked  by  the  witness  who  produces  it,  is  admissible  as  secondary  evidence. 
Simpson  v.  Thoreton,  2  M.  &  Rob.  433. 

1  See  the  course  in  a  parallel  case,  where  a  witness  is  out  of  the  jurisdiction,  supra, 
§  320.  It  is  no  sufficient  answer  for  a  witness  not  obeying  this  suhpcena,  that  the  in- 
strument required  was  not  material.  Doe  v.  Kelly,  4  Dowl.  273.  But  see  Rex  v.  Lord 
John  Russell,  7  Dowl.  693.     Ante,  §  319. 

2  Supra,  §  320.  If  the  api)licant  has  no  legal  interest  in  the  writing,  which  he  re- 
quests leave  to  inspect,  it  will  not  be  granted.  Powell  v.  Bradbury,  4  C.  B.  541 ;  13 
Jur.  349.     And  see  supra,  §  473. 

(a)  By  the  act  of  Sept.  24,  1789  (1  made  out ;  and  the  court  will  then  pass  an 
U.  S.  Stat,  at  Large,  82),  it  is  provided  order  nisi,  leaving  the  opposite  party  to 
that  the  courts  of  the  United  States  "  shall  produce  or  to  show  cause  at  the  trial, 
have  power  in  all  actions  at  law,  on  motion  where  alone  the  materiality  can  be  finally 
and  due  notice  thereof  being  given,  to  re-  decided.  lasigi  v.  Brown,  1  Curtis  C.  C. 
quire  the  parties  to  produce  books  or  401.  For  other  decisions  under  this  sec- 
writings  in  their  possession  or  power,  tion  of  the  statute,  see  Hylton  v.  Brown, 
which"  contain  evidence  pertinent  to  the  1  Wash.  C.  C.  298 ;  Bas  v.  Steele,  3 
issue,  in  cases  and  under  circumstances  Id.  381  ;  Dunham  v.  Riley,  4  Id.  126  ; 
where  they  might  be  compelled  to  produce  Vasse  v.  Mifflin,  Id.  .519.  In  England, 
the  same  by  the  ordinary  rules  of  proceed-  under  a  statute  authorizing  interrogatories 
ing  in  chancery  ; "  and  in  case  of  the  non-  to  the  of)posite  ])arty  as  to  any  matter  about 
production  thereof  upon  such  order  the  which  discovery  may  be  sought,  it  is  held 
court  may  direct  a  nonsuit  or  default,  that  the  interrogatories  should  be  confined 
Under  this  statute,  an  order  to  produce  to  such  matters  as  might  he  discovered  by 
may  be  applied  for  before  trial,  upon  no-  a  bill  in  equity.  Wliateley  v.  Crowter, 
tice.  A  prima  facie  case  of  the  existence  5  E.  &  B.  712.  See  also  post,  vol.  iii. 
of  the  paper  and  its  materiality  must  be  §  290. 


698 


LAW    OP    EVIDENCE, 


[part    III. 


pose.^  Such  order  may  also  be  obtained  by  the  defendant  on  a 
special  case ;  such  as,  if  there  is  reason  to  suspect  that  the  docu- 
ment is  forged,  and  the  defendant  wishes  that  it  may  be  seen  by 
himself  and  his  witnesses.^  But,  in  all  such  cases,  the  applica- 
tion should  be  supported  by  the  affidavit  of  the  party,  particularly 
stating  the  circumstances.^  (^) 

§  560.  When  in  hands  of  adverse  party.  When  the  instrument 
or  writing  is  in  the  hands  or  poiver  of  the  adverse  party,  there  are, 
in  general,  except  in  the  cases  above  mentioned,  no  means  at  law 
of  compelling  him  to  produce  it ;  but  the  practice,  in  such  cases, 
is,  to  give  him  or  his  attorney  a  regular  notice  to  produce  the 
original.  Not  that,  on  proof  of  such  notice,  he  is  compellable 
to  give  evidence  against  himself,  but  to  lay  a  foundation  for  the 
introduction  of  secondary  evidence  of  the  contents  of  the  docu- 

3  3  Chitty's  Gen.  Pr.  433,  434 ;  1  Tidd's  Pr.  590-592  ;  1  Paine  &  Duer's  Pr.  486- 
488  ;  Graham's  Practice,  p.  524  ;  Lawrence  v.  Ocean  Ins.  Co.,  11  Johns.  246,  n.  (a)  ; 
Jackson  v.  Jones,  3  Cowen,  17  ;  Wallis  v.  IVlurray,  4  Cowen,  399;  Denslow  v:  Fowler, 
2  Cowen,  592  ;  Davenbagh  v.  M'Kiunie,  5  Cowen,  27  ;  Utica  Bank  v.  Hilliard,  6 
Cowen,  62. 

4  Brush  V.  Gibbon,  3  Cowen,  18,  n.  (a). 

5  3  Chitty's  Gen.  Pr.  434.  This  course  being  so  seldom  resorted  to  in  the  American 
common-law  courts,  a  more  particular  statement  of  the  practice  is  deemed  unnecessary 
^  this  place.     See  Law's  U.  S.  Courts,  35,  36. 


(b)  In  England,  it  has  been  held  that, 
under  the  Common- Law  Procedure  Act 
(1854),  17  &  18  Vict.  c.  125,  the  court 
will  not  grant  a  discovery  of  documents 
except  upon  the  affidavit  of  the  2}<^''fty  to 
the  suit  ;  the  affidavit  of  the  attorney  not 
being  sufficient,  although  the  party  him- 
self is  abroad.  Herschfield  v.  Clark,  11 
Exch.  712.  But  in  the  case  of  a  corpora- 
tion, the  affidavit  may  be  made  by  attor- 
ney. Bull  V.  Clarke,  15  C.  B.  N.  s.  351. 
Before  a  party  can  be  called  upon  to  pro- 
duce a  document  for  the  purposes  of  evi- 
dence, it  must  be  shown  that  it  is  in  his 
possession.  Laxton  ?'.  Reynolds,  18  Jur. 
963.  It  is  not  an  answer  to  an  application 
for  an  order  for  a  discovery  of  documents, 
that  they  are  privileged  from  being  pro- 
duced ;  if  such  be  the  fact,  it  must  be 
shown  in  the  affidavit  made  in  obedience 
to  the  order.  Forshaw  v.  Lewis,  10  Exch. 
712.  The  right  of  a  plaintiff  under  the 
statute  (14  &  15  Vict.  c.  99)  to  inspect 
deeds  in  the  defendant's  custody,  where 
such  a  right  exists,  is  not  limited  by  what 
is  necessary  to  make  out  a  prima  facie 
case ;  but  it  extends  to  any  deeds  wliich 
may  tend  to  support  or  strengthen  the 
case  on  tlie  part  of  the  jilaintiff.  The  rule 
that  one  party  has  no  right  to  inspect  doc- 


uments which  make  out  the  title  of  the 
other  does  not  apply,  if  they  also  make 
out  his  own.  Coster  v.  Baring,  29  Eng. 
L.  &  Eq.  365.  And  it  seems  that  in 
most  cases  the  defendant  will  be  entitled 
to  an  inspection  of  his  own  letters,  in 
the  hands  of  the  opposite  party,  when 
the  action  is  based  upon  evidence  con- 
tained in  them,  where  uo  copies  were 
retained  and  the  inspection  was  necessary 
to  the  defence.  Price  v.  Harrison,  8  C. 
B.  N.  s.  617.  And  so  also  in  the  case 
of  a  plaintiff,  who  claimed  damages  of 
a  railway  company  for  dismissing  him 
from  the  office  of  superintendent,  it  was 
held  that  he  was  entitled  to  have  an  in- 
spection of  all  entries  or  minutes  in  the 
company's  books  having  reference  to  his 
employment.  Hill  v.  Great  Western 
Railway  Co.,  10  C.  B.  N.  s.  148.  But 
the  defendant  is  not  entitled  to  inspect 
his  own  letters  to  the  plaintiff,  in  an  ac- 
tion for  breach  of  promise  of  marriage, 
upon  an  affidavit  that  the  promise,  if  any, 
was  contained  in  the  letters.  Hamer  v. 
Sowerby,  3  Law  T.  N.  .s.  734.  And  the 
court  will  not  grant  an  inspection  of 
documents  produced  at  the  trial,  with  a 
view  to  discover  grounds  to  move  a  new 
trial,     Pratt  v.  Goswell,  9  C.  B.  n.  s.  706. 


CHAP.    VI.] 


PRIVATE   WHITINGS. 


699 


ment  or  writing,  by  showing  that  the  party  has  done  all  in  his 
power  to  produce  the  original.*^ 


6  2  Tidd's  Pr.  802  ;  1  Paine  &  Duer's  Pr.  483  ;  Graham's  Practice,  p.  528.  Notice 
to  produce  the  instrument  is  not  alone  sufficient  to  admit  the  party  to  give  secondary 
evidence  of  its  contents.  He  must  prove  the  existence  of  tiie  original.  Sharpe  v. 
Lambe,  3  P.  &  D.  454.  (c)  He  must  also  show  that  the  instrument  is  in  the  posses- 
sion, or  under  the  control,  of  the  party  required  to  produce  it.  Smith  v.  Sleap,  1  Car. 
&  Kirw.  48.  But  of  this  fact  very  slight  evidence  will  raise  a  sufficient  presumption, 
where  the  instrument  exclusively  belongs  to  him,  and  has  recently  been,  or  regularly 
ought  to  be,  in  his  j)Ossession,  according  to  the  course  of  business.  Henry  v.  Lei"h,  3 
Campb.  499,  502  ;  Harvey  v.  Mitchell,  2  M.  &  Rob.  366  ;  Kobb  v.  Starkey,  2  C.  It  K. 
143.  (d)  And  if  the  instrument  is  in  the  possession  of  another,  in  privity  with  the 
party,  such  as  his  banker,  or  agent,  or  servant,  or  the  like,  notice  to  the  party  himself 
is  sufficient.  Baldney  v.  Ritchie,  1  Stark.  338  ;  Sinclair  v.  Stevenson,  1  C.  &  P.  582  ; 
Burton  v.  Payne,  2  C.  &  P.  520  ;  Partridge  v.  Coates,  Ry.  &  M.  153,  156  ;  Taplin  v'. 
Atty,  3  Bing.  164.  If  a  deed  is  in  the  hands  of  an  attorney,  having  a  lien  upon  it,  as 
security  for  money  due  from  his  client,  on  which  ground  he  refuses  to  produce  it  in 
obedience  to  a  siibpcena  duces  tecum,  as  he  justly  may  (Kemp  v.  King,  2  M.  &  Rob. 
437 ;  Reg.  V.  Hankins,  2  C.  &  K.  823),  the  party  calling  for  it  may  give  secondary  evi- 
dence of  its  contents.  Doe  v.  Ross,  7  M.  &  W.  102.  So,  if  the  deed  is  in  court,  in  the 
hands  of  a  third  person  as  mortgagee,  who  has  not  been  subpoenaed  in  the  cause,  and 
he  declines  to  produce  it,  secondary  evidence  of  its  contents  is  admissible  ;  but  if  the 
deed  is  not  in  court,  and  he  has  not  been  subpoenaed,  it  is  otherwise.  In  such  case,  the 
I>erson  having  custody  of  the  deed  must  only  state  the  date  and  names  of  the  parties, 
in  order  to  identify  it.  Doe  v.  Clifford,  2  C.  &  K.  448.  The  notice  to  produce  may  be 
given  verbally.  Smith  v.  Young,  1  Campb.  440.  After  notice  and  refusal  to  produce 
a  i)aper,  and  secondary  evidence  given  of  its  contents,  the  adverse  party  cannot  after- 
wards produce  the  document  as  his  own  evidence.  Doe  v.  Hodgson,  4  P.  &  D  142  • 
s.  c.  12  Ad.  &  El.  135.  (e) 


(c)  Although  some  proof  must  be  given 
to  the  judge  of  the  existence  of  the  jiaper, 
yet,  where  his  decision  on  the  non-exist- 
ence of  the  paper  would  in  effect  decide 
the  case,  the  judge  will  not  hear  evidence 
to  prove  that  the  instrument  never  existed, 
e.  g.  when  the  action  is  based  on  a  policy 
of  insurance  which  the  plaintiff  alleges  is 
in  the  defendant's  possession.  Stowe  v. 
Querner,  L.  R.  5  Ex.  155. 

(d)  The  proof  that  the  instrument  is  in 
the  possession  of  the  other  party  is  ad- 
dressed to  the  judge,  as  that  fact  is  a  pre- 
liminary to  the  introduction  of  the  evidence 
of  the  contents  of  the  instrument.  Dix  v. 
Atkins,  128  Mass.  43.  As  to  what  proof 
is  sufficient,  see  that  case,  and  Roberts  v. 
Spencer,  123  Mass.  397. 

(e)  Where  the  plaintiff  gave  notice  to 
the  defendant  to  produce  at  the  trial  an 
original  contract,  and  affixed  what  pur- 
ported to  be  a  copy  of  it  to  the  notice, 
and,  although  the  pretended  copy  was  not 
in  all  respects  correct,  secondary  evidence 
was  allowed  on  the  neglect  of  the  defen- 
dant to  produce  the  original,  it  was  held, 
that  the  defendant  could  not  use  the 
copy  attached  to  the  notice,  although  cer- 
tified to  be  correct  by  the  plaintiff,  while 
he  had  the  original  in  his  possession. 
Bogart  V.  Brown,   5  Pick.   18.     In   New 


York,  it  has  been  held  that  certain  courts 
have  authority  to  compel  a  defendant  in 
a  suit  pending  therein  to  produce  and  dis- 
cover books,  papers,  and  documents,  in 
his  possession  or  power,  relating  to  the 
merits  of  such  suit ;  and  if  the  defendant 
refuses  to  comply,  his  answer  may  be 
stricken  out,  and  judgment  rendered 
against  him  as  for  a  neglect  to  answer. 
Gould  V.  McCarty,  1  Kernan,  575.  lu 
Georgia,  a  party  may  be  required,  in  a 
proper  case,  to  produce  documents  to  be 
annexed  to  interrogatories  propounded  by 
the  party  calling  for  them,  the  courts 
requiring  that  a  copy  of  the  documents 
shall  be  left  in  the  place  of  the  original, 
to  be  used  as  such  in  case  the  original  be 
not  returned,  and  that  the  party  calling 
for  the  document  shall  give  security  to 
the  party  producing  it,  for  its  being  safely 
returned.  Faircloth  v.  Jordan,  15  Ga. 
511.  Where  the  counsel  in  a  case  have 
agreed  that  either  party  shall  produce, 
upon  notice  at  the  trial,  any  papers  which 
may  be  in  his  possession,  the  failure  of 
the  plaintiff  (the  agent  in  America  of  a 
firm  in  London)  to  produce  upon  such 
notice  an  invoice  of  goods  consigned  to 
his  principals  in  London,  is  not  such  a 
failure  to  comply  with  the  agreement  as 
will  admit  parol  testimony  of  the  contents 


700  LAW    OF    EVIDENCE.  [PART    III. 

§  561.  Notice  to  produce.  There  are  three  cases  in  which  such 
notice  to  produce  is  not  necessary.  First,  where  the  instrument 
to  be  produced  and  that  to  be  proved  are  duplicate  originals  ;  for, 
in  such  case,  the  original  being  in  the  hands  of  the  other  party, 
it  is  in  his  power  to  contradict  the  duplicate  original  by  produc- 
ing the  other,  if  they  vary ;  ^  secondly,  where  the  instrument  to  be 
proved  is  itself  a  notice,  such  as  a  notice  to  quit,  or  notice  of  the 
dishonor  of  a  bill  of  exchange;  and,  thirdly,  where,  from  the 
nature  of  the  action,  the  defendant  has  notice  that  the  plaintiff 
intends  to  charge  him  with  possession  of  the  instrument,  as,  for 
example,  in  trover  for  a  bill  of  exchange.  And  the  principle  of 
the  rule  does  not  require  notice  to  the  adverse  party  to  produce 
a  paper  belonging  to  a  third  person,  of  which  he  has  fraudulently 
obtained  possession;  as  where,  after  service  of  a  subpoena  duces 
tecum,  the  adverse  party  had  received  the  paper  from  the  witness 
in  fraud  of  the  subpoena.^ 

1  Jury  V.  Orchard,  2  B.  &  P.  39,  41  ;  Doe  v.  Somerton,  7  Q.  B.  58  ;  s.  c.  9  Jur 
775  ;  Swain  v.  Lewis,  2  C.  M.  &  R.  261. 

'^  2  Tidd's  Pr.  803.  Proof  that  the  adverse  party,  or  his  attorney,  has  the  instru- 
ment in  court,  does  not,  it  seems,  render  notice  to  produce  it  unnecessary  :  for  the  ob- 
ject of  the  notice  is  not  only  to  procure  the  paper,  but  to  give  the  party  an  opportunity 
to  provide  the  proper  testimony  to  support  or  impeach  it.  Doe  v.  Grey,  1  Stark.  283  ; 
Exall  V.  Partridge,  Id.  cit. ;  Knight  v.  ilarquis  of  Waterford,  4  Y.  &  Col.  284.  (a) 
The  rule,  as  to  dispensing  with  notice,  is  the  same  in  equity  as  at  law.  2  Dan.  Ch. 
Pr.  1023. 

of  the  invoice  ;  for  it  is  to  be  presumed  verse  party  has   fraudulently  or  forcibly 

that  the  invoice  had   been   forwarded   to  obtained  possession  of  it,  as  when,  after 

\he  consignees.     The  offer  of  the  plaintiff  action  brought,  he  has  received  it  from  a 

to  prove  that  such  was  the  fact,  and  the  witness  in  fraud  of  a  dxices  tecum.     Leeds 

concession  without  proof  by  the  defendant  v.  Cook,  4  Esp.  256  ;  Doe  v.  Ries,  7  Bing. 

that  it  was  so,  preclude  him  from  after-  724.     Nor  where  the  papers  are  beyond  the 

wards  objecting  that  proof  was  not  given,  jurisdiction    of    the    court.       Burton    v. 

Turners.  Yates,  16  How.  (U.  S.)  14.  Driggs,   20  Wall.    (U.  S.)  125.     See  also 

(a)  But  this  rule  has  been  abrogated  Doe   v.    Spitty,    3    B.  &;    Ad.    182.     Nor 

(if  it  ever  was  law,  which  seems  doubtful)  where  the  adverse  party  has  admitted  the 

in    England.      It  is  now  held  there  that  loss  of  the  document.     Eex  v.  Haworth,  4 

the  object  of  a  motion  to  produce  in  such  C.  &  P.  254  ;  Doe  v.  Spitty,  3  B.  &  Ad. 

a   case   is   merely   to   give    the    opposite  182.      Nor  when  the  party  in  possession 

party   sufficient   opportunity   to  produce,  might  himself  give  secondary  evidence  of 

if  he  pleases,  and  not  to  enable   him   to  its  contents.     Bartholomew  v.  Stephens,  8 

prepare  evidence  to   explain,    nullify,    or  C.    &   P.   728.     But    a  jjarty  cannot,  on 

confirm    it  ;    and,    therefore,     when    the  proof  of  the  destruction  of  a  document  by 

document  is  in  court,  at  the  time  of  the  his    opponent,    give    secondary    evidence 

trial,  a  notice  to  produce  it  immediately  without    notice  ;    because   the    document 

is  sufficient  to  render  secondary  evidence  may  still  be  in  existence,  a  fact  which  his 

of  its  contents  admissible,  if  it  be  not  pro-  opponent  may  show.     Doe  ik  Morris,  3  A. 

duced.     Dwyer  i;.  Collins,   12  Eng.   L.  &  &  E.  46.     A  rule  of  court,  that  a  notice 

Eq.  532  ;  s.  c.  7  Ex.  639.    And  an  attorney  to   produce  a   paper  must   precede   parol 

is  bound  to  answer  whether  a  document  evidence  of  its  contents,  is  waived  by  a 

is  in  his  possession,  or  elsewhere  in  court,  party's  offering  to  produce  it.     If  he  then 

Ibid.  ;   Brandt  v.   Klein,   17  Johns.  335  ;  fails  to  find   it,  but  asks  for  no   further 

Rhoades  i'.  Selin,  4  Wash.  C.  C.  718.     A  time,  the  parol    evidence    is    admissible. 

notice  need   not  be  given  when  the  ad-  Dwinell  v.    Larrabee,   33    Me.   46  4.     For 


CHAP.    VI.] 


PRIVATE   WRITINGS. 


701 


§  5G2.  To  whom  directed.  The  notice  may  be  directed  to  the 
party  or  to  his  attorney,  and  may  he  served  on  either;  and  it  must 
describe  the  writing  demanded,  so  as  to  leave  no  doubt  that  the 
party  was  aware  of  the  particular  instrument  intended  to  be  called 
for.i     But  as  to  the  time  and  place  of  the  service  no  precise  rule 

1  Rogers  v.  Custance,  2  M.  &  Rob.  179. 


the  purpose  of  proving  that  the  defendant 
has  fraudulently  conveyed  his  real  estate 
to  third  persons,  copies  of  the  deeds  there- 
of from  the  registry  are  admissible,  the 
originals  not  being  presumed  to  be  in  the 
possession  of  either  party  to  the  suit. 
Blanchard  v.  Young,  11  Gush.  341,  345. 
But  a  registry  copy  of  a  deed  of  land  is 
not  admissible  in  evidence  against  the 
grantee,  without  notice  to  him  to  pro- 
duce the  original.  Com.  v.  Emery,  2 
Gray,  80,  81 ;  Bourne  v.  Boston,  Id.  494, 
497.  In  delivering  the  opinion  of  the 
court  in  Com.  v.  Emery,  ict  supra,  Shaw, 
G.  J.,  said,  "The  rule,  as  to  the  use  of 
deeds  as  evidence,  in  this  Commonwealth, 
is  founded  partly  on  the  rules  of  common 
law,  but  modified  to  some  extent  by  the 
registry  system  established  here  by  stat- 
ute. The  theory  is  this  :  that  an  original 
deed  is  in  its  nature  more  authentic  and 
better  evidence  than  any  copy  can  be  ; 
that  a  copy  is  in  its  nature  secondary ; 
and  therefore  in  all  cases  original  deeds 
should  be  required,  if  they  can  be  had. 
But  as  this  would  be  burdensome  and  ex- 
pensive, if  not  impossible,  in  many  cases, 
some  relaxation  of  this  rule  was  necessary 
for  practical  purposes.  The  law  assumes 
that  the  grantee  is  the  keeper  of  deeds 
made  directly  to  himself ;  when,  then,  he 
has  occasion  to  prove  any  fact  by  such 
deed,  he  cannot  use  a  copy,  because  it 
would  be  offering  inferior  evidence,  when 
in  theory  of  law  the  superior  is  in  his 
own  possession  or  power.  It  is  only  on 
proof  of  the  loss  of  the  original,  in  such 
case,  that  any  secondary  evidence  can  be 
received.  Our  system  of  conveyancing, 
modified  by  the  registry  law,  is,  that  each 
grantee  retains  the  deed  made  immedi- 
ately to  himself,  to  enable  him  to  make 
good  his  warranties.  Succeeding  gran- 
tees do  not,  as  a  matter  of  course,  take 
possession  of  deeds  made  to  preceding 
parties,  so  as  to  be  able  to  prove  a  chain 
of  title,  by  a  series  of  original  deeds. 
Every  grantee,  therefore,  is  the  keeper  of 
his  own  deed,  and  of  his  own  deed  only. 
But  there  is  another  rule  of  practice 
arising  from  the  registry  law,  and  the 
u.sage  under  it,  which  is,  that  all  deeds, 
before  being  offered  in  evidence  as  proof 


of  title,  must  be  registered.  The  regis- 
ter of  deeds,  therefore,  is  an  officer  of 
the  law,  with  comi)etent  authority  to  re- 
ceive, compare,  and  record  deeds  ;  his 
certificate  verifies  tiie  copy  as  a  true 
transcript  of  the  original,  and  the  next 
best  evidence  to  prove  the  existence  of 
the  deed  ;  though  it  follows  as  a  conse- 
quence, that  such  copy  is  legal  and  com- 
petent evidence,  and  dispenses  with  origi- 
nal proof  of  its  execution  by  attesting 
witnesses.  In  cases,  therefore,  in  whicli 
the  original,  in  theory  of  law,  is  not  in 
the  custody  or  power  of  the  party  having 
occasion  to  use  it,  the  certified  office  copy 
is  "prima  facie  evidence  of  the  original  and 
its  execution,  subject  to  be  controlled  by 
rebutting  evidence.  But  as  this  arises 
from  the  consideration,  that  the  original 
is  not  in  the  power  of  the  party  relying 
on  it,  the  rule  does  not  apply,  where  such 
original  is,  in  theory  of  law,  in  jjossession 
of  the  adverse  party  ;  because  upon  no- 
ti(;e  the  adverse  party  is  bound  to  pro- 
duce it,  or  put  himself  in  such  position, 
that  any  secondary  evidence  may  be 
given.  Should  it  be  objected  that,  upon 
notice  to  the  adverse  party  to  produce  an 
original,  and  the  tender  of  a  paper  in 
answer  to  the  notice,  the  party  calling 
for  the  deed  might  deny  that  the  pai)er 
tendered  was  the  true  paper  called  for, 
it  would  be  easy  to  ascertain  the  identity 
of  the  paper,  by  a  compaiison  of  the  con- 
tents of  the  paper  tendered  with  the 
copy  offered,  and  by  the  official  certifi- 
cate, which  the  register  of  deeds  is  re- 
quired to  make  on  the  original,  when  it 
is  recorded.  This  construction  of  the 
rule  will  carry  out  the  principle  on  which 
it  is  founded,  to  insist  on  the  better  evi- 
dence when  it  can  practically  be  had,  and 
allow  the  secondary  only  when  it  is  ne- 
cessary." See,  as  to  fraud,  or  the  form  of 
the  action,  excusing  notice  to  produce 
papers  in  the  hands  of  the  adversary, 
Nealley  v.  Greenough,  5  Foster,  325. 
But  where  the  notice  is  an  act  of  pos- 
session, warning  others  of  the  plaintifTs 
claim,  a  copy  is  not  evidence,  until  the 
absence  of  the  original  is  accounted  for. 
Lombardo  v.  Ferguson,  15  Cal.  372. 


702  LAW    OF    EVIDENCE.  [PART    III. 

can  be  laid  down,  except  that  it  must  be  such  as  to  enable  the 
party,  under  the  known  circumstances  of  the  case,  to  comply  with 
the  call.  Generally,  if  the  party  dwells  in  another  town  than 
that  in  which  the  trial  is  had,  a  service  on  him  at  the  place  where 
the  trial  is  had,  or  after  he  has  left  home  to  attend  the  court,  is 
not  sufhcient.2(a)  But  if  the  party  has  gone  abroad,  leaving  the 
cause  in  the  hands  of  his  attorney,  it  will  be  presumed  that  he 
left  with  the  attorney  all  the  papers  material  to  the  cause,  and 
the  notice  should  therefore  be  served  on  the  latter.  The  notice, 
also,  should  generally  be  served  previous  to  the  commencement 
of  the  trial.  3  (6) 

§  563.  When  papers  may  be  called  for.  The  regular  time  for  call- 
ing for  the  production  of  papers  is  not  until  the  party  who  requires 
them  has  entered  upon  his  case ;  until  which  time  the  other  party 
may  refuse  to  produce  them,  and  no  cross-examination,  as  to  their 
contents,  is  usually  permitted,  ^(c)  The  production  of  papers, 
upon  notice,  does  not  make  them  evidence  in  the  cause,  unless 
the  party  calling  for  them  inspects  them,  so  as  to  become  ac- 
quainted with  their  contents ;  in  which  case,  the  English  rule  is, 
that  they  are  admitted  as  evidence  for  both  parties.^  The  reason 
is,  that  it  would  give  an  unconscionable  advantage  to  enable  a 
party  to  pry  into  the  affairs  of  his  adversary  for  the  purpose  of 
compelling  him  to  furnish  evidence  against  himself,  without,  at 

2  George  v.  Thompson,  4  Dowl.  656  ;  Foster  v.  Pointer,  9  C.  &  P.  718  See,  also 
as  to  the  time  of  service.  Holt  v.  Miers,  9  C.  &  P.  191  ;  Reg  v.  Kitsen,  20  Eng.  L.  & 
Eq.  590  ;  Dears.  C.  C.  187.  As  to  the  form  and  service  of  notice  to  quit,  see  post, 
vol'  ii.  §^  322-324  ;  Doe  v.  Somerton,  7  Q.  B.  58.  ,     „  o    ,   r. 

3  2  Tidd's  Pr  803  •  Hughes  v.  Budd,  8  Dowl.  315  ;  Firkin  v.  Edwards,  9  C.  &  P. 
478  ;  Gibbons  t;.' Powell,  Id.  634  ;  Bate  v.  Kiusey,  1  C.  M.  &  R.  38  ;  Emerson  t;  Fisk, 
6  Greenl  200  •  1  Paine  &  Duel's  Pr.  485,  486.  The  notice  must  point  out,  with  some 
decrree  of  precision,  the  papers  required.  Notice  to  produce  "all  letters,  papers,  and 
documents  touching  or  concerning  the  bill  of  exchange  mentioned  in  the  declaration, 
and  the  debt  sought  to  be  recovered,"  has  been  held  too  general  France  r.  Lucy,  Kv. 
&  M  341  So  "  to  produce  letters,  and  copies  of  letters,  and  all  books  relating  to  tins 
cause."  Jones  v.  Edwards,  1  McCl.  &  Y.  139.  But  notice  to  produce  all  otters  writ- 
ten by  the  party  to  and  received  by  the  other,  between  the  years  1837  and  1841,  inclu- 
sive, was  held  sufficient  to  entitle  the  party  to  call  for  a  particular  letter.  Morns  v. 
Hau'ser,  2  M.  &  Rob.  392. 

*  Supra,  §§  447,  463,  464. 

<>  2  Tidd's  Pr.  804  ;  Calvert  r.  Flower,  7  C.  &  P.  386. 

(a)  Glenn  v.  Rogers,  3  Md.  312.  (c)  But  where  the  plaintiff  on  his  ex- 

ib)  In  Chattaes  v.  Raitt,  20  Ohio,  132,  amination  in  chief  denies  the  existence  of 

it  is  also  said,  that,  as  a  general  rule,  the  a  written  contract,  the  defendant  may  m- 

notice   must    he   given    before    the   trial,  terpose,   and   give   evidence    upon    a   col- 

But  this  is  a  prelfminary  question,  for  the  lateral  issue   whether  there^was  a  written 

discretion  of  the  court.     Ante,  §  49,  note  contract   before  the  plaintiff  is  allowed  to 

sub  finem.     And  see  Sturm  v.  Jeffree,  2  C.  give  evulence^of  its  terms.     Cox  v.  Couve- 

&    K.    442.      Unnecessary    inconvenience  less,  2  F.  &  F.  139. 
must  not  be  imposed  upon  the  party  noti- 
fied.    Foster  v.  Pointer,  9  C.  &  P.  720. 


CHAP.    VI.]  PRIVATE   WRITINGS.  703 

the  same  time,  subjecting  him  to  the  risk  of  making  whatever  he 
inspects  evidence  for  both  parties.  But  in  the  American  courts, 
the  rule  on  this  subject  is  not  uniform.  ^  (ft) 

§  564.  Alterations.  If,  on  the  production  of  the  instrument,  it 
appears  to  have  been  altered,  it  is  incumbent  on  the  party  offering 
it  in  evidence  to  explain  this  appearance.  ^  Every  alteration  on  the 
face  of  a  written  instrument  detracts  from  its  credit,  and  renders 
it  suspicious;  and  this  suspicion  the  party  claiming  under  it  is 
ordinarily  held  bound  to  remove.^     If  the  alteration  is  noted  in 

8  1  Paine  &  Duel's  Pr.  484  ;  Withers  v.  Gillespy,  7  S.  &  R.  14.  The  English  rule 
was  adopted  in  Jordan  v.  Wilkins,  2  Wash.  C.  C.  482,  484,  n.  ;  Randel  v.  Chesapeake, 
&  Del.  Can.  Co.,  1  Harrin^t.  233,  284  ;  Penobscot  Boom  Corp.  v.  Lamson,  4  Shepl. 
224 ;  Anderson  v.  Root,  8  Sni.  &  M.  362  ;  Com.  v.  Davidson,  1  Cush.  33. 

1  The  Roman  civil  law  on  the  subject  of  alterations  agrees  in  the  main  with  the 
common  law  ;  but  the  latter,  in  this  as  in  other  cases,  has  greatly  the  advantage,  in  its 
facility  of  adaptation  to  the  actual  state  of  the  facts.  The  general  rule  is  the  same  in 
both  codes.  "  Rasa  scriptura  falsa  piaesumitur,  et  tanquam  falsa  rejicitur  ;  prcesertiin 
quando  rasura  facta  est  per  eum,  qui  utitur  instrumento  raso."  Masitard.  vol.  iv.  ; 
Concl.  1261,  n.  1,  3.  But  if  immaterial,  or  free  from  sus[)icion,  an  alteration  or  rasure 
does  not  vitiate.  "  Si  rasura  non  sit  in  loco  substantiali,  et  susi)ecto,  non  reddit  fal- 
sum  instrumentum."  Id.  n.  9.  If  it  appeared,  on  its  face,  to  be  the  autography  of  the 
notary  who  drew  the  instrument,  that  is,  a  contemporaneous  act,  it  was  by  some 
deemed  valid;  "  (juaravis  scriptura  sit  abrasa  in  parte  substantiali,  sed  ita  bene  re- 
scripta,  ut  aperte  dignoscatur,  id  manu  ejusdem  Notarii  fuisse."  Id.  n.  14.  But  others 
contended,  that  this  was  not  sufficient  to  remove  all  suspicion,  and  render  the  uistru- 
ment  valid,  unless  the  alteration  was  mentioned  and  explained  at  the  end  of  the  instru- 
ment. "  Si  Notarius  erravit  in  scriptura,  ita  ut  oporteat  aliquid  radere  et  reponere, 
vel  facere  aliquam  lineam  in  margine,  debet  ad  evitandam  suspicionem,  in  fine  scrip- 
turse  ac  chirographi  continuando  facere  mentionem,  qualiter  ipse  abrasit  tale  verbum, 
in  tali  linea,  vel  facit  talem  lineam  in  margine."  Id.  n.  16.  But,  in  the  absence  of 
all  evidence  to  the  contrary,  it  seems  that  alterations  were  presumed  to  be  contcnipo- 
raneous  with  the  execution  of  the  instrument.  "In  dubio  autem  hujusmodi  abrasiones 
seu  cancellationes  priesumuntur  semper  factae  tempore  conceptionis  scriptura,  ante- 
quam  absoluta  fuerit."  Id.  n.  18.  If  the  suspicion,  arising  from  the  alteration  when 
considered  by  itself,  were  removed,  by  taking  it  in  connection  with  the  context,  it  was 
sufficient  ;  —  "  cum  verba  antecedentia  et  seqnentia  demonstrant  necessario  ita  esse 
legendum,  ut  in  rasura  scripturfe  reperitur."  Id.  n.  19.  The  instrument  might  also 
be  held  good  at  the  discretion  of  the  judge,  if  the  original  reading  were  still  apparent, 
—  "  si  sensus  rectus  percipi  potest,"  —  notwithstanding  the  rasure.  Id.  n.  20;  or  if  the 
part  erased  could  be  ascertained  by  other  instruments  ; —  "si  per  alias  scripturas  pars 
abrasa  declarari  possit."  Id.  n.  21.  If  the  instrument  were  produced  in  court  by  the 
adverse  party,  upon  legal  compulsion,  no  alterations  apparent  upon  it  were  permitted 
to  operate  to  the  prejudice  of  the  instrument,  against  the  party  calling  for  its  ])roduc- 
tion.  "Si  scriptura,  ac  instrumentum  reperiatur  penes  adversarium,  et  judex  eum 
coget  tale  instrumentum  exhibere  in  judicio  :  quamvis  enim  eo  casu  scriptura  sit  abra- 
sa in  parte  substantiali ;  tamen  non  vitiata,  nee  falsa  redditur  contra  me,  et  in  mei 
priBJudicium  ;  imo,  ei  prpestatur  fides  in  omnibus,  in  quibus  ex  ilia  potest  snmi  sen- 
sus"; prsesumitur  enim  adversarium  dolose  abrasisse.  Abrasio,  sive  cancellatio,  prae- 
suinitur  facta  ab  60  penes  quem  repetitur  instrumentum."  Id.  n.  22,  23.  Aiid  it  a 
written  contract  or  act  were  executed  in  duplicate,  an  alteration  of  one  of  the  originals 
was  held  not  to  operate  to  the  injury  of  the  other.  "Si  de  eadem  re,  et  eodem  con- 
tractu, fuerint  confectae  duae  scripturae,  sive  instrumenta,  abrasio  in  uno  harum  scriptu- 
rarum,  etiam  substantiali  loco  est  alterura  non  vitiat."     Id.  n.  24. 

2  Perk.  Conv.  55  ;  Henman  v.  Dickinson,  5  Bing.  183,  184  ;  Knight  v.  Clements, 

(6)    The   English  rule  is   followed   in  Maine   (Blake  v.  Russ,  33  Me.  360),  but 

Massachusetts    (Clark  v.   Fletcher,    1   Al-  not  in  New  Hampshire  (Austin  v.  Thoinp- 

len,  53;  Long  v.  Drew,  lU  Mass.  77.    Cf.  son,  45  N.  H.  113). 
Reed   v.   Anderson,    12    Cush.    481),   and 


704  LAW    OF    EVIDENCE,  [PART    in. 

the  attestation  clause  as  having  been  made  before  the  execution 
of  the  instrument,  it  is  sufficiently  accounted  for,  and  the  instru- 
ment is  relieved  from  that  suspicion.  And  if  it  appears  in  the 
same  handwriting  and  ink  with  the  body  of  the  instrument,  it  may 
suffice.  So,  if  the  alteration  is  against  the  interest  of  the  party 
deriving  title  under  the  instrument,  as,  if  it  be  a  bond  or  note, 
altered  to  a  less  sum,  the  law  does  not  so  far  presume  that  it  was 
improperly  made  as  to  throw  on  him  the  burden  of  accounting 
for  it. 2  And,  generally  speaking,  if  nothing  appears  to  the  con- 
trary, the  alteration  will  be  presumed  to  be  contemporaneous  with 
the  execution  of  the  instrument.*  But  if  any  ground  of  suspicion 
is  apparent  upon  the  face  of  the  instrument,  the  law  presumes 
nothing,  but  leaves  the  question  of  the  time  when  it  was  done  as 
well  as  that  of  the  person  by  whom,  and  the  intent  with  which, 
the  alteration  was  made,  as  matters  of  fact,  to  be  ultimately  found 
by  the  jury  upon  proofs  to  be  adduced  by  the  party  offering  the 
instrument  in  evidence.^ 

8  Ad.  &  El.  215  ;  Newcomb  v.  Presbiey,  8  Met.  406.  But  where  a  farm  was  devised 
from  year  to  year  by  parol,  and  afterwards  an  agreement  was  signed,  containing  stipu- 
lations as  to  the  mode  of  tillage,  for  breach  of  which  an  action  was  brought,  and,  on 
producing  the  agreement,  it  af)peared  that  the  term  of  years  had  been  written  seven, 
but  altered  to  fourteen  ;  it  was  held  that  this  alteration,  being  immaterial  to  the  parol 
contract,  need  not  be  explained  by  the  plaintiff,  Earl  of  Falmouth  v.  Roberts,  9  M.  & 
"W.  469.  See  further,  Cariss  v.  Tattersall,  2  Man.  &  Gr.  890  ;  Clifford  v.  Parker, 
Id.  909. 

3  Bailey  v.  Taylor,  11  Conn.  531  ;  Coulson  v.  Walton,  9  Pet.  62. 

*  Trowel  v.  Castle,  1  Keb.  22  ;  Fitzgerald  o.  Fauconberge,  Fitzg.  207,  213  ;  Baile^ 
r.  Taylor,  11  Conn.  531,  534  ;  Gooch  v.  Bryant,  1  Shepl.  386,  390  ;  Crabtree  v.  Clark, 
7  Shepl.  337  ;  Vanhorne  v.  Dorrance,  2  Dall.  306.  And  see  Pullen  ■;;.  Hutchinson, 
12  Shepl.  249,  254  ;  Wikoff's  Appeal,  3  Am.  Law  Jour.  N.  s.  493,  503.  In  Morris  v. 
Vanderen,  1  Dall.  67,  and  Prevost  v.  Gratz,  1  Pet.  C.  C.  364,  369,  it  was  held,  that  an 
alteration  should  be  presumed  to  have  been  made  after  the  execution  of  the  instru- 
ment ;  but  this  has  been  overruled  in  the  United  States  as  contrary  to  the  principle  of 
the  law,  which  never  presumes  wrong.  The  reporter's  marginal  notes  in  Burgoyne  v. 
Showier,  1  Robb.  Eccl.  5,  and  Cooper  v.  Bockett,  4  Moore,  P.  C.  C.  419,  state  the 
broad  proposition,  that  alterations  in  a  unll,  not  accounted  for,  are  prima  facie  pre- 
sumed to  have  been  made  after  its  execution.  But,  on  examination  of  these  cases, 
they  are  found  to  turn  entirely  on  the  provisions  of  the  Statute  of  Wills,  1  Vict. 
c.  26,  §  21,  which  directs  that  all  alterations,  made  before  the  execution  of  the  will, 
be  noted  in  a  memorandum  upon  the  will,  and  attested  by  the  testator  and  witnesses. 
If  this  direction  is  not  complied  with,  it  may  well  be  presumed  that  the  alterations 
were  subsequently  made.  And  so  it  was  held,  upon  the  language  of  that  statute,  and 
of  the  Statute  of  Frauds  respecting  wills,  in  Doe  v.  Palmer,  15  Jur.  836,  839;  iu 
which  the  case  of  Cooper  v.  Bockett  was  cited  by  Lord  Campbell,  and  apjtroved,  upon 
the  ground  of  the  statute.  The  application  of  tliis  rule  to  deeds  was  denied  in  Doe  v. 
Catamore,  15  Jur.  728  ;  5  Eng.  Law  &  Rep.  349  [and  cases  cited  in  note]  ;  where  it  was 
held,  that  if  the  contrary  be  not  proved,  the  interlineation  in  a  deed  is  to  be  presumed 
to  have  been  made  at  the  time  of  its  execution.  And  see  Co.  Lit.  225  h,  and  note  by 
Butler  ;  Best  on  Presumptions,  §  75. 

In  the  case  of  alterations  in  a  will,  it  was  held,  in  Doe  i'.  Palmer,  supra,  that  the 
declarations  of  the  testator  were  admissible  to  rebut  the  presumption  of  fraud  in  the 
alterations. 

*  The  cases  on  this  subject  are  not  in  perfect  harmony ;  but  they  are  understood 
folly  to  support  the  doctrine  in  the  text.     They  all  agree,  that  where  any  suspicion  is 


CHAP.    VI.]  PRIVATE   WRITINGS.  705 

§  505.  Same  subject.  Though  the  effect  of  the  alteration  of  a 
legal  instrument  is  generally  discussed  with  reference  to  deeds, 

raised  as  to  the  gemiiiieness  of  an  altered  instrument,  whether  it  be  apparent  upon 
inspection,  or  made  so  hy  extraneous  evideTice,  the  party  producing,'  tlie  instrument, 
and  claiming  under  it,  is  bound  to  remove  the  susjiicion  by  accounting  lor  the  altera- 
tion. It  is  also  generally  agreed,  that  inasmuch  as  fraud  is  never  to  bo  presumed, 
therefore,  if  no  fiarticular  circumstances  of  suspicion  attach  to  an  altered  instrument, 
tlie  alteration  is  to  be  jjresumed  innocent,  or  made  ]irior  to  its  execution.  ( Jooch  v. 
15ryant,  1  Slicid.  386  ;  Crabtree  v.  Clark,  7  Shepl.  337  ;  Wickes  v.  Caulk,  5  II.  &  J. 
41 ";  Oiliet  v.  Sweat,  1  Gilm.  475  ;  Doe  i;.  Catamore,  1.^  Jur.  728  ;  5  Kng.  La-.v  &  Ei]. 
319  [and  cases  cited  in  note]  ;  Co.  Lit.  225  b,  note  by  Butler.  («)  In  Jackson  v. 
Osborn,  2  Wend.  555,  it  was  held,  that  the  j)arty  clainnng  under  a  deed  was  bound 
to  account  for  the  alterations  in  it,  and  that  no  presumption  was  to  be  made  in  its 
favor  ;  but  in  Bailey  v.  Taylor,  11  Conn.  531,  it  was  held,  that  nothing  was  to  be  pre- 
sumed either  way,  but  the  tpiestion  was  to  be  submitted  freely  to  the  jury. 

But  an  exception  to  this  rule  of  the  piesumption  of  innocence  seems  to  be  admitted 
in  the  case  of  negotiable  paper  ;  it  having  beeji  held,  that  the  party  producing  and 
claiming  under  the  paper  is  bound  to  exi)lain  every  apj)arent  and  material  alteration, 
the  operation  of  which  would  be  in  his  own  favor.  Knight  v.  Clements,  8  Ad.  &  El. 
215  ;  Clitford  v.  Parker,  2  M.  &  0.  909  ;  Simpson  v.  Stackhouse,  9  Barr,  186  ;  Mc- 
Micken  V.  Beauchamji,  2  Miller  (La.),  290.  See  also  Henman  v.  Di.'kinson,  5  Bing. 
183;  Bishop  v.  Chainbre,  3  C.  &  P.  55  ;  Humphrevs  v.  Guillow,  13  N.  H.  3S5 ;  Hills 
V.  Barnes,  11  N.  H.  395  ;  Taylor  v.  Mosely,  6  C.  &"P.  273  ;  Whitfield  i'.  Cdllingwood, 
1  Car.  &  Kir.  325  ;  Davis  v.'  Carlisle,  6  Ala.  707  ;  Walters  v.  Short,  5  Gilm.  252  ; 
Cariss  v.  Tattersall,  2  M.  &  G.  890.  But  in  Davis  v.  .Jenney,  1  Met.  221,  it  was  held 
that  the  burden  of  proof  was  on  the  defendant.  Clark  v.  Eckstein,  22  i'enu.  St.  507  ; 
Paine  v.  Edseli,  19  Id.  178.  (b) 

Another  exception  has  been  allowed,  where  the  instrument  is,  by  the  rules  of  prac- 
tice, to  be  received  as  genuine,  unless  its  genuineness  is  denied  on  oath  by  the  party, 
and  he  does  so  ;  for  his  oath  is  deemed  sufficient  to  destroy  the  presumption  of  inno- 
cence in  regard  to  the  alteration,  and  to  place  the  in.strument  in  the  condition  of  a  sus- 
pected paper.     Walters  v.  Short,  5  Gilm.  252. 

It  is  also  clear,  that  it  is  for  the  court  to  determine,  in  the  first  instance,  whether 
the  alteration  is  so  far  accounted  for,  as  to  permit  the  instrument  to  be  read  in  evidence 
to  the  jury,  who  are  the  ultimate  judges  of  the  fact.  Tillou  v.  Clinton,  &c.  Ins.  Co., 
7  Barb.  561  ;  Ross  v.  Gouhl,  5  Greenl.  204.  (c)  But  whether,  in  the  absence  of  all 
other  eviden^:e,  the  jury  may  determine  the  time  and  character  of  the  alteration  from 
inspection  alone,  is  not  universally  agreed.  In  some  cases  they  have  been  permitted  to 
do  so.  Bailey  v.  Taylor,  11  Conn.  531  ;  Gooch  v.  Bryant,  1  Shepl.  386  ;  Crabtree  v. 
Clark,  7  Shepl.  337  ;"  Doe  v.  Catamore,  15  Jur.  728  {5  Eng.  Law  &  Eq.  349;  Vaii- 
horne  v.  Dorrance,  2  Dall.  306.  (r^)  And  see  Wickes  v.  Caulk,  5  H.  &  J.  41  ;  Pullen  v. 
Shaw,  3  Dev.  238  ;  in  which  last  case  it  was  held,  that  where  the  alteration  was  appa- 
rently against  the  interest  of  the  holder  of  the  instrument,  it  should  be  presumed  to 
have  been  made  prior  to  its  exi'cution.  But  in  some  other  cases,  the  courts  have  re- 
quired the  exibition  of  some  adminicular  proof,  being  of  opinion  that  the  jury  ought 
not  to  be  left  to  conjecture  alone,  upon  mere  inspection  of  the  instrument.  See  Knight 
V.  Clements,  Clifford  v.  Parker,  and  Cariss  v.  Tattersall,  supra. 

Other  case.s,  in  accordance  with  the  rules  above  stated,  are  the  following :  Cumber- 
fa)  Boothby  v.  Stanley,  34  Me.  515;     8  Barb.  514;  Jordan  v.  Stewart,  23  Pa. 
North  River  Meadow  Co.   v.  Shrewsbury     St.  244  ;  Huntington  v.    Finch,    3    Ohio, 
Church,  2  N.  J.  Ecj.  424.     In  an  action  to     N.  s.  445. 

foreclose  a  mortgage,   the  burden  of  proof  {b)  On  reference  to  Davis   v.    Jenney, 

is  on  the  plaintiff  to  show  that  the  inter-  the  point  does  not  seem  to  have  been  de- 
lineations, alterations,  and  erasures  therein  cided  ;  and  so  it  appeared  to  the  court, 
were  made  before,  or  at  the  time  of,  its  which,  in  a  subsequent  case  (Wilde  v. 
execution,  and  there  is  no  presumption  Armsby,  6  Gush.  (Mass.)  314),  held  to  the 
that  they  were  so  made,  or  that  they  were     contrary. 

made  without  fraud.     Ely  v.  Elj',  19  Law  (c)   l^ut  see  Clark  v.   Eckstein,  22  Pa. 

Rep.  (9  N.  s.)  697.      See  also   Wilde   v.     St.  507. 
Armsby,  6  Cush.  314  ;  Acker  v.  Ledyard,  {d)  Printup  v.  Mitchell,  17  Ga.  558. 

VOL.    I.  —  45 


Y06  LAW   OF   EVIDENCE,  [PART   III. 

yet  the  principle  is  applicable  to  all  other  instruments,  (a)  The 
early  decisions  were  chiefly  upon  deeds,  because  almost  all  written 
en'^agemcnts  were  anciently  in  that  form;  but  they  establish  the 
general  proposition,  that  written  instruments  which  arc  altered, 
in  the  legal  sense  of  that  term,  as  hereafter  explained,  are  thereby 
made  void.'^  (b)  The  grounds  of  this  doctrine  are  twofold.  The 
first  is  that  of  public  policy,  to  prevent  fraud,  by  not  permitting 
a  man  to  take  the  chance  of  committing  a  fraud  without  running 
any  risk  of  losing  by  the  event  when  it  is  detected. ^  The  other 
is  to  insure  the  identity  of  the  instrument,  and  prevent  the  sub- 
stitution of  another  without  the  privity  of  the  party  concerned.^ 
The  instrument  derives  its  legal  virtue  from  its  being  the  sole 
repository  of  the  agreement  of  the  parties,  solemnly  adopted  as 
such,  and  attested  by  the  signature  of  the  party  engaging  to  per- 
form it.  Any  alteration,  therefore,  which  causes  it  to  speak  a 
language  different  in  legal  effect  from  that  which  it  originally 
spake,  is  a  material  alteration. 

§  566.  Alteration  and  spoliation.  A  distinction,  however,  is  to 
be  observed  between  the  alteration  and  the  spoliation  of  an  in- 
strument as  to  the  legal  consequences.     An  alteration  is  an  act 

land  Bank  v.  Hall,  1  Halst.  215  ;  Savre  v.  Reynolds,  2  South.  737  ;  Mathews  v.  Coalter, 
9  Mo  705  ■  Herrick  v.  Malin,  22  Wend.  388  ;  Barrington  v.  Bank  of  Washington,  14 
S  &  R.  405  •  Horry  District  v.  Hanion,  1  N.  &  McC.  554  ;  Haffelfinger  c.  Shutz,  16 
S  &  K*  44  •  Beanian  v.  Russell,  20  Vt.  205.  In  this  last  case  the  subject  of  altera- 
tions i.s  very  fully  considered  and  the  authorities  classed  and  examined  in  the  able 
iudc'ment  delivered  by  Hall.  J.  Where  an  alteration  is  apjiarent,  it  has  been  held, 
that  the  party  impeaching  the  instrument  may  prove  collateral  facts  of  a  general  char- 
acter such  as  alterations  in  other  notes,  which  formed  the  consideration  tor  the  note  m 
question,  tending  to  show  that  the  alteration  in  it  was  fraudulent.  Rjinkin  v.  Black- 
well,  2  Johns.  Cas.  198.  o  t    •  i     oko 

1  Masters  v.  Miller,  4  T.  R.  329,  330  ;  Newell  v.  Mayberry,  3  Leigh,  250. 

2  Masters  v.  Miller,  4  T.  R.  329,  per  Ld.  Kenyon. 

3  Sanderson  v.  Symonds,  1  B.  &  B.  430,  per  Dallas,  C.  J.  It  is  on  this  ground  that 
the  alteration  of  a  deed,  in  an  immaterial  part,  is  sometimes  fatal,  where  its  identity  is 
put  in  issue  by  the  i^leadings,  every  part  of  the  writing  being  then  material  to  the 
identity.     See  supra,  §§  58,  69  ;  Hunt  v.  Adams,  6  Mass.  521. 

(ri)  Entries  in  books  of  account  are  not  tion,  and  was  approved  by  the  judge  of 

instruments   within    the   m<>aning   of  the  probate  ;  and  it  was  held  that  the  bond 

rule      Adams  v.  CouUiard,  102  Mass.  167.  though  binding  on  the  principal,  was  void 

An  entry  in  an  account-book,  afterwards  as  to  all  the  sureties.     Howe  v.  Peabody 

altered,  is,  in  the  absence  of  explanation,  2  Gray,  556      See  Taylor  ^.  Johnson    17 

to  be  presumed  to  be  in  accordance  with  Ga.  521;  Phi  lips r  Wells,  2  Sneed  (Tenn.), 

the  facts  at  the  time  of  entry.     Shells  v.  154;  Ledford  v    Vandyke,   Busbee,   Law 

West    17  Cal    324  480  ;   Rurchfield  v.  Moore,  2o  Eng.  Law  & 

(h)  A  probate  bond  executed  by  a  prin-  Eq.  123;  3  Kl.  &  Bl.  683.     A  note  mate- 

cipal  and  two  sureties  was  altered  by  the  rially  altered  in  its  amount,  or  otherwise, 

iudtre  of  ])robate  with  the  consent  of  the  is  thereby  avoided  m  toto  as  a  security,  so 

principal,  but  without   the  knowledge  of  that  no  action  can  be  maintained  upon  it, 

the  sureties,  by  increasing  the  penal  sum,  even  for  the  amount  promised  before  the 

and  was  then  executed  by  two  additional  alteration.     Meyer   v.   Huneke,  5o   JN.  Y. 

sureties  who  did  not  know  of  the  altera-  412. 


CHAP.    VI.]  PRIVATE    WRITINGS.  707 

done  upon  the  instrument  by  which  its  meaning  or  language  is 
changed.  If  what  is  written  upon  or  erased  from  the  instrument 
has  no  tendency  to  produce  this  result,  or  to  mislead  any  person, 
it  is  not  an  alteration.  The  term  is,  at  this  day,  usually  apt)lied 
to  the  act  of  the  party  entitled  under  the  deed  or  instrument,  and 
imports  some  fraud  or  improper  design  on  his  part  to  change  its 
effect.  But  the  act  of  a  stranger,  without  the  participation  of  the 
party  interested,  is  a  mere  spoliation  or  mutilation  of  the  instru- 
ment, not  changing  its  legal  operations  so  long  as  the  original 
writing  remains  legible,  and,  if  it  be  a  deed,  any  trace  remains 
of  the  seal.  If,  by  the  unlawful  act  of  a  stranger,  the  instrument 
is  mutilated  or  defaced,  so  that  its  identity  is  gone,  the  law  re- 
gards the  act,  so  far  as  the  rights  of  the  parties  to  the  instrument 
are  concerned,  merely  as  an  accidental  destruction  of  primary  evi- 
dence, compelling  a  resort  to  that  which  is  secondary;  and,  in 
such  case,  the  mutilated  portion  may  be  admitted  as  secondary 
evidence  of  so  much  of  the  original  instrument.  Thus,  if  it  be  a 
deed,  and  the  party  would  plead  it,  it  cannot  be  pleaded  with  a 
profert,  but  the  want  of  profert  must  be  excused  by  an  allegation 
that  the  deed,  meaning  its  legal  identity  as  a  deed,  has  been  ac- 
cidentally, and  without  the  fault  of  the  party,  destroyed.  ^  And 
whether  it  be  a  deed  or  other  instrument,  its  original  tenor  must 
be  substantially  shown,  and  the  alteration  or  mutilation  accounted 
for,  in  the  same  manner  as  if  it  were  lost. 

§  567.  Immaterial  alterations.  In  considering  the  effect  of 
alterations  made  by  the  party  himself,  who  holds  the  instrument, 
a  further  distinction  is  to  be  observed  between  the  insertion  of 

1  Powers  V.  Ware,  2  Pick.  451 ;  Read  v.  Brookman,  3  T.  R.  152  ;  Morrill  v.  Otis, 
12  N.  H.  466.  The  necessity  of  some  fraudulent  intent,  carried  home  to  the  party 
claiming  under  the  instruuKMit,  in  order  to  render  the  alteration  fatal,  was  strongly 
insisted  on  by  Duller,  J.,  in  Masters  v.  Miller,  4  T.  R.  334,  335.  And,  on  this  giiound, 
at  least  tacitly  assumed,  the  old  cases,  to  the  effect  that  an  alteration  of  a  deed  by  a 
stranger,  in  a  material  part,  avoids  the  deed,  have  been  overruled.  In  the  following 
cases,  the  alteration  of  a  writing,  without  fraudulent  intent,  has  been  treated  as  a 
merely  accidental  spoliation.  Henfree  v.  Bromley,  6  East,  309  ;  Cutts,  in  error,  v. 
United  States,  1  Gall.  69;  United  States  v.  Spalding,  2  Mason,  478  ;  Rees  v.  Over- 
haugh,  6  Cowen,  746;  Lewis  i'.  Payn,  8  Cowen,  71;  Jackson  r.  Mnlin,  15  .Johns.  297, 
per  Piatt,  J.  ;  Nichols  u.  Johnson,  10  Conn.  192  ;  Marshall  v.  Gougler,  10  S.  &  ]>.  164  ; 
Palm.  403  ;  Wilkinson  v.  John.son,  3  B.  &  C.  428  ;  Raper  v.  Birkbeck,  15  East,  17.  (b) 
The  old  doctrine,  that  every  material  alteration  of  a  deed,  even  by  a  stranger,  and 
without  privity  of  either  party,  avoided  the  deed,  was  strongly  condemned  by  Story,  J., 
in  LTnited  States  v.  Spalding,  supra,  as  repugnant  to  common  .sense  and  justice,  as  in- 
flicting on  an  innocent  party  all  the  losses  occasioned  by  mistake,  b}'  accident,  liy  the 
wrongful  acts  of  third  persons,  or  by  the  providence  of  Heaven  ;  and  which  ought  to 
have  the  support  of  unbroken  authority  before  a  court  of  law  was  bound  to  surrender 
its  judgment  to  what  deserved  no  better  name  than  a  technical  quibble. 

(b)  Boyd  V.  McConnell,  10  Humph.  (Tenn.)  68;  Leo  v.  Alexander,  9  B.  Mon. 
(Ky.)  25. 


708  LAW    OF    EVIDENCE.  [PART    III. 

those  words  tvhich  the  law  would  supply  and  those  of  a  different 
character.  If  the  law  wouhl  have  supplied  the  words  which  were 
omitted,  and  were  afterwards  inserted  by  the  party,  it  has  been 
repeatedly  held,  that  even  his  own  insertion  of  them  will  not 
vitiate  the  instrument;  for  the  assent  of  the  obligor  will,  in  such 
cases,  be  presumed.  It  is  not  an  alteration  in  the  sense  of  the 
law,  avoiding  the  instrument;  although,  if  it  be  a  deed, and  to  be 
set  forth  in  hcec  verba,  it  should  be  recited  as  it  was  originally 
written.^ 

§  568.  Same  subject.  It  has  been  strongly  doubted  whether  an 
immaterial  alteration  in  any  matter,  though  made  by  the  obligee 
himself,  will  avoid  the  instrument,  provided  it  be  done  innocently, 
and  to  no  injurious  purpose.^  (a)  But  if  the  alteration  he  fraud- 
ulently made  by  the  party  claiming  under  the  instrument,  it  does 
not  seem  important  whether  it  be  in  a  material  or  an  immaterial 
part ;  for,  in  either  case,  he  has  brought  himself  under  the  opera- 
tion of  the  rule  established  for  the  prevention  of  fraud ;  and,  hav- 
ing fraudulently  destroyed  the  identity  of  the  instrument,  he  must 
take  the  peril  of  all  the  consequences.  ^  But  here,  also,  a  further 
distinction  is  to  be  observed  between  deeds  of  conveyance  and 
covenants ;  and  also  between  covenants  or  agreements  executed 
and  those  which  are  still  executory.  For  if  the  grantee  of  land 
alter  or  destroy  his  title-deed,  yet  his  title  to  the  land  is  not  gone. 
It  passed  to  him  by  the  deed ;  the  deed  has  performed  its  office  as 

8  Hunt  V.  Adams,  6  Mass.  519,  522  ;  Waugh  v.  Bussell,  5  Taunt.  707  ;  Paget  v. 
Paget,  3  Chan.  Rep.  410  ;  Zouch  v.  Clay,  1  Ventr.  185  ;  Smith  i;.  Crooker,  5  Mass. 
538  ;  Hale  v.  Russ,  1  Greenl.  334  ;  Knapp  v.  Maltby,  13  Wend.  587  ;  Brown  v.  Pink- 
ham,  18  Pick.  172. 

1  Hatch  V.  Hatch,  9  Mass.  311,  per  Sewall,  J.  ;  Smith  v.  Dunbar,  8  Pick.  246. 

^  If  an  obligee  procure  a  person,  who  was  not  present  at  the  execution  of  the  bond, 
to  sign  his  name  as  an  attesting  witness,  this  is  prima  facie  evidence  of  fraud,  and 
voids  the  bond.  Adams  v.  Frye,  3  Met.  103.  But  it  is  competent  for  the  obligee  to 
rebut  the  inference  of  fraud,  by  proof  that  the  act  was  done  without  any  frauclulent 
purpose  ;  in  which  case  the  bond  will  not  be  thereby  rendered  void.  Ibid.  And  see 
Homer  v.  Wallis,  11  Mass.  309  ;  Smith  v.  Dunbar,  8  Pick.  246.  But  this  latter  point 
Was  decided  otherwise  in  Marshall  v.  Gougler,  10  S.  &  K.  164.  And  where  the  holder 
of  a  bond  or  a  note  under  seal  procured  a  person  to  alter  the  date,  for  the  purpose  of 
correcting  a  mistake  in  the  year  and  making  it  conform  to  the  truth,  this  was  held 
to  avoid  the  bond.  Miller  v.  Gilleland,  S.  C.  Pa.,  1  Am.  Law  Reg.  672,  Lowrie  and 
Woodward,  JJ.,  dissenting. 

(rt)  Reed   v.    Kemp,    16   111.    445.       A  that   the   alteration  was  immaterial,  and 

promissory  note  was  made  payable  to  a  that  it  did  not  effect  the  validity  of  the 

partnership  under  one  name,  and  was  so  note.     Arnold  v.  Jones,  2  R.  I.  345.     The 

indorsed  by  a  surety.     It  was  afterwards  making  a  note  payable  at  a  particular  place 

altered  by  the  payee  and  maker,  without  is   a   material    alteration.     Burchfield    v. 

the  knowledge  of  the  surety,  so  as  to  be  Moore,  25  Eng.  Law  &  Eq.  123  ;  3  EI.  & 

payable  to  the  same  partnership  by  a  dif-  Bl.  683.     See  also  Warrington  v.  Early,  22 

ierent  name.     In  an  action  on  the  note  by  Id.  208  ;  2  El.  &  Bl.  763. 
the  payee  against  the  surety,  it  was  held, 


CHAP.    VI.]  PRIVATE    WHITINGS.  709 

an  instrument  of  conveyance,  and  its  continued  existence  is  not 
necessary  to  the  continuance  of  title  in  the  grantee  ;  but  the  estate 
remains  in  him  until  it  has  passed  to  another  by  some  mode  of 
conveyance  recognized  by  the  law.^  The  same  principle  ai)plies 
to  contracts  executed  in  regard  to  the  acts  done  under  them.  If 
the  estate  lies  in  grant,  and  cannot  exist  without  deed,  it  is  said 
that  any  alteration  by  the  party  claiming  the  estate  will  avoid  the 
deed  as  to  him,  and  that  therefore  the  estate  itself,  as  well  as  all 
remedy  upon  the  deed,  will  be  utterly  gone."*  But  whether  it 
be  a  deed  conveying  real  estate  or  not,  it  seems  well  settled 
that  any  alteration  in  the  instrument,  made  by  the  grantee 
or  obligee,  if  it  be  made  with  a  fraudulent  design,  and  do  not 
consist  in  the  insertion  of  words  which  the  law  would  sup- 
ply, is  fatal  to  the  instrument,  as  the  foundation  of  any  remedy 
at  law,  upon  the  covenants  or  undertakings  contained  in  it.^ 
And,  in  such  case,  it  seems  that  the  party  will  not  be  per- 
mitted to  prove  the  covenant  or  promise  by  other  evidence.^ 
But  where  there  are  several  parties  to  an  indenture,  some  of 
whom  have  executed  it,  and  in  the  progress  of  the  transaction 
it  is  altered  as  to  those  who  have  not  signed  it,  without  the 
knowledge  of  those  who  have,  but  yet  in  a  part  not  at  all  affect- 
ing the  latter,  and  then  is  executed  by  the  residue,  it  is  good 
as  to  all.^ 

§  568  a.  Alterations  by  consent.  In  all  these  cases  of  altera- 
tions, it  is  further  to  be  remarked,  that  they  are  supposed  to  have 
been  made  without  the  consent  of  the  other  party.  For,  if  the 
alteration  is  made  by  consent  of  parties,  such  as  by  filling  up  of 

8  Hatch  V.  Hatch,  9  Mass.  307  ;  Dr.  Ley  field's  Case,  10  Co.  88  ;  Bolton  v.  Carlisle, 
2  H.  Bl.  259  ;  Davis  v.  Si)ooiier,  3  Pick.  284  ;  Barrett  v.  Thorndike,  1  Greenl.  73  ; 
Lewis  V.  Payii,  8  Cowen,  71  ;  Jackson  v.  Gould,  7  Wend.  364  ;  Beckrovv's  Case.  Hetl. 
138.  Whether  the  deed  may  still  be  read  by  tlie  party,  as  evidence  of  title,  is  not 
agreed.  That  it  niay  be  read,  see  Doe  v.  Hirst,  3  Stark.  60  ;  Lewis  r.  Payn,  8  Cowen, 
71  ;  Jackson  v.  Gould,  7  Wend.  364.  That  it  may  not,  see  Babb  v.  Cleinson,  10  S.  &  R. 
419  ;  Withers  v.  Atkinson,  1  Watts,  236  ;  Chesley  v.  Frost,  1  N.  H.  145  ;  Newell  u. 
Mayherry,  3  Leirrh,  250  ;  Bliss  v.  Mclntyre,  18  Vt.  466. 

*  Moore  v.  Salter,  3  Bulstr.  79,  per  Coke,  C.  J.  ;  Lewis  v.  Payn,  8  Cowen,  71  ; 
supra,  §  265. 

5  Ibid.;  Davidson  v.  Cooper,  11  M.  &  W.  778  ;  Jackson  v.  Gould,  7  Wend.  364  ; 
Hatch  V.  Hatch,  9  Mass.  307  ;  Barrett  v.  Thorndike,  1  Greenl.  73  ;  Withers  v.  Atkin- 
son, 1  Watts,  236;  Arrison  v.  Harmstead,  2  Barr,  191  ;  Whitnier  v.  Frye,  10  Mo.  348  ; 
Mollett  V.  Wackerbarth,  5  C.  B.  181;  Agriculturist  Co.  v.  Fitzgerald,  15  Jur.  489; 
4  Eng.  L.  &  E(i.  211. 

6  Martcndale  v.  FoUett,  1  N.  H.  95  ;  Newell  r.  Mayberry,  3  Leigh,  250  ;  Blade  v. 
Nolaiid,  12  Wend.  173;  Arrison  v.  Harmstead,  2  Barr,  191.  The  strictness  of  the 
English  rule,  that  every  alteration  of  a  bill  of  exchange,  or  promissory  note,  even  by 
consent  of  the  parties,  renders  it  utterly  void,  has  particular  reference  to  the  stamp 
act  of  1  Ann.  stat.  2,  c.  22  ;  Chitty  on  Bills,  pp.  207-214. 

'  Doe  V.  Bingham,  4  B.  &  Aid.  672,  675,  per  Bayley,  J.;  Hibblewhite  v.  McMorine, 
6  M.  &  W.  208,  209. 


710  LAW    OP    EVIDEXCE.  [PART    III. 

blanks,  or  the  like,  it  is  valid.  ^  (a)  But  here,  also,  a  distinction 
has  been  taken  between  the  insertion  of  matter  essential  to  the 
existence  and  operation  of  the  instrument  as  a  deed,  and  that 
which  is  not  essential  to  its  operation.  Accordingly,  it  has  been 
held  that  an  instrument  which,  when  formerly  executed,  was  de- 
ficient in  some  material  part,  so  as  to  be  incapable  of  any  opera- 
tion at  all,  and  was  no  deed,  could  not  afterwards  become  a  deed 
by  being  completed  and  delivered  by  a  stranger,  in  the  absence  of 
the  party  who  executed  it,  and  unauthorized  by  an  instrument 
under  seal.^  Yet  this  rule,  again,  has  its  exceptions,  in  divers 
cases,  such  as  powers  of  attorney  to  transfer  stock, ^  navy  bills,* 
custom-house  bonds, ^  appeal  bonds, ^  bail  bonds, ^  and  the  like, 
which  have  been  held  good,  though  executed  in  blank  and  after- 
wards filled  up  by  parol  authority  only.^ 

1  Maikham  v.  Gonaston,  Cro.  El.  626  ;  Moor,  547  ;  Zouch  v.  Clay,  1  Yeutr.  185  ; 
2  Lev.  3.5.  So,  where  a  j)o\ver  of  attorney  was  sent  to  B,  with  his  Christian  name  in 
hlank,  which  he  tilled  by  inserting  it,  this  was  held  valiil.  Eagleton  v.  Gutteridge,  11 
M.  &  W.  468.  This  consent  may  be  implied.  Hale  v.  Russ,  1  Greenl.  334 ;  Smith  v. 
Crooki-r,  5  Mass.  538  ;  19  Johns.  396,  per  Kent,  C. 

2  Hihblewhite  v.  McMorine,  6  M.  &  \V.  200,  216. 

3  Commercial  Bank  of  Butfalo  v.  Kortwright,  22  Wend.  348. 

4  Per  Wilson,  J.,  in  Masters  v.  Miller,  1  Anstr.  229. 

5  22  Wend.  366. 

6  Ex  parte  Decker,  6  Cowen,  59  ;  Ex  parte  Kerwin,  8  Cowen,  118. 

T  Hale  V.  Russ,  1  Greenl.  334 ;  Gordon  v.  Jetfery,  2  Leigh,  410  ;  Vanhook  v.  Barnett, 
4  Dev.  Law,  272.  But  see  Harrison  v.  Tiernans,  4  Randolph,  177;  Gilbert  v.  Anthony, 
1  Yerger,  69. 

8  In  Texira  v.  Evans,  cited  1  Anstr.  228,  where  one  executed  a  bond  in  blank,  and 
sent  it  into  the  money  market  to  raise  a  loan  upon,  and  it  was  negotiated,  and  filled 
up  by  parol  authority  only,  Lord  Mansfield  held  it  a  good  bond.  This  decision  was 
questioned  by  Mr.  Preston  in  his  edition  of  Shep.  Touchst.  p.  68,  and  it  was  expressly 
overruled  in  Hibblewliite  v.  McMorine,  6  M.  &  W.  215.  It  is  also  contradicted  by 
McKee  v.  Hicks.  2  Dev.  Law,  379,  and  some  other  American  cases.  But  it  was  con- 
firmed in  Wiley  v.  Moor,  17  S.  &  R.  438  ;  Knapp  v.  Maltby,  13  Wend.  587  ;  Commer- 
cial Bank  of  Buffalo  v.  Kortwright,  22  Wend.  348  ;  Boardman  v.  Gore,  1  Stewart 
(Ala.),  517  ;  Duncan  v.  Hodges,  4  McCord,  239  ;  and  in  several  other  cases  the  same 
doctrine  has  been  recognized.  In  the  United  States  v.  Nelson,  2  Brockenbrough,  64, 
74,  75,  which  was  the  case  of  a  paymaster's  bond,  executed  in  blank  and  afterwards 
filled  up.  Chief  Justice  Marshall,  before  whom  it  was  tried,  felt  bound,  by  the  weight 
of  authority,  to  decide  against  the  bond  ;  but  expressed  his  opinion,  that  in  principle 
it  was  valid,  and  his  belief  that  his  judgment  would  be  reversed  in  the  Supreme  Court 
of  the  United  States  ;  but  the  cause  was  not  carrie<l  farther.  Instruments  execiited  in 
this  manner  have  become  very  common,  and  the  autliorities  as  to  their  validity  are 
distressingly  in  conflict,  but  upon  the  principle  adonted  in  Hudson  v.  Revett,  5  Bing. 
368,  there  is  very  little  difficulty  in  holding  such  instruments  valid,  and  thus  giving 
full  effect  to  the  actual  intentions  of  the  parties,  without  the  violation  of  any  rule  of 
law.  In  that  case,  the  defendant  executed  and  delivered  a  deed,  conveying  his  prop- 
erty to  trastees,  to  sell  for  tlie  benefit  of  his  creditors,  the  particulars  of  whose  demands 
were  stated  in  the  deed  ;  but  a  blank  was  left  for  one  of  the  principal  debts,  the  exact 
amount  of  which  was  subsequently  ascertained  and  inserted  in  the  deed,  in  the  gran- 

(ffl)  Plank-Road  Co.  v.  Wetsel,  21  Barb,  of  the  payee,  and  in  the  presence  of  the 

56  ;  Ritcliff  V.  Planters'  Bank,   2  Sneed,  surety,  but  without  his  assent,    the  note 

425 ;  Shelton  v.  Deering,  10  B.  Mon.  405.  was  avoided  as  to  the  surety.     Miller  v. 

Where  the  date  of  a  note  under  seal  was  Gilleland,  19  Pa.  St.  119. 
altered  from  1836  to  1838,  at  the  request 


CHAP.    VI. J  PRIVATE    WHITINGS.  711 

§  569.  Proof  by  subscribing  witnesses.  The  instrument,  being 
thus  produced  and  freed  from  suspicion,  must  be  proved  htj  the 
subscrilnng  wltnessea,  if  there  be  any,  or  at  least  by  one  of  them.  ^ 

tor's  presence,  ami  with  his  assent,  by  the  attorney  who  had  i)re[)are(i  tlie  deed  and  had 
it  in  his  possession,  he  being  one  of  the  trustees.  The  dehnuhuit  aftei-wards  reeoj^nized 
the  deed  as  valid,  in  various  transactions.  It  was  held  that  the  deed  was  not  iiUeii(h'd 
to  be  a  complete  and  perfect  deed,  until  all  the  blanks  were  tilled,  and  that  the  act  of 
the  grantor  in  assenting  to  the  tilling  of  the  blank,  amounted  to  a  delivery  of  the  deed, 
thus  completed.  No  formality,  eitiier  of  words  oi'  action,  is  prescribed  by  the  law  as 
essential  to  delivery.  Nor  is  it  material  how  or  when  the  deed  came  into  the  hands  of 
the  grantee.  Delivery,  in  the  legal  sense,  consists  in  the  transfer  of  the  possession  and 
dominion  ;  and  wjienever  the  grantor  assents  to  the  possession  of  the  deed  by  the 
grantee,  as  an  instrument  of  title,  then,  and  not  until  then,  the  delivery  is  complete. 
The  possession  of  the  instrument  by  the  grantee  nray  be  simultaneous  with  this  act  of 
the  grantor's  mind,  or  it  may  have  been  long  before  ;  but  it  is  this  assent  of  the  grantor 
which  changes  the  character  of  that  prior  possession,  and  imparts  validity  to  the  deed. 
Mr.  Pivston  observes  that  "  all  cases  of  this  sort  depend  on  the  in(iuiry  whether  the 
intended  grantor  has  given  sanction  to  the  instrument,  so  as  to  make  it  conclusively 
his  deed."  3  Preston  on  Abstracts,  p.  64.  And  see  Parker  v.  Hill,  8  Met.  447  ; 
Hope  V.  Harman,  11  Jur.  1097;  post,  vol.  ii.  §  297.  The  same  etiect  was  given  to 
clear  and  nne(iuivoeal  acts  of  assent  en  pais,  by  a  feme  mortgagor,  alter  the  death  of 
her  husband,  as  amounting  to  a  redelivery  of  a  deed  of  mortgage,  executed  by  her  while 

3  fernc  coccrt.  Goodright  v.  Strapham,  Cowp.  201,  204  ;  Shep.  Touchst.  by  Preston, 
p.  58.  "The  general  rule,"  said  Mr.  Justice  Johnson,  in  delivering  the  judgment  of 
the  court,  in  Duncan  v.  Hodges,  "  is,  that  if  a  blank  be  signed,  sealed,  and  delivereii, 
aud  afterwards  written,  it  is  no  deed  ;  and  the  obvious  reason  is,  that  as  there  was 
nothing  of  substance  contained  in  it,  nothing  could  pass  by  it.  But  the  rule  was  never 
intended  to  prescribe  to  the  grantor  the  order  of  time,  in  which  the  several  parts  of  a 
deed  should  be  written.  A  thing  to  be  granted,  a  person  to  whom,  and  the  sealing  and 
delivery,  are  some  of  those  which  are  necessary,  and  the  whole  is  consummated  by  the 
delivery  ;  and  if  the  grantor  should  think  proper  to  reverse  tliis  order,  in  the  nianner 
of  execution,  l)ut  in  the  end  makes  it  perfect  betbre  delivery,  it  is  a  good  deed."     See 

4  McCord,  23:>,  240.  Whenever,  theretbre,  a  deed  is  materially  altered,  by  consent  of 
the  parties,  after  its  formal  execution,  the  grantor  or  obligor  assents  that  the  grantee 
or  obligee  shall  retain  it  in  its  altered  and  cimipleted  form,  as  an  instrument  of  title  ; 
and  this  assent  amounts  to  a  delivery  or  redelivery,  as  the  case  may  re(iuire,  and  war- 
rants the  jury  in  finding  accordingly.  Such  plainly  was  the  opinion  of  the  learned 
judges  in  HulIsou  v.  Revett,  as  stateil  by  iJest,  C.  J.,  in  5  Bing.  388,  389  ;  and  further 
.expounded  in  West  v.  S.evvartI,  14  M.  k  W.  47.  See  also  Hartley  v.  Mmson,  4  M.  & 
G.  172  ;  Story  on  BailmcTits,  §  55. 

1  A  written  instrument,  not  attested  by  a  subscribing  witness,  is  sufficiently  jiroved 
to  authorize  its  introduction,  by  competent  proof  that  the  signature  of  the  person, 
whose  name  is  undersigned,  is  genuine.  The  party  producing  it  is  not  retpiired  to  pro- 
ceed further  npon  a  mere  suggestion  of  a  false  date  when  there  are  no  indications  of 
falsity  found  upon  the  paper,  and  prove,  that  it  was  actually  made  on  the  day  of  the 
date.  After  proof  that  the  signature  is  genuine,  the  law  presumes  that  the  instrument 
in  all  its  parts  is  genuine  also,  when  there  are  no  indications  to  be  found  upon  it  to 
rebut  such  X  presumption.  See  Pullen  v.  Hutchinson,  12  Shepl.  254,  per  Shepley,  J. 
And  to  the  same  effect,  Lefferts  v.  State,  49  N.  J.  L.  27. 

In  regaid  to  instruments  duly  attested,  the  rule  in  the  text  is  applied  where  the  in- 
strument is  the  foundation  of  the  party's  claim,  or  he  is  privy  to  it,  or  where  it  pur- 
ports to  be  executed  by  his  adversary  ;  but  not  where  it  is  wholly  inter  alios,  under 
whom  neither  party  can  claim  or  deduce  any  right,  title,  or  interest  to  himself.  Ayers 
V.  Hevvett,  1  Applet.  286,  per  Whitman,  C.  J. 

In  Missouri,  two  witnesses  are  required  to  prove  the  signature  of  a  deceased  sub- 
scribing witni'ss  to  a  deed.     Rev.  Stat.  1845,  c.  32,  §  22.     See  supra,  %  260,  n. 

In  Virginia,  every  written  instrument  is  presumed  to  be  genuine.'if  the  party  pur- 
porting to  have  signed  it  be  living,  unless  he  will  deny  the  signature,  on  oath.  Rev. 
Stat.  1849,  c.  98,  §  S.l.  So,  in  Illinois.  Linn  v.  Buckingham,  1  Scam.  451.  And  see 
Missouri,  Rev.  Stat.  133."),  p.  463,  §§  18,  19  ;  Texas,  Hartley's  Dig.  §  741  ;  Delaware, 
Rev.  Stat.  1852,  c.  106,  §  5. 


712  LAW    OP    EVIDENCE.  [PART    III. 

Various  reasons  have  been  assigned  for  this  rule ;  but  that  upon 
which  it  seems  best  founded  is,  that  a  fact  may  be  known  to  the 
subscribing  witness  not  within  the  knowledge  or  recollection  of 
the  obligor,  and  that  he  is  entitled  to  avail  himself  of  all  the 
knowledge  of  the  subscribing  witness  relative  to  the  transaction.^ 
The  party,  to  whose  execution  he  is  a  witness,  is  considered  as 
invoking  him,  as  the  person  to  whom  he  refers,  to  prove  what 
passed  at  the  time  of  attestation. ^  The  rule,  though  originally 
framed  in  regard  to  deeds,  is  now  extended  to  every  species  of 
writing  attested  by  a  witness."*  (a)      Such  being  the  principle  of 

In  South  Carolina,  the  signature  to  a  bond  or  note  may  be  proved  by  any  other  per- 
son, witliout  calling  the  subscribing  witness  ;  unless  the  defendant  will  swear  that  it 
is  not  his  signature,  or  that  of  his  testator  or  intestate,  if  the  case  be  such.  Stat,  at 
Large,  vol.  v.  p.  434.  And  foreign  deeds,  bonds,  &c.,  attested  to  have  been  proved  on 
oath  before  a  notary  or  oiher  magistrate  qualiiied  theretor,  are  admissible  in  evidence 
without  proof  by  the  subscribing  witnesses  ;  provided  the  courts  of  the  foreign  State 
receive  sinnlar  evidence  from  this  State.     Id.  vol.  iii.  p.  285  ;  vol.  v.  p.  45. 

In  Virginia,  foreign  deeds  or  powers  of  attorney,  &e.,  duly  acknowledged,  so  as  to 
be  admitted  to  the  record  by  the  laws  of  that  State  ;  also  j)olieies,  charter-parties,  and 
copies  of  record  or  of  registers  of  marriages  and  births,  attested  by  a  notaiy,  to  be 
made,  entei-ed,  or  kept  according  to  the  law  of  the  place,  are  admissible  in  evidence  in 
the  courts  of  that  State,  without  further  proof.  Rev.  Stat.  1849,  c.  121,  §  3  ;  Id.  c. 
176,  §  16.  A  similar  rule,  in  substance,  is  enacted  in  Mississippi.  Hutchinson's  Dig. 
c.  60,  art.  2.     And  see  infra,  §  573,  n. 

2  Per  Le  Blnnc,  J.,  in  Call  v.  Dunning,  4  East,  54  :  Manners  tJ.  Postan,  4  Esp.  240, 
per  Ld.  Alvanley,  C.  J.  ;  3  Preston  on  Abstracts  of  Title,  p.  73. 

3  Cussons  V.  Skinner,  11  M.  &  W.  168  ;  per  Ld.  Abinger  ;  Hollenback  v.  Fleming, 
6  Hill  (N.  Y.),  303. 

*  Doe  V.  Durnford,  2  M.  &  S.  62,  which  was  a  notice  to  (juit.  So,  ol  a  warrant  to 
distrain.  Higgs  v.  Dixon,  2  Stark.  180.  A  receipt.  Heckert  v.  Haine,  6  Binn.  16  ; 
Wishart  v.  Downey,  15  S.  &  K.  77;  McMahan  v.  McGrady,  5  S.  &  K.  314. 

(a)    Barber   r.    Terrell,    54    Ga.    146  ;  attorney  of  the  supposed  lessor  could  not 

Warner  v.  Bait.   &    Ohio    R.  R.  Co.,  31  aHect  the  rights  of  the  defendants,  who 

Ohio  St.   265.     This    rule  is  not  affected  objected    to    it,  by  way  of   admission    or 

by  the  statutes    making  the  parties  to  a  confession,    for  he   nevei-   represented,   or 

suit  competent  witnesses  in  the  suit.     The  was  entrusted  by,  the  defendants  for  any 

execution    of    the    i)aper    must    still    be  purpose.     His  handwriting  was  secondary 

proved  by  the  attesting  witness,  if  there  evidence  only,  and   could   not  be  proved 

is  any.     Whyman  v.  Garth,  8  Exch.  803  ;  until  the  plaintiff  had  proved  that  the  tes- 

Brigham  v.  Palmer,  3  Allen  (Mass.),  450.  timony  of  the  attesting  witness  could  not 

Whether  the  rule  is  alfected  by  a  statute  be    obtained.       The    attorney,    therefore, 

which  declares   that   any  signature   to   a  stood  in  the  same   position  as  any  other 

written    instrument   declared    on    or    set  ]ierson    not    a    subscribing   witness,    who 

forth  as  a  cause  of  action  shall  be  taken  as  might  have  hajipened  to  be  present  at  the 

admitted  unless   its   genuineness    is   spe-  execution    of    the    instrument.     The  evi- 

cially  denied,   is  said  to  be  doubtful    in  deuce  was    incompetent   and    rightly    re- 

Holden  V.  Jenkins,  125  Mass.  446.  jected."     By  Shaw,  C.  J.,  Barry  v.  Ryan, 

Where  the  instrument  which  the  plain-  4  Gray,  523,  525.     Where  one  witness  tes- 

tiff  offered  as  part  of  his  case  was  a  lease  tifies  that  the  other  witness  and  hnnselt 

not  under  seal,  executed  on  the  part  of  the  were  present  and  saw  the  execution  of  a 

lessor  by  an  attornev,  in  the  presence  of  deed,  it  is  not  necessary  to  call  such  other 

an  att(;sting  witness,"  it  was  held,  that  the  witness.     Melcher  v.  Flanders,  40  N.  H. 

testimony  of  the  attorney  was  inadmissi-  139.     Names  of  persons  not  parties  to  the 

ble  to   prove  the  execution  of  the  lease,  deed,   in   the  usual  place  for  subscribing 

without  first  calling  the  attesting  witness,  witnesses,  though  not  said  to  be  witnesses, 

or  accounting  for  Ins  absence.     "  The  per-  will  be  presumed  to_  be  such.     Chaplain  y. 

son    whose    signature    appeared   to   it   as  Briscoe,  19  Miss.  372. 


CHAP.    VI.]  PRIVATE    WRITINGS.  713 

the  rule,  its  application  has  been  held  indispensable,  even  where 
it  was  j)roved  that  the  obligor  had  admitted  that  he  had  executed 
the  bond,^  and  though  the  admission  were  made  in  answer  to  a  bill 
of  discovery.® 

§  569  a.  Who  is  subscribing  witness.  A  suhscribinfj  witness  is 
one  who  was  present  when  the  instrument  was  executed,  and  who, 
at  that  time,  at  the  request  or  with  the  assent  of  the  party,  sub- 
scribed his  name  to  it  as  a  witness  of  the  execution.  If  his  name 
is  signed,  not  by  himself  but  by  the  party,  it  is  no  attestation. 
Neither  is  it  such,  if  though  present  at  the  execution,  he  did  not 
subscribe  the  instrument  at  that  time,  but  did  it  afterwards,  and 
without  request,  or  by  the  fraudulent  procurement  of  the  other 
party.  But  it  is  not  necessary  that  he  should  have  actually  seen 
the  party  sign,  or  have  been  present  at  the  very  moment  of  sign- 
ing; for  if  he  is  called  in  immediately  afterwards,  and  the  party 
acknowledges  his  signature  to  the  witness,  and  requests  him  to 
attest  it,  this  will  be  deemed  part  of  the  transaction,  and  there- 
fore a  sufficient  attestation.'^ 

§  570.  Ancient  instruments  prove  themselves.  To  this  rule,  re- 
quiring the  production  of  the  subscribing  witnesses,  there  are 
several  classes  of  exceptions.  The  first  is,  where  the  instrument  is 
thirty  years  old  ;  in  which  case,  as  we  have  heretofore  seen,^  it  is 

*  Abbot  V.  Plumbe,  1  Doug.  216,  referred  to  by  Lawrence,  J.,  in  7  T.  R.  267,  and 
again  in  2  East.  187  ;  and  confirmed  by  Lord  KUenborough,  as  an  inexorable  rule,  in 
Rex  V.  Harringworth,  4  M.  &  S.  353.  Tlie  admission  of  the  party  may  be  given  in 
evi<lenee  ;  but  the  witness  must  also  be  produced,  if  to  be  had.  This  rule  was  broken 
in  upon,  in  the  case  of  the  admitted  execution  of  a  promissory  note,  in  Hall  v.  Phelps, 
2  Johns.  451  ;  but  the  rule  was  afterwards  recognized  as  binding  in  the  case  of  a  deed, 
in  Fox  V.  Reil,  3  Johns.  477,  and  confirmed  in  Henry  v.  Bishop,  2  Wend.  575. 

**  Call  V.  Dunning,  4  East,  53.  But  see  Bowles  v.  Langworthy,  5  T.  R.  366.  So, 
in  order  to  prove  the  admission  of  a  debt,  by  the  medium  of  an  entry  in  a  schedule 
filed  by  the  defendant  in  the  Insolvent  Debtors'  Court,  it  was  held  necessary  to  prove 
his  signature  by  the  attesting  witness,  although  the  document  had  been  acted  upon  by 
that  court.  Streeter  v.  Bartlett,  5  M.  (i.  &  Sc.  562.  lu  Maryland,  the  rule  in  the 
text  is  abrogated  by  the  statute  of  1825,  e.  120. 

Hollenback  v.  Fleming,  6  Hill  (N.  Y.),  303  ;  Cussons  a;.  Skinner,  11  M.  &  W. 
168;  Ledgard  v.  Thompson,  Id.  41,  per  Parke,  B.  "Si  [testes]  in  confectioiie  chartae 
pri3esentes  non  fuerint,  sufficit  si  postmodum,  in  praesentiadonatoris  et  donatorii  fuerint 
recitata  et  concessa."  Bracton,  b.  2,  c.  16,  §  12,  fol.  38,  a  ;  Fleta,  1.  3,  c.  14,  §  13, 
p.  200.  And  see  Biackett  ?;.  Mountfort,  2  Fairf.  115.  See  further,  on  signature  and 
attestation,  post,  vol.  ii.  tit.  Wills,  §§  674,  676,  678. 

1  Supra,  §  21,  and  cases  there  cited.  See  also  Doe  v.  Davis,  10  Q.  B.  314  ;  Crane 
V.  Marshall,  4  Sliepl.  27;  Green  v.  Chelsea,  24  Pick.  71.  From  the  dictum  of  Parker, 
C.  J.,  in  Illmerson  i'.  Tolman,  4  Pick.  162,  it  has  been  inferred  that  the  subscribing 
witnesses  must  be  produced,  if  living,  though  the  deed  be  more  than  thirtj'  j'ears  old. 
But  the  case  of  Jackson  o.  Blanshan,  3  Johns.  292,  which  is  there  referred  to,  contains 
no  such  doctrine.  The  question  in  the  latter  case,  which  was  the  case  of  a  will,  was, 
whether  the  thirty  years  should  be  computed  from  the  date  of  the  will,  or  from  the 
time  of  the  testator's  death  ;  and  the  court  held,  that  it  should  be  computed  from  the 
time  of  his  death.  But  on  this  point  Spencer,  J.,  differed  from  the  rest  of  the  court  ; 
and  his  opinion,  which  seems  more  consistent  with  the  ]irinc'iple  of  the  rule,  is  fully 
sustained  by  Doe  v.  Deakin,  3  C.  &  P.  402  ;  Doe  v.  Wollej-,  8  B.  &•  C.  22 ;  McKenire 


714  LAW   OF    EVIDENCE.  [PAKT   III. 

said  to  prove  itself,  the  subscribing  witnesses  being  presumed  to 
be  dead,  and  other  proof  being  presumed  to  be  beyond  the  reach 
of  the  party.  But  such  documents  must  be  free  from  just  grounds 
of  suspicion,  and  must  come  from  the  proper  custody,  ^  or  have 
been  acted  upon,  so  as  to  afford  some  corroborative  proof  of  their 
genuineness. -"^  (a)  And,  in  this  case,  it  is  not  necessary  to  call 
the  subscribing  witnesses,  though  they  be  living.^  This  excep- 
tion, is  co-extensive  with  the  rule  applying  to  ancient  writings  of 
every  description,  provided  they  have  been  brought  from  the 
proper  custody  and  place ;  for  the  finding  them  in  such  a  custody 
and  place  is  a  presumption  that  they  were  honestly  and  fairly 
obtained  and  preserved  for  use,  and  are  free  from  suspicion  of 
dishonesty.^  But  whether  it  extends  to  the  seal  of  a  private  cor- 
poration has  been  doubted,  for  such  a  case  does  not  seem  clearly 
to  be  within  the  principle  of  the  exception.^ 

§  571.  Witness  not  required  when  the  instrument  is  produced  by 
adverse  party.  A  second  exception  to  this  rule  is  allowed  where 
the  instrument  is  produced  by  the  adverse  party,  pursuant  to  no- 
tice, the  party  producing  it  claiming  an  interest  under  the  instru- 
ment. In  this  case,  the  party  producing  the  instrument  is  not 
permitted  to  call  on  the  other  for  proof  of  its  execution;  for,  by 
claiming  an  interest  under  the  instrument,  he  has  admitted  its 
execution.  1  The  same  principle  is  applied  where  both  parties 
claim  similar  interests  under  the  same  deed ;  in  which  case,  the 

V.  Fi-aser,  9  Ves.  h  ;  Goiigh  v.  Gough,  4  T.  R.  707,  n.  See  Adams  on  Eject,  p.  260. 
And  it  was  acconliugly  so  decided  in  Man  v.  Ricketts,  7  Beavan,  93. 

2  Supra,  §  142.     And  see  Slater  v.  Hodgson,  9  Q.  B.  727. 

3  See  siiprd,  §§  21,  142,  and  cases  there  cited  ;  Doe  d.  Edgett  v.  Stiles,  1  Kerr 
(New  Br. ),  338.  Mr.  Evans  thinks  that  the  antiquity  of  the  deed  is  alone  sufficient  to 
entitle  it  to  be  read  ;  and  that  the  other  circumstances  only  go  to  its  effect  in  evidence. 

2  Poth.  Obi.  App.  xvi.  §  5,  p.  149.  See  also  Doe  v.  Burdett,  4  Ad.  &  El.  1,  19  ; 
Brett  V.  Beales,  1  M.  &  Malk.  416,  418  ;  Jackson  v.  Laroway,  3  Johns.  Gas.  283.  In 
some  cases  proof  of  possession,  under  the  deed,  or  will,  seems  to  have  been  deemed  in- 
dis]iensable  ;  but  the  principle  pervading  them  all  is  that  of  corroboration  merely  ; 
that  is,  that  some  evidence  shall  be  offered,  auxiliary  to  the  apparent  antiiiuity  of  the 
instrument,  to  raise  a  sufficient  presumption  in  its  favor.     As  to  this  point,  see  supra, 

§  144,  n. 

*  Marsh  v.  Colnett,  2  Esp.  665;  Doe  v.  Burdett,  4  Ad.  &  El.  1,  19  ;  Doe  v.  Deakin, 

3  C.  &  P.  402  ;  Jackson  v.  Christman,  4  Wend.  277,  282,  283  ;  Doe  v.  Wolley,  8  B.  & 
C.  22  ;  Fetherly  v.  Waggoner,  11  Wend.  603  ;  supra,  §  142. 

&  12  Vin.  Abr.  tit.  Evidence,  A,  b,  5.  pi.  7,  cited  by  Ld.  EUenborough,  in  Roe__  i'. 
Rawlin<7s,  7  East,  291;  Gov.,  &c.  of  Chelsea  Waterworks  i-.  Cowper,  1  Esp.  275; 
Forhes  u.  Wale,  1  W.  Bl.  532  ;  Wynne  v.  Tyrwhitt,  4  B.  &  Aid.  376. 

6  Rex  V.  Bathwick,  2  B.  &  Ad.  639,  648. 

1  Pearce  v.  Hooper,  3  Taunt.  60  ;  Carr  v.  Burdiss,  1  C.  M.  &  R.  784,  785  ;  Orr 
r.  Morice,  3  Br.  &  Bing.  139  ;  Bradshaw  v.  Bennett,  1  M.  &  Rob.  143.  In  assumpsit 
by  a  servant  against  his  master,  for  breach  of  a  written  contract  of  service,  the  agree- 
ment bein<^  produced  under  notice,  proof  of  it  by  the  attesting  witness  was  held  un- 
necessary. °  Bell  V.  Chaytor,  1  Gar.  &  Kirw.  162  ;  5  C.  &  P.  48. 

(a)  Goodwin  v.  Jack,  62  Me.  414  ;  Johnson  v.  Shaw,  41  Tex.  428. 


CHAP.    VI.]  PRIVATE    WRITINGS.  715 

fact  of  such  claim  may  be  shown  by  parol.  ^  So,  where  both  par- 
ties claim  under  the  same  ancestor,  his  title-deed,  being  equally 
presumable  to  be  in  the  possession  of  either,  may  be  proved  Ijy  a 
copy  from  the  registry."^  But  it  seems  that  the  interest  claimed  in 
these  cases  must  be  of  an  ah'idmtj  nature.  Therefore,  where  the 
defendant  would  show  that  he  was  a  partner  with  the  plaintiff, 
and,  in  proof  thereof,  called  on  the  plaintiff  to  produce  a  written 
personal  contract,  made  between  them  both,  as  partners  of  the 
one  part,  and  a  third  person  of  the  .other  part,  for  labor  which  had 
been  performed,  which  was  produced  accordingly,  the  defendant 
was  still  held  bound  to  prove  its  execution.^  The  interest,  also, 
which  is  claimed  under  the  instrument  produced  on  notice,  must, 
in  order  to  dispense  with  this  rule,  be  an  interest  claimed  in  the 
same  cause.  Therefore,  where,  in  an  action  by  an  agent  against 
his  principal  for  his  commission  due  for  procuring  him  an  appren- 
tice, the  indenture  of  apprenticeship  was  produced  by  the  defen- 
dant on  notice,  it  was  held  that  the  plaintiff  was  still  bound  to 
prove  its  execution  by  the  subscribing  witness ;  and  that,  having 
been  nonsuited  for  want  of  this  evidence,  he  was  not  entitled  to 
a  new  trial  on  the  ground  of  surprise,  though  he  was  not  pre- 
viously aware  that  there  was  a  subscribing  witness,  it  not  appear- 
ing that  he  had  made  any  inquiry  on  the  subject.^  So,  where  the 
instrument  was  taken  by  the  party  producing  it,  in  the  course  of 
his  official  duty,  as,  for  example,  a  bail  bond,  taken  ])y  the  sheriff, 
and  produced  by  him  on  notice,  its  due  execution  will  prima  facie 
be  presumed.^     Subject  to  these  exceptions,  the  general  rule  is, 

2  Doe  V.  Wilkins,  4  Ad.  &  El.  86  ;  s.  c.  5  Nev.  &  M.  434  ;  Kuiglit  v.  Martin,  1 
Gow,  26. 

3  Biirghardt  v.  Turner,  12  Pick.  534.  It  being  the  general  practice,  in  the  United 
States,  for  the  grantor  to  retain  his  own  title-deeds,  instead  of  delivering  them  over 
to  the  grantee,  the  grantee  is  not  held  bound  to  produce  them  ;  but  the  person  mak- 
ing title  to  lands  is,  in  general,  [lermitted  to  read  certified  copies,  from  the  registry,  of 
all  deeds  and  instruments  under  which  he  claims,  and  to  which  he  is  not  himself  a 
party,  and  of  which  he  is  not  supposed  to  have  the  control.  Scanlan  w.  Wright,  13 
Pick.  523  ;  Woodman  v.  Coolbroth,  7  Greenl.  181  ;  Loomis  v.  Bedel,  UN.  H.  74. 
And  where  a  copy  is,  on  this  ground,  admissible,  it  has  been  held  tliat  the  original 
might  be  read  in  evidence,  without  proof  of  its  formal  execution.  Knox  i-.  Silloway, 
1  Fairf.  201.  This  practice,  however,  has  been  restricted  to  instruments  which  are  by 
law  I'equired  to  be  registered,  and  to  transmissions  of  title  inter  vivos ;  for  if  the  party 
claims  by  descent  from  a  grantee,  it  has  been  held  that  he  must  produce  the  deed  to  his 
ancestor,  in  the  same  manner  as  the  ancestor  himself  would  be  obliged  to  do.  Kelsey 
V.  Hanmer,  18  Conn.  311.  Where  proof  of  title  had  been  made  by  a  copy  from  the 
registry  of  an  officer's  levy  of  an  execution,  and  the  adverse  party  thereupon  produced 
the  original  return,  in  which  were  material  alterations,  it  was  held  that  this  did  not 
afTect  the  admissibility  of  the  copy  in  evidence,  and  that  the  burden  of  explaining  and 
accounting  for  the  alterations  in  the  original  did  not  rest  on  the  party  producing  the 
copy.     Wilbur  v.  Wilbur,  13  Met.  405.     Ante,  §  561,  and  notes. 

*  Collins  V.  Bayntum,  1  Q.  B.  117. 
6  Rearden  v.  Minter,  5  M.  &  Gr.  204. 
«  Scott  V.  Waithman,  3  Stark.  168. 


716  LAW    OP   EVIDENCE.  [PART   III. 

that  where  the  party  producing  an  instrument  on  notice  is  not  a 
party  to  it,  and  claims  no  beneficial  interest  under  it,  the  party 
calling  for  its  production  and  offering  it  in  evidence  must  prove 
its  execution.'' 

8  572.  When  witness  cannot  be  found,  or  is  incapable.  A  third 
class  of  exceptions  to  this  rule  arises  from  the  circumstances  of 
the  witnesses  themselves,  the  party,  either  from  i?hysical  or  legal 
obstacles,  being  unable  to  adduce  them.  Thus,  if  the  witness  is 
proved  or  presumed  to  be  dead ;  ^  (a)  or  cannot  be  found  after  dili- 
gent inquiry; 2  or,  is  resident  beyond  the  sea;^  or,  is  out  of  the 
jurisdiction  of  the  court;* (6)  or,  is  a  fictitious  person,  whose 
name  has  been  placed  upon  the  deed  by  the  party  who  made  it ;  ^ 
or,  if  the  instrument  is  lost,  and  the  name  of  the  subscribing  wit- 
ness is  unknown;^  or,  if  the  witness  is  insane;"  or,  has  subse- 
quently become  infamous;^  or,  has  become- the  adverse  party ;^ 
or,  has  been  made  executor  or  administrator  to  one  of  the  parties, 
or  has  otherwise,  and  without  the  agency  of  the  party,  subse- 
quently become  interested,  or  otherwise  incapacitated ;  ^^  or  was 

T  Betts  V.  Badger,  12  Johns.  223  ;  Jackson  v.  Kingsley,  17  Johns.  158. 

1  Anou..  12  Mod.  607  ;  Barnes  v.  Trompowsky,  7  t.  R.  265  ;  Adams  v.  Kerr,  1  B, 
&  P.  360  ;  Banks  v.  Farquharson,  1  Dick.  167  ;  JMott  v.  Doughty,  1  Johns.  Cas.  230  ; 
Dudley  v.  Sumner,  5  Mass.  463.  That  the  witness  is  sick,  even  though  despaired  of, 
is  not  sufficient.     Harrison  v.  Blades,  3  Campb.  457.     See  also  supra,  §  272,  n. 

2  Coghlan  v.  Williamson,  1  Doug.  93  ;  Cunliffe  v.  Sefton,  2  East,  183  ;  Call  v. 
Dunning,  5  Esp.  16  ;  4  East,  53  ;  Crosby  v.  Piercy,  1  Taunt.  364  ;  Jones  v.  Brink- 
ley,  1  Hayw.  20  ;  Anon.,  12  Mod.  607  ;  Wardell  v.  Fermor,  2  Campb.  282  ;  Jackson  v. 
Burton,  11  Johns.  64  ;  Mills  v.  Twist,  8  Johns.  121  ;  Parker  v.  Haskins,  2  Taunt. 
223  ;  Whittemore  i-.  Brooks,  1  Greenl.  57  ;  Burt  v.  Walker,  4  B.  &  Aid.  697 ;  Pytt  v. 
Griffith,  6  Moore,  538  ;  Austin  v.  Rumsey,  2  C.  &  K.  736. 

3  Anon.,  12  Mod.  607  ;  Barnes  v.  Trompowsky,  7  T.  R.  266. 

*  Holmes  v.  Pontin,  Peake's  Cas.  99  ;  Banks  v.  Farquharson,  1  Dick.  168  ;  Cooper 
V.  Marsden,  1  Esp.  1  ;  Prince  v.  Blackburn,  2  East,  250 ;  Sluby  v.  Champlin,  4  Johns. 
461;  Dudley  v.  Sumner,  4  Mass.  444;  Homer  v.  Wallis,  11  Mass.  309;  Cooke  v. 
Woodrow,  5  Cranch,  13  ;  Baker  v.  Blunt,  2  Hayw.  404  ;  Hodnett  v.  Forman,  1  Stark. 
90  ;  Glubb  V.  Edwards,  2  M.  &  Rob.  300  ;  Engles  v.  Bruington,  4  Yeates,  345 ;  Wiley 
V.  Bean,  1  Gilman,  302  ;  Dunbar  v.  Marden,  13  N.  H.  311.  If  the  witness  has  set 
out  to  leave  the  jurisdiction  by  sea,  but  the  ship  has  been  beaten  back,  he  is  still  consid- 
ered absent.     W^ard  i;.  Wells,  1  Taunt.  461.     See  also  Emery  v.  Twombly,  5  Shepl.  65. 

5  Fassett  V.  Brown,  Peake's  Cas.  23.     '^  Keeling  v.  Ball,  Peake's  Ev.  App.  78. 

'  Currie  v.  Child,  3  Campb.  283.     See  also  3  T.  R.  712,  per  Buller,  J. 

^  Jones  V.  Mason,  2  Stra.  833.  If  the  conviction  were  previous  to  the  attestation, 
it  is  as  if  not  attested  at  all.     1  Stark.  Evid.  325. 

9  Strange  v.  Dashwood,  1  Cooper's  Ch.  Cas.  497. 

1"  Goss  V.  Tracy,  1  P.  Wms.  289  ;  Godfreys.  Norris,  1  Stra.  34  ;  Davison  v.  Bloomer, 
1  Dall.  123  ;  Bulkley  v.  Smith,  2  Esp.  697  ;  Cunliffe  v.  Sefton,  2  East,  183  ;  Bernett 
i;.  Taylor,  9  Ves.   381 ;  Hamilton  v.  Marsden,  6  Binn.   45  ;  Hamilton  v.    Williams,  1 

(a)  If  a  subscribing  witness  to  an  in-  of  the  mark   may  be  proved  by  persons 

strument  merely  makes  his  mark,  instead  who    have   seen   it    made   on  other  occa- 

of  writing  his  name,  the  instrument  is  to  sions.     George  r.  Surrey,  1  M.  &  M.  516. 

be  proved  by  evidence  of  the  handwriting  (b)  Teall  v.  Van  Wyck,  10  Barb.  (N.  Y.) 

of    the    party   executing    it.       Watts    r.  376  ;  Foote  v.  Cobb,  18  Ala.  585  ;  Cox  v. 

Kilburn,  7  Ga.  356.      But  the  genuineness  Davis,  17  Id.  714. 


CHAP.    VI.]  PRIVATE   WRITINGS.  717 

incapacitated  at  the  time  of  signing,  but  the  fact  was  not  known 
to  the  party  ;^^  in  all  these  cases,  the  execution  of  the  instrument 
may  be  proved  by  other  evidence.  If  the  adverse  party,  pending 
the  cause,  solemnly  agrees  to  admit  the  execution,  other  proof  is 
not  necessary.  ^^  And  if  the  witness,  being  called,  denies,  or  does 
not  recollect,  having  seen  it  executed,  it  may  be  estal)lished  by 
other  evidence. ^^  If  the  witness  has  become  blind,  it  has  been 
held  that  this  did  not  excuse  the  party  from  calling  him;  for  he 
may  be  able  still  to  testify  to  other  parts  of  the  res  gestce  at  the 
time  of  signing.^*  If  the  witness  was  infamous  at  the  time  of  at- 
testation, or  was  interested,  and  continues  so,  the"  party  not  then 
knowing  the  fact,  the  attestation  is  treated  as  a  nullity.  ^^ 

§  578.  Office  bonds.  K  fourth  exception  has  been  sometimes 
admitted,  in  regard  to  office  bonds,  required  by  law  to  be  taken  in 
the  name  of  some  public  functionary,  in  trust  for  the  benefit  of 
all  persons  concerned,  and  to  be  preserved  in  the  public  registry 
for  their  protection  and  use;  of  the  due  execution  of  which,  as 
well  as  of  their  sufficiency,  such  officer  must  first  be  satisfied  and 
the  bond  approved,  before  the  party  is  qualified  to  enter  upon  the 
duties  of  his  office.  Such,  for  example,  are  the  bonds  given  for 
their  official  fidelity  and  good  conduct,  by  guardiayis,  executors, 
and  administrators,  to  the  judge  of  probate.  Such  documents,  it 
is  said,  have  a  high  character  of  authenticity,  and  need  not  be 
verified  by  the  ordinary  tests  of  truth,  applied  to  merely  private 

Hayw.  139  ;  Hovill  v.  Stephenson,  5  Bing.  493,  per  Best,  C.  J.  ;  Saunders  v.  Ferrill, 
1  Iredell,  97.     And  see,  as  to  the  manner  of  acquiring  the  interest,  supra,  §  418. 

11  Nelius  V.  Brickel!,  1  Hayw.  19.  In  this  ease,  tlie  witness  was  the  wife  of  the 
obligor.  And  see  Amherst  Bank  v.  Root,  2  Met.  522,  that  if  the  subscribing  witness 
was  interested  at  the  time  of  attestation,  and  is  dead  at  the  time  of  trial,  his  hand- 
writing may  not  be  proved.  For  such  evidence  would  be  merely  secondary,  and  there- 
fore admissible  only  in  cases  where  the  primar}'  evidence  could  have  been  admitted. 

12  Laing  v.  Kaine,  2  B.  &  P.  85. 

13  Abbott  V.  Plumlie,  1  Doug.  216  ;  Lesher  v.  Levan,  2  Dall.  96  ;  Ley  v.  Ballard,  3 
Esp.  173,  n.  ;  Powell  v.  Blackett,  1  Esp.  97  ;  Park  v.  Mears,  3  Esp.  171  ;  Fitzgerald 
V.  Elsee,  2  Campb.  635  ;  Blurton  v.  Toon,  Skin.  639  ;  McCraw  v.  Gentry,  3  Canipb. 
232;  Grellier  v.  Xeale,  Peake's  Cas.  198;  Whitaker  v.  Salisbury,  15  Pick.  534; 
Quimby  v.  Buzzell,  4  Shepl.  470  ;  supra,  §  272.  Where  one  of  the  attesting  witnesses 
to  a  will  has  no  recollection  of  having  subscribed  it,  but  testifies  that  the  signature  of 
liis  name  thereto  is  genuine  ;  the  testimony  of  another  attesting  witness,  that  the  first 
did  subscril)e  his  name  in  the  testator's  presence,  is  sufficient  evidence  of  that  fact. 
Dewey  v.  Dewey,  1  Met.  349.  See  also  Quimby  v.  Buzzell,  4  Sliepl.  470  ;  New  Haven 
Co.  Bank  v.  Mitchell,  15  Conn.  206.  If  the  witness  to  a  deed  recollects  seeing  the 
signature  only,  but  the  attesting  clause  is  in  the  usual  formula,  the  jury  will  be  ad- 
vised, in  the  absence  of  controlling  circumstances,  to  find  the  sealing  and  delivery  also. 
Burling  v.  Paterson,  9  C.  &  P.  570.     See  supra,  §  38  a. 

1*  Cronk  v.  Frith,  9  C.  &  P.  197  ;  s.  c.  2  M.  &  Rob.  262,  per  Ld.  Abinger,  C.  B.  ; 
Rees  V.  Williams,  1  Dc  Gex  &  Smale,  314.  In  a  former  case  of  Pedler  v.  Paige,  1  M. 
&  Rob.  258,  Parke,  J.,  expressed  himself  of  the  same  opinion,  but  felt  bound  by  the 
opposite  ruling  of  Ld.  Holt,  in  Wood  v.  Dniry,  1  Ld.  Raym.  734. 

16  Swire  v.  Bell,  5  T.  R.  371  ;  Honeywood  v.  Peacock,  3  Campb.  196  ;  Amherst  Bank 
V.  Root,  2  Met.  522. 


718  LAW   OP   EVIDENCE.  [PART   III. 

instruments,  namely,  the  testimony  of  the  subscribing  witnesses ; 
but  when  they  are  taken  from  the  proper  public  repository,  it  is 
only  necessary  to  prove  the  identity  of  the  obligor  with  the  party 
in  the  action.  ^  Whether  this  exception,  recently  asserted,  will 
be  generally  admitted,  remains  to  be  seen. 

§  573  a.  Proof  of  instrument  by  hand^writing  of  the  signer.  A 
further  exception  to  the  rule  requiring  proof  of  handwriting  has 
been  admitted,  in  the  case  of  letters  received  in  reply  to  others 
proved  to  have  been  sent  to  the  party.  Thus,  where  the  plaintiff's 
attorney  wrote  a  letter  addressed  to  the  defendant  at  his  residence, 
and  sent  it  by  the  post,  to  which  he  received  a  reply  purporting 
to  be  from  the  defendant ;  it  was  held,  that  the  letter  thus  re- 
ceived was  admissible  in  evidence,  without  proof  of  the  defend- 
ant's handwriting,  and  that  letters  of  an  earlier  date  in  the  same 
handwriting  might  also  be  read,  without  other  proof. ^ 

§  573  h.  "When  the  instrument  is  not  directly  in  issue.  A  iifth 
exception  to  the  rule  requiring  proof  by  the  subscribing  witness 
is  admitted,  where  the  instrument  is  not  directly  in  issue,  but 
comes  incidentally  in  question  in  the  course  of  the  trial ;  in  which 
case,  its  execution  may  be  proved  by  any  competent  testimony, 
without  calling  the  subscribing  witness. ^  (a) 

1  Kello  V.  Maget,  1  Dev.  k  Bat.  414.  The  case  of  deeds  enrolled  would  require  a 
distinct  consideration  in  tliis  place,  were  not  the  jiractice  so  various  in  the  diH'erent 
States,  as  to  reduce  the  subject  to  a  mere  question  of  local  law,  not  falling  within  the 
])lan  of  this  work.  In  genera],  it  maybe  remarked,  that,  in  all  the  United  States, 
provision  is  made  for  the  registration  and  enrolment  of  deeds  of  coiiveyance  of  lands; 
and  thf.t,  prior  to  such  registration,  the  deed  must  be  acknowledged  bj'  the  grantor, 
before  the  designated  magistrate  ;  and,  in  case  of  the  death  or  refusal  of  the  grantor, 
and  in  some  other  enumerated  cases,  the  deed  must  be  proved  by  witnesses,  either  before 
a  magistrate,  or  in  a  court  of  record.  But,  generally  speaking,  such  acknowledgment 
is  merely  designed  to  entitle  the  deed  to  registration,  and  registration  is,  in  most  States, 
not  essential  to  passing  the  estate,  but  is  only  intended  to  give  notoriety  to  the  convey- 
ance, as  a  substitute  for  livery  of  seisin.  And  such  acknowledgment  is  not  generally 
received,  as  prima  facie  evidence  of  the  execution  of  the  deed,  unless  by  force  of  some 
statute,  or  immemorial  usage,  rendering  it  so  ;  but  the  grantor,  or  ]>arty  to  be  affected 
by  the  instrument,  may  still  controvert  its  genuineness  and  validity.  But  where  the 
deed  falls  under  one  of  the  exceptions,  and  has  been  proved  prr  tesfcfi,  there  seems  to 
be  good  reason  for  receiving  this  prolmte,  duly  authenticated,  as  sufficient  prima  facie 
proof  of  the  execution  ;  and  such  is  understood  to  be  the  course  of  |)ractice,  as  settled  by 
the  statutes  of  many  of  the  TTnited  States.  See  4  Cruise's  Dig.  tit.  32,  c.  29,  §  1,  note, 
and  c.  2,  §§  77,  80,  notes  (Greenleaf's  ed. )  ;  2  Lomax's  Dig.  353  ;  Doe  v.  Johnson,  2 
Scam.  522  ;  Morris  v.  Wadsworth,  17  Wend.  103;  Thurman  v.  Cameron,  24  Wend.  87. 
The  English  doctrine  is  found  in  2  Phil.  Evid.  243-247  ;  1  Stark.  Evid.  355-358. 
And  see  Mr.  Metcalfs  note  to  1  Stark.  Evid.  357  ;  Brotherton  v.  Livingston,  3  Watts 
&  Serg.  334;  Vance  v.  Schuyler,  1  Gilm.  (111.)  160.  Where  a  deed  executed  by  an 
officpr  acting  under  authority  of  law  is  offered  in  evidence,  not  in  proof  of  title,  but  in 
proof  of  a  collateral  fact,  the  authority  of  the  officer  needs  not  to  be  shown.  Bolles  v. 
Beach,  3  Am.  Law  Journ.  N.  s.  122.  See  Rev.  Stat.  Wisconsin,  p.  525;  Rev.  Stat. 
Illinois,  p.  108. 

2  Ovenston  v.  Wilson,  2  Car.  &  Kir.  1.  3  Curtis  v.  Belknap,  6  W^ashb.  433. 

(a.)  On  the  trial  of  an  indictment  for  yiretences,  the  deed  may  be  proved  by  the 
obtaining  tiie  signature  to  a  deed  by  false     testimony  of  the  grantor,  without  calling 


CHAP.    VI.]  PRIVATE   WRITINGS.  719 

§  574.  Search  for  subscribing  witness.  The  degree  of  diligence 
in  the  search  lor  the  subscribing  witnesses  is  the  same  which  is 
required  in  the  search  for  a  hjst  paper,  the  principle  being  the 
same  in  l)oth  cases.*  It  must  be  a  strict,  diligent,  and  honest  in- 
quiry and  searcli,  satisfactory  to  the  court,  under  the  circumstances 
of  the  case.  It  should  be  made  at  the  residence  of  the  witness, 
if  known,  and  at  all  other  places  where  he  may  be  expected  to 
be  found;  and  inquiry  should  be  made  of  his  relatives,  and  others 
who  may  be  supposed  to  be  able  to  afford  information.  And  the  an- 
swers given  to  such  inquiries  may  be  given  in  evidence,  they  being 
not  hearsay,  but  parts  of  the  res  gestcs.^  If  there  is  more  than 
one  attesting  witness,  the  absence  of  them  all  must  be  satisfactorily 
accounted  for,  in  order  to  let  in  the  secondary  evidence.^ 

§  575.  Proof  of  signature  of  cue  witness  sufficient.  When  sec- 
ondary evidence  of  the  execution  of  the  instrument  is  thus  ren- 
dered admissible,  it  will  not  be  necessary  to  prove  the  handivriting 
of  more  than  one  witness.^  And  this  evidence  is,  in  general, 
deemed  sufficient  to  admit  the  instrument  to  be  read,2(a)  being 
accompanied  with  proof  of  the  identity  of  the  party  sued  with  the 
person  who  appears  to  have  executed  the  instrument ;  which  proof, 
it  seems,  is  now  deemed  requisite,  ^  especially  where  the  deed  on 

*  Supra,  §  558. 

^  The  cases  on  this  subject  are  numerous  ;  but  as  the  application  of  the  rule  is  a 
matter  in  the  discretion  of  the  jud^ire,  under  the  particular  circumstances  of  each  case,  it 
is  thought  unnecessary  to  encumber  the  work  with  a  particular  reference  to  them. 

6  Cunlitfe  v.  Sjfton,  2  East,  183  ;  Kelsey  v.  Hanmer,  18  Conn.  311  ;  Doe  v.  Hathe- 
waj',  2  Allen,  N.  B.  69. 

1  Adams  V.  Kerr,  1  B.  &  P.  360  ;  3  Preston  on  Abstracts  of  Title,  f)p.  72,  73. 

2  Kay  V.  Rrookman,  3  0.  &  P.  555  ;  Webb  v.  St.  Lawrence,  3  Bro.  P.  C.  640  ;  Mott 
V.  Douffhty,  IJohns.  Cas.  230  ;  Slubyv.  Champlin,  4  Johns.  461  ;  Adams  v.  Kerr,  1  B. 
&  P.  360  ;  Cunliffe  v.  Sefton,  2  fiast,  183  ;  Prince  v.  Blackburn,  2  Kast,  250  ;  Doug- 
las V.  Sanderson,  2  Dall.  116  ;  Cooke  v.  Woodrow,  5  Cranch,  13  ;  Hamilton  r.  Mars- 
den,  6  Binn.  45  ;  Powers  v.  McFerran,  2  S.  &  R.  44  ;  McKimler  v.  Littlejohn,  1  Iredell, 
66.  Some  courts  have  also  required  proof  of  the  handwriting  of  the  obligor,  in  addi- 
tion to  that  of  the  subscribing  witness  ;  but  on  this  point  the  |)ractice  is  not  uniform. 
Clark  V.  Courtney,  5  Peters,  319  ;  Hopkins  v.  De  Gratfenreid,  2  Bay,  187  ;  Olijihant  v. 
Taggart,  1  Bay,  255  ;  Irving  v.  Irving,  2  Hayw.  27  ;  Clark  v.  Snunderson,  3  Binn.  192; 
Jackson  v.  La  Grange,  19  Johns.  386  ;  Jack.son  v.  Waldron,  13  Wend.  178,  183,  197, 
198,  s&mble.  See  also  Gough  v.  Cecil,  1  Selw.  N.  P.  533,  n.  (7).  (lOth  ed.).  See  sit- 
pra,  §  84,  n.  ;  Thomas  v.  Turnley,  3  Rob.  (La.)  206 ;  Dunbar  v.  Marden,  13  N.  H.  311. 

3  Whitelock  v.  Musgrove,  1  C.  &  M.  511.  But  it  seems  tlint  sliglit  evidence  of  iden- 
tity will  suffice.  See  Nelson  v.  Whittall,  1  B.  &  Al.l.  19  ;  Warren  v.  Anderson,  8 
Scott,  334.  See  also  1  Selw.  N.  P.  538,  n.  (7).  (18th  ed.)  ;  Phil,  and  Am.  on  Kvid. 
661,  n.  (4).  This  subject  has  recently  been  reviewed  in  the  cases  of  Sewell  v.  Evans, 
and  Iloden  v.  Hyde,  4  Q.  B.  626.  In  the  former  case  which  was  an  action  for  goods  sold, 
against  JVuliavi  Seal  Evans,  it  was  proved  that  the  goods  had  been  sold  to  a  person 
of  that  name,  who  had  been  a  customer,  and  had  written  a  letter  acknowledging  the 

the  attesting  witnesses.     Com.  v.  Castles,  torecoverfor  the  conversion  of  the  chattels, 

9  Gray  (Mass.),  121.     So  if  a  person,  by  may  give  the  deed  in    evidence  without 

false   and    fraudulent  representations,    in-  proving  its  execution  by  the  attesting  wit- 

duces  another  to  exchange  certain  chattels  ness.     Skinner  u.  Brigham,  126  Mass.  132. 
for  a  parcel  of  land,  for  which  he  delivers  [a)  In  re  Mair,   42  L.  J.  (N.   s.)  Ch. 

an  invalid  deed,  the  grantee,  in  an  action  882,  28  L.  T.  760. 


720  LAW   OF    EVIDENCE.  [PART   III. 

its  face  excites  suspicion  of  fraud. ^  The  instrument  may  also  in 
such  cases  be  read,  upon  proof  of  the  handwriting  of  the  obligor, 
or  party  by  whom  it  was  executed ;  ^  (b)  but  in  this  case  also  it  is 

receipt  of  the  goods  ;  but  there  was  no  other  proof  that  this  person  was  the  defendant. 
In  the  hitter  case,  which  was  against  Henry  Thomas  Kyde,  as  the  acceptor  of  a  bill  of 
exchange,  it  appeared  tliat  a  person  of  that  name  had  kept  cash  at  the  bank  where  the 
bill  was  payable,  and  had  drawn  checks,  which  the  cashier  had  i)aid.     The  cashier  knew 
the  i)erson's  handwriting  by  the  checks,  and  testitied  that  the  acceptance  was  in   the 
same  writing  ;  but  he  had  not  paid  any  check  for  some  time,  and  did  not  personally 
know  him,  and  there  was  no  other  proof  of  his  identity  with  the  defendant.    The  court, 
in  both  these  cases,  held  that  the  evidence  of  identity  was  priwa  facie  sufficient.     In 
the  latter  case,   the  learned  judges  gave  their  reasons  as  follows  :   Lord  Denman,  C.  J., 
"  The  doubt  raised  here  has  arisen  out  of  the  case  of  Whitelock  v.  Musgrove  (1  C.  & 
M.  511  ;  s.  c.  3  Tyrwli.  541)  ;  but  there  the  circumstances  were  different.     The  party 
to  be  fixed  with  liability  was  a  marksman,  and  the  facts  of  the  case  made  some  expla- 
nation necessary.     But  where  a  person,    in  the  course  of  the  ordinary  transactions  of 
life,  has  signed  his  name  to  such  an  instrument  as  this,   I   do  not  think  there  is  an 
instance  in  which  evidence  of  identity  has  been  reipiired,  except  Jones  v.  Jones  (9  M. 
&   W.    75).     There  the   name  was  proved  to  be  very  common   in  the  country  ;  and  I 
do  not  say  that  evidence  of  this  kind  may  not  be  rendered   necessary  by  pai  ticular 
circumstances,  as,   for  instance,  length  of  time  since  the  name  was  signed.     But  in 
cases  where  no  particular  circumstance  tends  to  raise  a  question  as  to  the  ])arty  being  the 
same,  even  iileutity  of  name  is  .something  from  which  an  inference  may  be  drawn.     If 
the  name  were  only  John  Smith,  which  is  of  very  frequent  occurrence,  there  might  imt 
be  much  ground  for  drawing  the  conclusion.     But  Henry  Thomas  Rydes,  are  not  so 
numerous  ;  and  from  that,  and  the  circumstances  generally,  there  is  every  reason  to 
believe  that  the  acceptor  and  the  defendant  are  identical.     The  dictum  of  Bolland,  B. 
(3  Tyrwh.  558),  has  been  already  answered.     Lord  Lyndhurst,   C.  B.,  asks  (3  Tyrwh. 
543),  why  the  onus  of  proving  a   negative  in  these  cases  should  be  thrown  upon  the 
defendant ;  the  answer  is,  because  the  proof  is  so  easy.     He  might  come  into  couit,  and 
have  the  witness  asked  whether  he  was  the  man.     The  sui)position  that  the  right  man 
has  been  sued  is  reasonable,  on  account  of  the  danger  a  party  would  incur,  if  he  served 
{>roces.s  on    the  wrong  ;   for,  if  he  did   so   wilfully,  the    court  would  no  doubt   exer- 
cise their  jurisdiction  of  punishing  for  a  contempt.     But  the  fraud  is  one  which,  in  the 
majority  of  cases,  it  would  not  occur  to  any  one  to  commit.     The  practice,  as  to  proof, 
which  has  constantly  prevailed  in  cases  of  this  kind,  shows  how  unlikely  it  is  that  such 
frauds  should  occur.     The  doubt  now  suggested  has  never  been  raised  before  the  late 
cases  which  have  been  referred  to.     The  observations  of  Lord  Abinger  and  Alderson, 
B.,  in  Greenshields  i;.   Crawford  (9  M.  &  W.  314),  apply  to  this  case.      'The  transac- 
tions of  the  world  could  not  go  on,  if  such  an  objection  were  to  prevail.     It  is  unfortu- 
nate that  the  doubt  should  ever  have  been  rai.sed  ;  and  it  is  best  that  we  should  sweep 
it  away  as  soon  as  we  can.'  "  —  Pattesou,  J.  :  "I  concur  in  all  that  has  been  said  by 
my  lord.     And  the  rule  always  laid  down  in  books  of  evidence  agrees  with  our  present 
decision.     The  execution  of  a  deed  has  always  been  proved,  by  mere  evidence  of  the 
subscribing  witness's  handwriting,   if  he  was  dead.     Tiie  party  executing  an  instru- 
ment  may  have  changed  his  residence.     Must  a  plaintiff  show  where  he  lived  at  the 
time  of  the  execution,  and   then  trace  him  through  every  change  of  habitation,  until 
he  is  served  with  the  writ  ?     No  such  necessity  can  be  imposed."  —  Williams,  J.  :  "  I 
am  of  the  same  opinion.     It  cannot  be  saiil  here  there  was  not  some  evidence  of  iden- 
tity.    .\  man  of  the  defendant's  name  had  kept  money  at  the  branch  bank  ;  and  this 
accepta:u- •  is  proved  to  be  his  writing.    Then,  is  that  man  the  defendant  ?    That  it  is  a 
person  of  the  same  name  is  some  evidence,  until  another  party  is  pointed  out  who  might 
have    been  the  acceptor.      In  Jones  v.   Jones  (9  M.    &  W.    75),   the  same  proof  was 
relied   upon;   and    Lord   Al)inger   said:   'The   argument   for   the   plaintiff  might  be 
correct  if  the  case  had  not  introduced  the  existence  of  many  Hugh  Joneses  in  the 
neighborhood  where  the  note  was  made.'     It  appeared  that  the  name  Hugh  Jones,  in 
the   particular  part   of  Wales,  was  so  common  as  hardly  to   be  a  name  ;  so  that  a 
doubt  was  raised  on  the  evidence  by  cross-examination.     That  is  not  so  here ;  and 
therefore  the  conclusion  must  be  different." 

*  Brown  v.  Kimball,  25  Wend.  259. 

6  In  Jackson  v.  Waldron,  13  Wend.   178,  183,  196,  197,  proof  of  the  handwriting 

(h)  Jones  v.  Roberts,  65  Me.  273. 


CHAP.    VI.]  PRIVATE   WRITINGS.  721 

conceived,  that  the  like  proof  of  the  identity  of  the  party  should 
be  required.  If  there  be  no  subscribing  witness,  the  instrument 
is  sufficiently  proved  by  any  competent  evidence  that  the  signature 
is  genuine.*^  (c) 

§  576.    Proof  by  comparison  of  haudvrritiugs.       In  considering  tlie 

proof  of  private  writings,  we  are  naturally  led  to  consider  the 
subject  of  the  comparison  of  hands,  upon  which  great  diversities 
of  opinion  have  been  entertained.  This  expression  seems  for- 
merly to  have  been  applied  to  every  case,  where  the  genuineness 
of  one  writing  was  proposed  to  be  tested  before  the  jury,  by  com- 
paring it  with  another,  even  though  the  latter  were  an  acknowl- 
edged autograph;  and  it  was  held  inadmissible,  because  the  jury 
were  supposed  to  be  too  illiterate  to  judge  of  this  sort  of  evidence ; 
a  reason  long  since  exploded.^  All  evidence  of  handwriting,  ex- 
cept where  the  witness  saw  the  document  written,  is,  in  its  na- 
ture, comparison.  It  is  the  belief  which  a  witness  entertains, 
upon  comparing  the  writing  in  question  with  its  exemplar  in  his 
mind,  derived  from  some  previous  knowledge. ^  The  admissibility 
of  some  evidence  of  this  kind  is  now  too  well  established  to  be 
shaken.  It  is  agreed  that,  if  the  witness  has  the  proper  knowl- 
edge of  the  party's  handwriting,  he  ma^  declare  his  belief  in  re- 
gard to  the  genuineness  of  the  writing  in  question.  He  may 
also  be  interrogated  as  to  the  circumstances  on  which  he  founds 
his  belief.^  The  point  upon  which  learned  judges  have  differed 
in  opinion  is,  upon  the  source  from  which  this  knowledge  is  de- 
rived, rather  than  as  to  the  degree  or  extent  of  it. 

§  577.  Same  subject.  There  are  Uvo  modes  of  acquiring  this 
knoivledge  of  the  handwriting  of  another,  either  of  which  is  uni- 
versally admitted  to  be  sufficient,  to  enable  a  witness  to  testify  to 
its  genuineness.     The  first  is  from  having  seen  him  write.     It  is 

of  the  obligor  was  held  not  regularly  to  be  offered,  unless  the  party  was  unable  to 
prove  the  liandvvriting  of  the  witness.  But  in  Valentine  v.  Piper,  22  Pick.  90,  proof 
of  the  handwriting  of  the  party  was  esteemed  more  satisfactory  than  that  of  the  wit- 
nesses. The  order  of  the  proofs,  however,  is  a  matter  resting  entirely  in  the  discre- 
tion of  the  court. 

6  PuUen  V.  Hutchinson,  12  Shepl.  249. 

^  The  admission  of  evidence  by  comparison  of  hands,  in  Col.  Sidney's  Case,  9 
Howell's  St.  Tr.  467,  was  one  of  the  grounds  of  reversing  his  attainder.  Yet,  though 
it  clearly  appears  that  his  handwriting  was  proved  by  two  witnesses,  who  had  seen 
him  write,  and  by  a  third  who  had  paid  bills  purporting  to  have  been  indorsed  by 
him,  this  was  held  illegal  evidence  in  a  criminal  case. 

2  Doe  V.  Suckermore,  5  Ad.  &  El.  730,  per  Patteson,  J.  See  also,  the  remarks  of 
Mr.  Evans,  2  Poth.  Obi.  App.  xv(.  §  6,  ad  calc.  p.  162. 

8  Reg.  V.  Murphy,  8  C.  &  P.  297  ;  Com.  v.  Webster,  5  Cash.  295. 

(c)  Lefferts  v.  State,  49  N.  J.  L.  27.    If  to  connect  the  paper  with  the  person  whose 

the  paper  is  printed,  with  a  name  printed  name  is  so  signed.     Brayley  v.  Kell}',  25 

as  a  signature,  there  must  be  some  proof  Minn.  160. 
VOL.   I. — 46 


722  LAW   OF   EVIDENCE.  [PART   TIL 

held  sufficient  for  this  purpose,  that  the  witness  has  seen  him 
write  but  once,  and  then  only  his  name.  The  proof  in  such  case 
may  be  very  light;  but  the  jury  will  be  permitted  to  weigh  it.^  (a) 
The  second  mode  is,  from  having  seen  letters,  bills,  or  other  docu- 
ments, purporting  to  be  the  handwriting  of  the  party,  and  having 
afterwards  personally  communicated  with  him  respecting  them ;  {h) 
or  acted  upon  them  as  his,  the  party  having  known  and  acquiesced 
in  such  acts,  founded  upon  their  supposed  genuineness;  or,  by 
such  adoption  of  them  into  the  ordinary  husiyiess  transactions  of 
life,  as  induces  a  reasonable  presumption  of  their  being  his  own 
writings ;  evidence  of  the  identity  of  the  party  being  of  course 
added  aliunde,  if  the  witness  be  not  personally  acquainted  with 
him.  2(c)     In  both  these  cases,  the  witness  acquires  his  knowl- 

1  Garrells  v.  Alexander,  4  Esp.  37.  In  Powell  v.  Ford,  2  Stark.  164,  the  witness 
had  never  seen  the  defendant  write  his  Christian  name;  but  only  "  M.  Ford,"  and 
then  but  once  ;  whereas  the  acceptance  of  the  bill  in  question  was  written  with  both 
the  Christian  and  surname  at  full  length  ;  and  Lord  Elienborough  thought  it  not 
sufficient,  as  the  witness  had  no  perfect  exemplar  of  the  signature  in  his  mind.  But 
in  Lewis  v.  Sapio,  1  M.  &  Malk.  39,  where  the  signature  was  "  L.  B.  Sapio,"  and 
tile  witness  had  seen  him  write  several  times,  but  always  "Mr.  Sapio."  Lord  Ten- 
terden  held  it  sufficient.  A  witness  has  also  been  permitted  to  speak  as  to  the  gen- 
uineness of  a  person's  mark,  from  having  seen  it  affixed  by  him  on  several  occasions. 
George  v.  Surrey,  1  M.  &  Malk.  516.  But  where  the  knowledge  of  the  liandwriting 
has  been  obtained  by  the  witness  from  seeing  the  party  write  his  name  for  that  pur- 
pose^ after  the  commencement  of  the  suit,  the  evidence  is  held  inadmissible.  Stranger 
V.  Searle,  1  Esp.  14.  See  also  Page  v.  Homans,  2  Shepl.  478.  In  Slaymaker  tJ.  Wil- 
son, 1  Peun.  216,  the  deposition  of  a  witness,  who  swore  positively  to  her  father's 
hand,  was  rejected,  because  she  did  not  say  how  she  knew  it  to  be  his  hand.  But  in 
Moody  V.  Rowell,  17  Pick.  490,  such  evidence  was  very  projierly  held  sufficient,  on  the 
ground  that  it  was  for  the  other  party  to  explore  the  sources  of  the  deponent's  knowl- 
edge, if  he  was  not  satisfied  that  it  was  sufficient. 

2  Doe  V.  Suckermore,  5  Ad.  &  El.  731,  per  Patteson,  J.  ;  Lord  Ferrars  v.  Shirley, 
Fitzg.  195  ;  Carey  v.  Pitt,  Peake's  Evid.  Ai^p.  81  ;  Tliorpe  o.  Gisburne,  2  C.  &  P.  21  ; 
Harrington  v.  Fry,  Ry.  &  M.  90  ;  Com.  v.  Carey,  2  Pick.  47  ;  Johnson  v.  Daverne,  19 
Johns.  134  ;  Burr  v.  Harper,  Holt's  Gas.  420 ";  Pope  v.  Askew,  1  Iredell,  16.  If  a 
letter  has  been  sent  to  the  adverse  party,  by  post,  and  an  answer  received,  the  answer 
may  be  read  in  evidence  without  proof  of  the  handwriting.  Ovenston  v.  Wilson,  2  C. 
&  K.  1  ;  s^ipra,  §  573  a;  Kinney  v.  Flynn,  2  E.  I.  319  ;  McKonkey  v.  Gaylord,  1 
Jones,  Law  (N.  C),  94. 

(a)  Pepper  v.  Barnett,  22  Gratt.  (Va.)  not  a  competent  witness  to  testify  to  the 

405  ;  Bowman  v.  Sanborn,  25  N.  H.  87  ;  handwriting  of  such  person,  if  it  appears 

Hopkins  v.   Megquire,   35  Me.  78  ;  West  that    some    of   the    eliecks   so   paid  were 

V.  State,  2  N.  J.  L.  212.    Before  being  ad-  forged,  and  that  the  witness  paid  alike  the 

nutted  to  testify  as  to  the  genuineness  of  forged  and  genuine  checks.     Brigham  v. 

a  controverted  signature  from  his  knowl-  Peters,  1  Gray,  139,  145,  146.     A  witness 

edge  of  the  handwriting  of  the  party,  a  who  has  done  business  with  the  maker  of 

witness   ought,    beyond   all   question,    to  the   note,   and  seen  him  write,   but  only 

have  seen  the  party  write,  or  be  conver-  since  the  date  of  the  disputed  note,  may 

sant    with    his    acknowledged    signature,  nevertheless  give  his  opinion  in  regard  to 

The  teller  of  a  bank,  who  as  such  has  paid  the  genuineness  of  the  note,  the  objection 

many  checks  purporting  to  be  drawn  by  a  going  to  the  weight  and  not  to  the  com- 

person  who  has  a  deposit  account  with  the  peteucy  of  the  evidence,    Keith  v.  Lathrop, 

bank,  biit  has  not  seen  him  wiite,  if  the  10  Cush.  453. 

testimony   shows    nothing    further,    is    a  (b)  Pearson  v.  McDauiel,  62  Ga.  100. 

competent   witness    to   testify   as    to   the  (c)  Sill  v.  Reese,  47  Cal.  294  ;  Spottis- 

handwriting  of   such  person  ;   but  he  is  wood  v.  Weir,  80  Cal.  450.     In   McKeone 


CHAP.    VI.]  PRIVATE    WRITINGS.  72B 

edge  by  his  own  observation  of  facts,  occurring  unaer  his  own  eye, 
and,  which  is  especially  to  be  remarked,  without  having  regard 
to  any  particular  person,  case,  or  document. 

§  578.  Same  subject.  This  rule,  requiring  personal  knowl- 
edge on  the  part  of  the  witness,  has  been  relaxed  in  two  cases. 
(1.)  Where  writings  are  of  such  antiquity^  that  living  witnesses 
cannot  be  had,  and  yet  are  not  so  old  as  to  prove  themselves.^ 
Here  the  course  is,  to  produce  other  documents,  either  admitted 
to  be  genuine,  or  proved  to  have  been  respected  and  treated  and 
acted  upon  as  such,  by  all  parties ;  and  to  call  experts  to  compare 
them,  and  to  testify  their  opinion  concerning  the  genuineness  of 
the  instrument  in  question. ^  (2. )  Where  other  writings,  admitted 
to  be  genuine,  are  already  in  the  case.  Here  the  comparison  may 
be  made  by  the  jury,  with  or  without  the  aid  of  experts.  The 
reason  assigned  for  this  is,  that  as  the  jury  are  entitled  to  look  at 
such  writings  for  one  purpose,  it  is  better  to  permit  them,  under 
the  advice  and  direction  of  the  court,  to  examine  them  for  all  pur- 
poses, than  to  embarrass  them  with  impracticable  distinctions,'  to 
the  peril  of  the  cause.^(a) 

1  Supra,  §  570. 

2  See  20  Law  Mag.  323  ;  Brune  v.  Rawlings,  7  East,  282  ;  Morewood  v.  Wood,  14 
East,  328  ;  Gould  v.  Jones,  1  W.  Bl.  384  ;  Doe  v.  Tarver,  Ry.  &  M.  143  ;  Jackson  v. 
Brooks,  8  Wend.  426. 

3  See  20  Law  Mag.  319,  323,  324  ;  Griffith  v.  Williams,  1  C.  &  J.  47  ;  Solita  v.  Yar- 
row, 1  M.  &  Rob.  133  ;  Rex  v.  Morgan,  Id.  134,  n.  ;  Doe  v.  Newton,  5  Ad.  &  El.  514  ; 
Broina^e  v.  Riee,  7  C.  &  P.  548  ;  Hammond's  Case,  2  Greenl.  33  ;  Waddington  v. 
Cousins,  7  C.  &  P.  595. 

V.  Barnes,  108  Mass.  344,  it  was  held  that  standard.     See  also  Blair  v.  Pelham,  118 

a  letter  received  by  the  witness,  purport-  Mass.  420. 

ing  to  be  from  the  testator,  in  reply  to  a  {a)  United  States  v.  Chamberlain,  12 
letter  sent  to  him  by  the  witness,  cannot  Blatchf.  C.  C.  390  ;  Brobston  i>.  Cahill, 
be  used  as  a  standard  of  comparison,  with-  64  111.  356;  Miles  ij.  Loomis,  10  Hun 
out  further  proof  of  its  authenticity.  But  (N\  Y.),  372,  s.  c.  75  N.  Y.  288;  Van 
cf.  Burress  v.  Com.,  27  Gratt.  (Va.),  934.  Wyck  v.  Mcintosh,  4  Kern.  (N.  Y.)  430  ; 
In  Com.  ir.  Coe,  115  Mass.  481,  it  was  Moore  i-.  United  States,  91  U.  S.  270  ; 
held,  that  the  question  of  the  admissibility  Bank  of  Houghton  v.  Robert,  41  Mich.  709. 
of  a  pa[)er  offered  as  a  standard  of  compari-  A  referee  may  also  make  such  compari- 
son is  for  the  judge,  and  his  decision  is  son.  Hunt  v.  Lawless,  7  Abb.  N.  Cas. 
tiual  so  far  as  it  is  a  question  of  fact  ;  and  113.  Even  though  the  signature  in  dis- 
that  exceptions  to  its  admissibility  will  pute  is  on  a  paper  which  has  been  lost, 
not  be  sustained,  unless  it  clearly  appears  experts  who  had  seen  the  signature  and 
that  there  was  some  erroneous  application  compared  it  with  writings  already  in  the 
of  the  principles  of  law  to  the  facts  of  the  case  have  been  allowed  to  testify.  Abbott 
case.  In  tliis  case,  a  note  signed  by  the  v.  Coleman,  22  Kans.  250.  If  the  docu- 
party,  whose  signature  was  contested,  was  ment  containing  the  disputed  signature 
put  in.  The  signature  alone  was  admitted,  cannot  be  brought  into  court,  a  competent 
From  the  similarity  of  the  letters  "Jan."  witness,  who  has  seen  and  examined  it, 
in  the  date  to  the  letters  "Jam"  in  the  may  testify  as  to  its  genuineness.  Sayer 
name,  the  prosecuting  officer  was  allowed  v.  Glossop,'  2  Ex.  409.  If  it  can,  opinion 
to  argue  that  "Jan."  was  also  in  the  hand-  founded  on  its  examination  out  of  court  is 
writing  of  the  defendant,  and  to  use  those  inadmissible.  Fitzwalter  Peer.  Case,  10 
letters  in  the  date  thus  proved  as  another  CI.  &  Fin.  193. 


724  LAW    OP   EVIDENCE.  [PART    lU. 

§  579.  Same  subject.  A  third  mode  of  acquiring  knowledge  of 
the  party's  handwriting  was  proposed  to  be  introduced  in  the  case 
of  Doe  V.  Suckermore;^  upon  which,  the  learned  judges  being 
equally  divided  in  opinion,  no  judgment  was  given;  namely,  by 
first  satisfying  the  witness,  by  some  information  or  evidence  not 
falling  under  either  of  the  two  preceding  heads,  that  certain 
papers  were  genuine,  and  then  desiring  the  witness  to  study 
them,  so  as  to  acquire  a  knowledge  of  the  party's  handwriting, 
and  fix  an  exemplar  in  his  mind;  and  then  asking  him  his  opinion 
in  regard  to  the  disputed  paper;  or  else,  by  offering  such  papers 
to  the  jury,  with  proof  of  their  genuineness,  and  then  asking  the 
witness  to  testify  his  opinion,  whether  those  and  the  disputed 
paper  were  written  by  the  same  person.  This  method  supposes 
the  writing  to  be  generally  that  of  a  stranger;  for  if  it  is  that  of 
the  party  to  the  suit,  and  is  denied  by  him,  the  witness  may  well 
derive  his  knowledge  from  papers,  admitted  by  that  party  to  be 
genuine,  if  such  papers  were  not  selected  nor  fabricated  for  the 
occasion,  as  has  already  been  stated  in  the  preceding  section. 
It  is  obvious,  that  if  the  witness  does  not  speak  from  his  own 
knowledge,  derived  in  the  first  or  second  modes  before  mentioned, 
but  has  derived  it  from  papers  shown  to  him  for  that  purpose,  the 
production  of  these  papers  may  be  called  for,  and  their  genuine- 
ness contested.  So  that  the  third  mode  of  information  proposed 
resolves  itself  into  this  question;  namely,  whether  documents, 
irrelevant  to  the  issues  on  the  record,  may  be  received  in  evidence 
at  the  trial,  to  enable  the  jury  to  institute  a  comparison  of  hands, 
or  to  enable  a  witness  so  to  do.^ 

§  580.  Same  subject.  In  regard  to  admitting  such  evidence, 
upon  an  examination  in  chief,  for  the  mere  purpose  of  enabling  the 
jury  to  judge  of  the  handwriting,  the  modern  English  decisions 
are  clearly  opposed  to  it.^     For  this,  two  reasons  have  been  as- 

*  5  Ad.  &  El.  703.  In  this  case,  a  defendant  in  ejectment  produced  a  will,  and,  on 
one  day  of  the  trial  (which  lasted  several  days),  called  an  attesting  witness,  who  swore 
that  the  attestation  was  his.  On  his  cross-examination,  two  signatures  to  depositions, 
respecting  the  same  will,  in  an  ecclesiastical  court,  and  several  other  signatures,  were 
shown  to  him  (none  of  these  being  in  evidence  for  any  other  purpose  of  the  cause),  and 
he  stated  that  he  believed  them  to  be  his.  On  the  following  day,  the  plaintiff  tendered 
a  witness,  to  prove  the  attestation  not  to  be  genuine.  The  witness  was  an  inspector  at 
the  Bank  of  England,  and  had  no  knowledge  of  the  handwriting  of  the  supposed  attest- 
ing witness,  except  from  having,  previously  to  the  trial  and  again  between  the  two 
days,  examined  the  signatures  admitted  by  the  attesting  witness,  which  admission  he 
had  heard  in  court.  Per  Lord  Denman,  C.  J.,  and  Williams,  J.,  such  evidence  was 
receivable  ;  per  Patteson  and  Coleridge,  JJ.,  it  was  not. 

6  See  5  Ad.  &  El.  734,  per  Patteson,  J. 

^  Bromage  v.  Rice,  7  C.  &  P.  548  ;  Waddington  v.  Cousins,  Id.  595  ;  Doe  v.  New- 
ton, 5  Ad.  &  El.  514  :  Hughes  v.  Pvogers,  8  M.  &  W.  123  ;  Griffits  v.  Ivery,  11  Ad.  & 
Kl.  322 ;  The  Fitzwalter  Peerage,  10  CI.  &  Fin.  193  ;  Regina  v.  Barber,  1  Car.  &  Kir. 


CHAP.    VI.]  PRIVATE   WRITINGS.  725 

signed :  namely,  first,  the  danger  of  fraud  in  the  selection  of  the 
writings  offered  as  specimens  for  the  occasion;  and,  secondly, 
that,  if  admitted,  the  genuineness  of  these  specimens  may  be  con- 
tested, and  others  successively  introduced,  to  the  infinite  multi- 
plication of  collateral  issues,  and  the  subversion  of  justice.  To 
which  may  be  added  the  danger  of  surprise  upon  the  other  party, 
who  may  not  know  what  documents  are  to  be  produced,  and,  there- 
fore, may  not  be  prepared  to  meet  the  inferences  drawn  from  them.^ 
The  same  mischiefs  would  follow,  if  the  same  writings  were  in- 
troduced to  the  jury  through  the  medium  of  experts.^ 

§  581.  Same  subject.  But,  with  respect  to  the  admission  of 
papers  irrelevant  to  the  record,  for  the  sole  purpose  of  creating  a 
standard  of  comparison  of  handwriting,  the  American  decisions 
are  far  from  being  uniform.  ^(«)     If  it  were  possible  to  extract 

434.  See  also  Regina  v.  Murphy,  1  Armstr.,  JIacartn.,  &  Ogle,  204  ;  Regina  v.  Cald- 
well, Id.  324.  But  where  a  witness,  upon  his  examination  in  chief,  stated  his  opinion 
that  a  signature  was  not  genuine,  because  he  had  never  seen  it  signed  K.  H.,  but 
always  R.  W.  H.,  it  was  held  proper,  on  cross-exiiniination,  to  show  him  a  paper 
signed  R.  H.,  ancl  ask  him  if  it  was  genuine,  though  it  was  not  connected  with  the 
cause,  and  he  answering  that,  in  his  o])inion,  it  was  so,  it  was  held  proper  further 
to  ask  him  whether  he  would  now  say  that  he  had  never  seen  a  genuine  signature  of  the 
party  without  the  initials  R.  W.  ;  the  object  being  to  test  the  value  of  the  witness's 
opinion.     Younge  v.  Honner,  1  Car.  &  Kir.  51 ;  s.  c.  2  M.  &  Rob.  536. 

2  Phil.  &  Am.  on  Evid.  700,  701.  See  the  Law  Review,  Ko.  4,  for  August,  1845, 
pp.  285-304,  where  this  subject  is  more  fully  discussed. 

^  Experts  are  received  to  testify,  whether  the  writing  is  a  real  or  a  feigned  hand, 
and  may  compare  it  with  other  writings  already  in  evidence  in  the  cause.  Revett  v. 
Brahani,  4  T.  R.  497  ;  Hammond's  Case,  2  Greenl.  33  ;  Moody  v.  Rowell,  17  Pick. 
490  ;  (Commonwealth  v.  Carey,  2  Pick.  47  ;  Lyon  v.  Lyman,  9  Conn.  55;  Hubley  v. 
Vanhorne,  7  S.  &  R.  185  ;  Lodge  v.  Phiplier,"ll  S.  &  R.  333.  And  the  court  will 
determine  whether  the  witness  is  or  is  not  an  expert,  before  admitting  him  to  testify. 
State  V.  Allen,  1  Hawks,  6.  But,  upon  this  kind  of  evidence,  learned  judges  are  of 
opinion  that  very  little  if  any  reliance  ought  to  be  placed.  See  Doe  v.  Suckerniore,  5 
Ad.  &  El.  751,  per  Ld.  Denman  ;  Gurney  v.  Langlands,  5  B.  &  Aid.  330;  Rex  v.  Cator 
4  Esp.  117  ;  The  Tracy  Peerage,  10  CI.  &  Fin.  154.  In  People  v.  Spooner,  1  Denio, 
343,  it  was  held  inadmissible.  Where  one  writing  crosses  another,  an  expert  may 
testify  which,  in  his  opinion,  was  the  first  made.  Cooper  v.  Bockett,  4  Moore,  P.  C. 
Cas.  433.  Tlie  nature  of  the  evidence  of  experts,  and  whether  they  are  to  be  regarded 
as  arbitrators  or  qicasi  iudges  and  jurors,  or  merely  as  witnesses,  is  discussed  with  great 
acumen  by  Professor  Mittermaier,  in  his  Treatise  on  Evidence  in  Criminal  Cases  (Traite 
de  la  Preuve  en  Matiere  Criminelle),  ch.  xxvL 

1  In  New  York,  Virginia,  and  North  Carolina,  the  English  rule  is  adopted,  and 
such  testimony  is  rejected.     Jackson  v.  Phillips,  9  Cowen,  94,  112  ;  Titford  v.  Knott, 

(a)  In  Massachusetts,  such  papers  are  bv    clear,    direct,    and   strong  testimony 

admitted  if  agreed,  or  proved  by  clear  and  (Rowell   v.   Fuller,    59    Vt.   691;   Adams 

undoubted  proof,  to  be  genuine.     Costello  v.    Field,    21    Vt.    256),    and    in    Penn- 

V.  Crowell,  133  Mass.  352  ;  s.  c.  139  Mass.  sylvaiiia  if  agreed  to  be  genuine,  and  per- 

390  ;  Com.  v.  Nefus,  135  Mass.  533.     This  haps  if  proved  to  be  so.      Power  v.  Frick, 

is  the  rule  in  Texas   (Phillips  v.   State,  6  2  Grant's  Cas.  306  ;  Clayton  v.   Siebert,  3 

Tex.  App.  364;  Hatch  r.  State,  Id.'  384),  Brewst.  176.     But  they  are  not  admitted 

and   Ohio  (Bell  v.  Brewster,  44  Ohio  St.  in  New  York  (Randolph  v.   Loughlin,  48 

693  ;  Bragg  v.  Colwell,  19  Ohio  St.    407  ;  N.  Y.  456  ;   Hynes  v.  McDermott,  7  Abb. 

Pavey     v.     Pavey,    30     Id.     600)  ;     and  N.  Cas.  98  ;  see  now  however  Stat.  1880, 

they     are     admitted     in      Vermont      if  c.  36),  Indiana  (Jones  v.   State,    60    Ind. 

agreed   to    be  genuine,    or    if  proved   so  241),  Illinois  (Jumpertz  v.  People,   21   111. 


726 


LAW   OP   EVIDENCE. 


[part   III. 


from  the  conflicting  judgments  a  rule,  which  would  find  sup- 
port from  the  majority  of  them,  perhaps  it  would  be  found  not  to 

2  Johns.  Cas.  211 ;  People  v.  Spooner,  1  Denio,  343  ;  Rowt  v.  Kile,  1  Leigh,  216  ; 
State  V.  Allen,  1  Hawks,  6  ;  Pope  v.  Askew,  1  Iredell,  16.  In  Massachusetts,  Maine, 
and  Conneoticut,  it  seems  to  have  become  the  settled  practice-  to  admit  any  papers  to 
the  jury,  whether  relevant  to  the  issue  or  not,  for  the  purpose  of  comparison  of  the 
handwriting.  Homer  v.  Wallis,  11  Mass.  309  ;  Moody  ■;;.  Rowell,  17  Pick.  490  ;  Kich- 
ardson  v.  Newcomb,  21  Pick.  315  ;  Hammond's  Case,  2  Greenl.  33  ;  Lyon  v.  Lyman, 
9  Conn.  55.  In  New  Hampshire  and  South  Carolina,  the  admissibility  of  such  papers 
has  been  limited  to  cases  where  other  proof  of  handwriting  is  already  in  the  cause,  and 
for  the  pur[)ose  of  turning  the  scale  in  doubtful  cases.  Myers  v.  Toscan,  3  N.  H.  47  ; 
State  V.  Carr,  5  N.  H.  367  ;  Bowman  v.  Plunket,  3  McC.  518;  Duncan  v.  Beard,  2 
Nott  &  McC.  401.  In  Pennsylvania,  the  admission  has  been  limited  to  papers  con- 
ceded to  be  genuine,  McCorkle  r.  Binn.s,  5  Binn.  340  ;  Lancaster  v.  Whitehill,  10 
S.  &  R.  110  ;  or  concerning  which  there  is  no  doubt,  Baker  v.  Haines,  6  Whart.  284  ; 

3  Greeul.  Ev.  §  106,  n. 


375),  Kentucky  (Hawkins  v.  Grimes,  13 
B.  Mon.  258),  Alabama  (Kirksey  v.  Kirk- 
sey,  41  Ala.  626  ;  AVilliams  v.  State,  61 
Id.  33),  Missouri  (State  w.  Clinton,  67  Mo. 
380),  Tennessee  (Kannon  v.  Galloway  2 
Baxt.  230;  Clark  v.  Rhodes,  2  Heisk.  206), 
Maryland  (Tome  v.  Parkersburg  Branch 
R.  R.  Co.,  39  Md.  36),  or  Wisconsin 
(Hazleton  v.  Union  Bank,  32  Wis.  34  ; 
State  V.  Miller,  47  Id.  530).  It  has  been 
held  that  a  paper  proposed  to  be  used  as  a 
standard  cannot  be  proved  to  be  an  origi- 
nal and  a  genuine  signature  merely  by  the 
opinion  of  a  witness  that  it  is  so  ;  such 
opinion  being  derived  solely  from  his  gen- 
eral knowledge  of  the  handwriting  of  the 
person  whose  signature  it  puri>orted  to  be. 
Com.  V.  Eastman,  1  Cush.  189,  217  ;  Mar- 
tin V.  Maguire,  7  Gray,  177  ;  Bacon  v. 
Williams,  13  Gray,  525,  but  this  question 
is  in  the  discretion  of  the  trial  judge,  see 
infra.  An  expert  may  testify,  whether 
in  his  opinion  a  signature  is  a  genuine 
one  or  simulated,  although  he  has  no 
knowledge  of  the  handwriting  of  the 
])arty  whose  signature  it  is  claimed  to  be. 
Withee  v.  Rowe,  45  Me.  571.  The  ques- 
tion of  the  genuineness  of  the  signature  to 
be  used  as  a  comparison  is  not  one  for  the 
juiy  but  for  the  court.  The  court  should 
determine  whether  the  signature  is  a  genu- 
ine one  or  not ;  if  not  genuine,  exclude 
it  from  the  jury  ;  if  genuine,  let  it  be  used 
by  them  in  comparison  with  the  disputed 
one.  It  is  the  better  rule  that  the  court 
should  determine  the  question  as  a  pre- 
liminary one,  and  not  perplex  the  jury 
with  so  many  questions  as  would  arise 
where  a  party  wished  to  use  a  great  many 
signatures  by  way  of  comparison:  Costelo 
V.  Crowell,  139  Mass.  590  ;  Com.  v.  Coe, 
115  Mass.  481  ;  Rowell  v.  Fuller,  59  Vt. 
691.  The  questions  involved  in  this  rule 
of  admitting  standards  of  comparison  were 


discussed  with  great  clearness  in  a  recent 
case  in  Maine.  State  v.  Thompson,  80  Me. 
196.  In  that  case  the  defendant  was  tried 
upon  an  indictment  for  libel.  In  the  trial 
of  the  case  the  government  offered  certain 
writings  as  being  in  the  handwriting  of 
the  defendant,  for  the  purpose  of  being 
used  as  a  standard  of  comparison.  Two  wit- 
nesses, claiming  to  have  seen  the  defen- 
dant write,  and  to  be  acquainted  with  liis 
handwriting,  were  introduced  to  testify 
that  the  writings  thus  offered  were  in  the 
handwriting  of  tlie  defendant.  Thereupon 
the  court  admitted  the  writing,  for  the 
purpose  for  which  they  were  offered? 
against  the  defendant's  objection.  After- 
waids,  during  the  trial,  expert  testimony 
was  introduced  by  the  government,  and 
these  writings  were  used  by  them  as  a 
standard  of  comparison,  to  which  the  de- 
fendant also  objected.  To  the  ruling  and 
decision  of  the  court  admitting  the  writ- 
ings as  a  standard  of  com|)arison,  and 
their  use  by  experts,  the  defendant  ex- 
cepted ;  and  the  court  says:  "  The  rule  in 
England  is  now  the  same  as  in  Massachu- 
setts and  Vermont.  For  centuries,  how- 
ever, it  was  otherwise,  and  the  English 
courts  denied  the  admissibility  of  such 
testimony  altogether,  until  1854,  when 
Parliament,  by  17  and  18  Victoria,  c.  125, 
passed  what  is  known  as  '  Tlie  Common 
Law  Procedure  Act,'  which  provides  that 
'comparison  of  a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of 
the  judge  to  be  genuine,  shall  be  permitted 
to  be  made  by  witnesses  ;  and  such  writ- 
ings, and  the  evidence  of  the  witnesses  re- 
specting the  same,  may  be  submitted  to 
th€  court  and  jury  as  evidence  of  the  genu- 
ineness, or  otherwise,  of  the  writing  in 
dispute.'  Under  this  rule,  when  any 
writing  is  proved  to  be  genuine  to  the 
satisfaction  of  the  presiding  judge,  it  shall 


CHAP.    VI.] 


PRIVATE   WRITINGS. 


727 


extend  beyond  this :  that  such  papers  can  be  offered  in  evidence 
to  the  jury,  only  when  no  collateral  issue  can  be  raised  concern- 
be  admitted  as  a  standard  of  comparison. 
By  the  Engli.-ih  rule  under  this  statute  the 
jury  need  not  consider  oi-  incjuire  into  the 
genuineness  of  the  wiiting  introduced  for 
the  purpose  of  comparison,  as  the  statute 
obviates  the  necessity  of  any  such  inquiry, 
and  raai<es  the  finding  of  the  judge  con- 
clusive on  that  point.  In  the  light  of  the 
authorities,  and  the  decisions  in  those  ju- 
risdictions where  the  same  rule  prevails  as 
in  this  State,  in  relation  to  proof  of  hand- 
writing by  comparison,  we  believe  the 
nile  adopted  by  them,  upon  the  question 
by  whom  the  genuineness  of  the  standard 
i.s  to  be  determined,  to  be  the  more  correct 
and  satisfactory  one.  Notwithstanding 
that,  however,  there  are  courts  of  high 
standing,  and  for  whose  decisions  we  have 
great  respect,  which  have  adopted  a  dif- 
ferent rule,  and  which  hold  that  the  jury 
slxould  ultimately  pass  upon  the  question. 
Such  is  the  rule  in  New  Hampshire,  where, 
as  it  is  well  understood,  the  doctrine  of 
proof  of  handwriting  by  comparison  has 
always  clung  more  tenaciously  to  the  con- 
servative and  English  common  law  rule, 
than  ever  ai)peared  satisfactory  to  the 
courts  of  Maine,  Massachusetts,  Connecti- 
cut, Vermont,  and  some  of  the  other  States. 
...  In  the  case  before  us  the  testimony  in 
proof  of  the  genuineness  of  the  standard, 
came  from  witnesses,  who,  if  they  are  to 
be  entitled  to  credit,  were  qualified  to  tes- 
tify in  relation  to  the  genuineness  of  the 
defendant's  handwriting.  It  was  in  ac- 
cordance with  the  well  settled  doctrine  of 
this  State  as  laid  down  in  Woodman  v. 
Dana,  52  Maine,  13,  where  the  court  in 
an  exhaustive  and  carefully  considered 
opinion  by  Rice,  J.,  reviewed  the  authori- 
ties, and  stated,  as  a  principle  well  estab- 
lished, that  the  haiulwriting  of  a  person 
may  be  proved  by  any  j)erson  who  has 
acquired  a  knowledge  of  it,  as  by  having 
seen  him  wiite,  from  having  carried  on  a 
correspondence  with  him,  or,  as  was  decided 
in  Hammond's  Case,  2  Maine,  33,  from  an 
acquaintance  gained  from  having  seen 
handwriting  acknowledged  or  proved  to  be 
his.  Page  v.  Homans,  14  Maine,  481  ; 
1  Greenl.  Ev.  §  577.  The  New  Hamp- 
shire courts  speaking  of  what  proof  is  ne- 
cessary in  estal)lishing  the  genuineness  of 
the  standard,  say  that  any  competent  evi- 
dence tentling  to  prove  that  the  paper  of- 
fered as  a  standard  of  comparison  is  genuine, 
is  to  be  received,  whether  the  evidence  be 
in  the  nature  of  an  admission,  or  the  opin- 
ion of  a  witness  who  knows  his  hand  wiit- 
ing, or  of  any  other  kind  whatever.     And 


in  Vermont,  in  the  case  of  Rowell  v.  Ful- 
ler, 59  Vt.  ()91,  already  cited,  it  was  insisted 
in  argument  that  the  evidence  was  legally 
insufficient  to  warrant  the  court  in  admit- 
ting the  standard  in  evidence  as  genuine  ; 
but  the  court  say,  that  while  great  care 
should  be  taken  that  the  standard  of  com- 
parison should  be  genuine,  yet  any  evi- 
dence pertinent  to  the  issue  is  admissible. 
In  the  case  under  consideration  there  was 
the  testimony  of  two  witnesses  who  stated 
their  knowledge  of  the  handwriting  of  the 
specimens  oti'ered,  and  that  the  handwrit- 
ing was  that  of  the  defendant.  It  was 
ujjon  this  evidence  that  the  court  admitted 
the  same  as  a  standard  of  comparison,  and 
for  no  other  purpose  as  stated  by  the  court, 
and  as  the  exceptions  themselves  show. 
The  decision  of  the  judge  presiding  was 
based  upon  certain  elements  of  fact,  as  to 
whether  the  si)ecimens  of  writing  were 
sufficiently  proved  to  have  been  written 
by  the  defendant  to  allow  them  to  be  in- 
troduced and  submitted  to  the  jury  as  a 
standard."  In  Minnesota,  in  the  case 
of  Morrison  v.  Porter,  35  Minn.  425,  the 
ipiestions  were  upon  the  admission  in 
evidence  of  an  instrument  not  otherwise 
relevant,  containing  a  signature  of  the 
plaintiff  admitted  to  be  genuine,  to  enable 
a  comparison  to  be  made  between  thnt 
signature  and  the  disputed  signature  iu 
issue  ;  and  expert  witnesses  were  allowed 
to  give  their  opinions,  based  upon  com- 
parison, the  court  ssiying  :  "  Upon  the 
question  thus  j)resented,  as  to  whether  a 
writing  admitted  to  be  in  the  hand  of  the 
person  whose  signature  is  in  issue  may 
be  received  in  evidence  for  the  purpose 
of  comparison,  the  authorities  are  so  at 
variance  that  we  are  at  liberty  to  adopt 
the  rule  of  evidence  which  seems  to  be 
most  consistent  with  reason,  and  condu- 
cive to  the  best  results.  At  common  law, 
and  generally  in  the  United  States,  it  hag 
been  the  rule  that  where  other  writings 
admitted  to  be  genuine,  are  already  in 
evidence  for  otlier  purposes  in  the  case, 
comparison  may  be  made  between  such 
writings  and  the  instrument  in  question. 
If  such  a  comparison  is  conducive  to  the 
ends  of  truth,  and  is  allowable,  there 
would  seem  to  be  but  little  reason  for  re- 
fusing to  allow  a  comparison  with  other 
writings  admitted  to  be  genuine,  although 
not  in  evidence  for  other  purposes.  The 
objections  which  have  been  urged  to  re- 
ceiving other  instruments,  for  the  purpose 
of  comparison,  have  been  the  multiplying 
of  collateral  issues  ;  the  danger  of  fraud 


728 


LAW    OF    EVIDENCE. 


[part    III. 


ing  them ;  which  is  only  where  the  papers  are  either  conceded  to 
be  genuine,  or  are  such  as  the  other  party  is  estopped  to  deny ;  or 


or  unfairness  in  selecting  instruments  for 
that  purpose,  from  the  fact  tliat  hand- 
writing is  not  always  the  same,  and  is 
atl'ected  by  age,  and  by  various  circum- 
stances which  may  attend  the  writing ; 
and  the  surprise  to  which  a  party  against 
whom  such  evidence  is  produced  may  be 
subjected.  When  the  writings  presented 
are  admitted  to  be  genuine,  so  that  col- 
lateral issues  are  not  likelj'  to  arise,  nor 
the  adverse  party  to  be  surprised  by  evi- 
dence which  he  is  unable  to  meet,  these 
objections  seem  to  us  to  be  insufficient  as 
reasons  for  excluding  the  evidence.  If 
such  evidence  has  apparent  and  direct 
probative  force,  it  should  not  be  excluded 
unless  for  substantial  reasons.  In  general, 
and  from  necessity,  the  authenticity  of 
handwriting  must  be  subject  to  proof  by 
comparison  of  some  sort,  or  bj'  testimony 
which  is  based  upon  comparison,  betwcf^n 
the  writing  in  question  and  that  which  is 
in  some  manner  recognized  or  shown  to  be 
genuine.  This  is  everywhere  allowed, 
through  the  opinions  of  witnesses  who 
have  acquired  a  knowledge,  more  or  less 
complete,  of  the  handwriting  of  a  person, 
as  having  seen  him  write,  or  from  acquain- 
tance with  papers  authenticated  as  genu- 
ine. In  such  cases  the  conception  of  the 
handwriting  retained  in  the  mind  of  the 
witness  becomes  a  standard  for  comparison, 
by  reference  to  which  his  opinion  is 
formed,  and  given  in  evidence.  It  would 
seem  that  a  standard  generally  not  less 
satisfactory,  and  very  often  much  more 
satisfactory,  is  afforded  by  the  opportunity 
for  examining,  side  by  side,  the  writing 
in  dispute  and  other  writings  of  unques- 
tioned authenticity  ;  and  this,  we  think, 
is  in  accordance  with  the  common  judg- 
ment and  experience  of  men.  The  evils 
that  may  be  suggested  as  likely  to  arise 
from  the  selection  of  particular  writings 
for  the  purposes  of  comparison,  may  be 
left,  as  all  unfair  or  misleading  evidence 
must  be,  to  be  corrected  by  other  evidence, 
and  by  the  intelligent  judgment  of  the 
court  or  jury."  The  statute  on  this  point 
in  New  York  is  somewhat  peculiar  (Stats. 
1880,  c.  36),  and  has  been  the  subject  of 
discussion  in  several  cases.  In  the  case 
of  Sudlow  V.  Warshing,  108  N.  Y.  522, 
an  expert  in  handwriting,  called  as  a  wit- 
ness for  the  defendants,  was  asked  by  their 
counsel  this  question:  "What  evidence,  if 
any,  do  you  find  in  the  signatures  to  the 
disputed  deed  of  their  being  simulated 
imitations  instead  of  genuine  signatures  ? " 
The  question  was  allowed,  and  the  witness 


answered  "  none  whatever."  Plaintiffs 
excepted  to  the  allowance  of  this  question, 
and  based  their  exception  on  the  case  of 
Rowing  V.  Mauly^  49  N.  Y.  192,  decided 
in  1872.  That  case  decided  that  where 
the  plaintiff  had  not  introduced  any  evi- 
dence to  show  that  a  jiaper,  produced  and 
relied  upon  by  the  defendants,  was  a  sim- 
ulated handwriting,  but  had  meiely  testi- 
fied that  it  was  not  written  by  him,  it  was 
not  competent  for  the  defendants  to  offer 
evidence  to  prove  that  the  paper  was  not 
in  a  simulated  handwriting.  In  the  case  of 
Sudlow  V.  W'arshing,  sujira,  the  facts  were 
that  two  of  the  grantors  in  a  deed  were 
dead,  namely,  the  widow  and  a  son  of 
John  W.  Sudlow.  The  plaintiffs,  while 
denying  the  genuineness  of  the  signatures 
to  the  disputed  deed,  testified  that  they 
bore  a  resemblance  to  their  signatures  and 
to  those  of  the  deceased  grantors,  and,  in 
at  least  one  instance,  the  witness  testified 
to  the  signature  being  a  fair  imitation  of 
his  own.  Comparisons  of  the  disputed 
deed  with  other  writings,  conceded  to  be 
genuine,  were  also  made  through  the  wit- 
nesses. It  was  held  that  these  facts  were 
sufficient  to  warrant  the  allowance  of  the 
question.  In  Miles  v.  Loomis,  75  N.  Y. 
288,  it  was  decided  that  it  was  competent 
for  experts,  upon  a  comparison  of  signa- 
tures without  any  other  knowledge  of  the 
testator's  writing,  to  express  an  ojdnion  as 
to  whether  the  disputed  writing  appeared  a 
natural  or  simulated  hand.  Since  the  de- 
cision in  Rowing  v.  Manly,  chap.  36  of 
the  Laws  of  1880,  was  passed,  by  which 
the  rules  of  evidence  in  respect  of  disputed 
handwritings  were  enlarged  beyond  what 
had  been  permitted  under  thei\  existing 
rules.  Peck  v.  Callaghan,  96  K.  Y.  74. 
In  this  last  case  (Peck  v.  Callaghan),  the 
evidence  objected  to  was  the  intioduc- 
tion  of  specimens  of  the  handwriting 
of  a  decedent,  offered  for  the  purpose 
of  enabling  experts  to  give  their  opin- 
ions as  to  the  genuineness  of  her  sig- 
nature to  the  will  by  comparisons  with 
such  specimens,  and  excepted  to  the  deci- 
sion of  the  surrogate  admitting  such  evi- 
dence. The  evidence  was  admitted,  and 
the  court  says  of  chapter  36  of  the  Laws 
of  1880  :  "  This  act  was  evidently  in- 
tended to  enlarge  the  rules  of  evidence 
and  extend  the  facilities  for  testing  the 
handwriting  of  a  party,  the  genuineness  of 
whose  signature  was  disputed,  beyond  the 
opportunities  afforded  by  the  then  existing 
rules.  It  was  therefore  competent  to  give 
the  evidence  of  experts  as  to  the  genuine- 


CHAP.    VI.]  PRIVATE   WRITINGS.  729 

are  papers  belonging  to  the  witness,  who  was  himself  previously 
acquainted  with  the  party's  handwriting,  and  who  exhibits  them 
in  confirmation  and  explanation  of  his  own  testimony. ^  (A) 

2  Smith  V.  Fenner,  1  Gall.  170,  175.  See  also  Goldsmith  v.  Bane,  3  Halst.  87  ; 
Bank  of  Pennsylvania  v.  Haldemaud,  1  Penn.  161  ;  Greaves  v.  Hunter,  2  C.  &  P.  477  ; 
Clermont  v.  Tullidge,  4  0.  &  P.  1  ;  Burr  v.  Harper,  Holt's  Cas.  420  ;  Sharp  v.  Sharp, 
2  Leigh,  249  ;  Baker  v.  Haines,  6  Whart.  284  ;  Finch  v.  Gridley,  25  Wend.  469  ;  Fogg 
V.  Dennis,  3  Humph.  47.  A  press  copy  of  a  letter  might  furnish  a  very  unsatisfactory 
standard  of  comparison  by  which  to  determine  whether  another  paper,  the  handwriting 
of  which  was  in  controversy,  was  written  by  the  same  person  ;  but,  although  incompe- 
tent as  a  means  of  comparison,  by  which  to  judge  of  the  characteristics  of  a  handwriting 
which  is  in  dispute,  it  might  still  retain  enough  of  its  original  character  to  be  identified 
by  a  witness,  when  its  own  genuineness  was  called  in  question.  Bigelow,  C.  J.,  in 
Commonwealth  v.  Jeffries,  7  Allen,  562. 


ness  of  handwriting  by  comparison  with 
other  specimens  of  the  party's  handwrit- 
ing, which  would  have  been  admitted  in 
evidence  for  other  lawful  purposes  ou  the 
trial  ;  but  it  would  not  have  been  compe- 
tent to  introduce  such  specimens  for  the 
sole  purpose  of  comparison.  Miles  v. 
Loomis,  75  N.  Y.  288.  .  .  .  The  act  in 
question  leaves  the  character,  number,  and 
sufficiency  of  identification  of  the  speci- 
mens offered  in  evidence  for  the  purposes 
of  comparison  entirely  to  the  discretion  of 
the  court,  and  thus  attempts  to  obviate 
the  objections  formerly  existing  to  this 
species  of  evidence.  The  language  of  the 
act,  however,  which  permits  tlie  introduc- 
tion of  specimens  of  a  person's  handwriting, 
for  the  pur])ose  of  comparison,  when  proved 
to  the  satisfaction  of  the  court,  authorizes 
only  the  admission  of  such  writings  as 
purport  to  be  the  handwriting  of  the  per- 
son, the  genuineness  of  whose  signature  is 
disputed.  The  disputed  writing  referred 
to  in  the  statute  relates  only  to  the  instru- 
ment which  is  the  subject  of  controversy 
in  the  action,  and  the  specimens  of  hand- 
writing admissible  thereunder  are  those  of 
the  person  purporting  to  have  executed 
the  instrument  in  controversy.  Any  other 
construction  would  place  it  within  the 
power  of  a  contestant  to  introduce  in  evi- 
dence specimens  of  the  handwriting  of  as 
many  persons  as  he  should  see  fit  to  charge 
with  the  act  of  forging  the  signature  in 
dispute." 

(b)  Depue  i\  Place,  7  Penn.  Law  Jour. 
289;  Com.  v.  Eastman,  1  Cush.  189; 
Rogers  V.  Ritter,  12  Wall.  (U.  S.)  317; 
Wilson  V.  Beaucham]!,  50  Miss.  24  ;  Hi(;ks 
V.  Pearson,  19  Ohio,  426.  A  writing 
made  in  the  presence  of  the  court  and  jury 
by  the  party  whose  signature  is  in  dispute, 
may  be  submitted  to  the  jury  for  the  pur- 
pose of  comparison.  Chandler  v.  Le  Barron, 
45  Me.  534.  Though  upon  cross-exam- 
ination a  witness  may  be  required  to  make 


his  signature,  for  the  purpose  of  comparing 
it  with  the  one  he  disputes  and  of  contra- 
dicting him,  he  has  no  right  to  make  such 
a  one  for  the  purpose  of  disproving  the 
genuineness  of  another,  and  to  sup])ort  his 
denial  of  its  genuineness.  Doe  v.  Wilson, 
10  Moo.  P.  C.  502  ;  Cobbett  v.  Kilminster, 
4  F.  &  F.  490  ;  King  v.  Donahoe,  110 
Mass.  155.  In  Com.  v.  Allen,  128  Mass. 
46,  the  decision  in  King  ■(.'.  Donahoe  was 
affirmed  and  the  principle  stated  to  be, 
that  the  presiding  judge  may,  in  his  dis- 
cretion, allow  signatures  to  be  written  at 
the  trial  by  one  of  the  parties,  for  com- 
parison, or  he  may  refuse  to  allow  such 
signatures  to  be  written.  Cf.  Reg.  »'.  Tav- 
lor,  6  Cox,  C.  C.  58.  In  Williams  v. 
State,  61  Ala.  33,  it  was  held  error  to 
allow  a  witness  to  write  his  name,  in  order 
to  corroborate  his  testimony,  but  it  was 
said  to  be  admissible  on  cross-examina- 
tion (referring  to  King  v.  Donahoe,  and 
Stranger  v.  Searle),  and  on  cross-examina- 
tion this  was  allowed  in  Bronner  v. 
Loomis,  14  Hun,  341.  Cf.  Chandler  v. 
Le  Barron,  45  Me.  534.  In  determining 
the  question  of  the  authorship  of  a  writ- 
ing, the  resemblance  of  the  characters  is 
by  no  means  the  only  test.  The  use  of 
capitals,  abbreviations,  punctuation,  mode 
of  dividing  into  paragiaphs,  of  making 
erasures  and  interlineations,  idiomatic  ex- 
pressions, orthography,  grammatical  con- 
structions, style  of  composition,  and  the 
like,  are  all  elements  upon  which  to  form 
the  judgment:  The  Handwriting  of  Junius, 
&c. ,  by  Chabot.  At  the  Greenwich  County 
Court,  a  plaintiff  denied  that  a  receipt 
thus  worded,  "Received  the  Hole  of  the 
above,"  was  in  his  handwriting.  On 
being  asked  to  write  a  sentence  in  which 
the  word  "whole"  occurred,  he  wrote  it 
"  Hole,"  and  then  ran  away  to  escape  a 
prosecution  for  perjury.  A  press  copy, 
and  duplicates  made  by  a  copying  ma- 
chine,   have    been   held    to   be  inadmis- 


730  LAW   OP   EVIDENCE.  [PART   III. 

§  581  a.  Same  subject.  A  distinction,  however,  has  been  re- 
cently taken,  between  the  case  of  collateral  writings  offered  in 
evidence  to  prove  the  general  style  or  character  of  the  party's 
autograph,  and  of  similar  writings  when  offered  to  prove  a  pecu- 
liar mode  of  spelling  another  person's  name,  or  other  words,  in 
order  to  show  from  this  fact  that  the  principal  writing  was  his 
own.  Thus  where,  to  an  action  for  a  libel,  the  defendant  pleaded 
that  the  plaintiff  had  sent  to  him  a  libellous  letter,  and,  to  prove 
this,  gave  in  evidence  the  envelope,  in  which  the  defendant's 
name  was  spelt  with  a  superfluous  t,  and  then  offered  in  evidence 
some  other  letters  of  the  plaintiff,  in  which  he  had  spelt  the  de- 
fendant's name  in  the  same  peculiar  manner;  which  last-men- 
tioned letters  Patteson,  J.,  rejected ;  it  was  held  that  the  rejection 
was  wrong,  and  that  the  letters  were  admissible.  ^ 

§  582.  Secondary  evidence,  when  admissible.  Where  the  SOUrceS 
of  primary  evidence  of  a  written  instrument  are  exhausted,  sec- 
ondary  evidence,  as  we  have  elsewhere  shown,  is  admissible ;  but 
whether,  in  this  species  of  evidence,  any  degrees  are  recognized 
as  of  binding  force,  is  not  perfectly  agreed ;  but  the  better  opinion 

1  Brookes  v.  Tichbourn,  14  Jur.  1122  ;  2  Eng.  Law  &  Eq.  374.  In  this  case,  Parke, 
B.,  after  stating  the  case,  observed  as  follows  :  "  On  showing  cause,  it  was  hardly  dis- 
puted that,  if  the  habit  of  the  plaintiff  so  to  spell  the  word  was  proved,  it  was  not 
some  evidence  against  the  plaintiff,  to  show  that  he  wrote  the  libel  ;  indeed,  we  think 
that  proposition  cannot  be  disputed,  the  value  of  such  evidence  depending  on  the 
degree  of  peculiarity  in  the  mode  of  spelling,  and  the  number  of  occasions  in  which  the 
plaintiff  had  used  it  ;  but  it  was  objected,  that  the  mode  of  proof  of  that  habit  was 
improper,  and  that  the  habit  should  be  proved  as  the  character  of  handwriting,  not  by 
producing  one  or  more  specimens  and  comparing  them,  but  by  some  witness  who  was 
acquainted  with  it,  from  having  seen  the  party  write,  or  corresponding  with  hini.  But 
we  think  this  is  not  like  the  case  of  general  stjie  or  character  of  handwriting  ;  the 
object  is  not  to  show  similarity  of  the  form  of  the  letters  and  the  mode  of  writing  of  a 
particular  word,  but  to  prove  a  peculiar  mode  of  spelling  words,  which  might  be 
evinced  by  the  plaintiff  having  orally  spelt  it  in  a  different  way,  or  written  it  in  that 
way,  once  or  oftener,  in  any  sort  of  character,  the  more  frequently  the  gi-eater  the 
value  of  the  evidence.  For  that  purpose,  one  or  more  specimens  written  by  him,  with 
that  peculiar  orthography,  would  be  admissible.  "We  are  of  opinion,  therefore,  that 
this  evidence  ought  to  have  been  received,  and,  not  having  been  received,  the  rule  for  a 
new  trial  must  be  made  absolute."  In  Jackson  v.  Phillips,  9  Cowen,  94,  where  the 
facts  were  of  a  similar  character,  the  collateral  deed  was  offered  and  rejected  on  the 
sole  ground  of  comparison  of  hands  ;  the  distinction  in  the  text  not  having  been  taken 
or  alluded  to. 

sible  as  standards  of  comparison.      Com-  this  would  seem   to    be    the    better   law. 

monwealth  v.    Eastman,  1  Cush.   (Mass.)  Photographs  are    not  strictly  copies,  but 

189.     A  photographic  copv  of  a  pay-roll  rather  facsimiles.     Magnified  copies  were 

is  not  admissible  from  which  to  prove  its  admitted   in    Marcy   v.    Barnes,    16  Gray 

forgerv,  when  the  original  is  procurable.  (Mass.),    161.     In   Tome    ?■.    Parkersburg 

Blatchford,  J.,  in  U.  S.  v.  Messman,  U.  S.  Br.  K.  R.  Co.,  39  ild.  36,  photographs  of 

D.    C.    So.   Dist.  N.  Y.  FebruaiT,  1874.  genuine  and  forged  signatures  were  offered. 

But  in  Tichbome's  Case,  photographs  of  but  rejected,  not  on  the  ground  that  they 

letters  and  documents  were  used  in  facili-  were  photographs,  but  on  the  ground  that 

fating  the  comparison  of  handwriting,   for  the  genuineness  of  a  signature  could  not  be 

the  purpose  of  identifying  the  writer  ;  and  proved  by  a  comparison  of  two  writings. 


CHAP.    VI.]  PRIVATE   WRITINGS.  731 

seems  to  be,  that,  generally  speaking,  there  are  none.  But  this 
rule,  with  its  exceptions,  having  been  previously  discussed,  it  is 
not  necessary  here  to  pursue  the  subject  any  further.  ^  (a) 

§  583.  Eflfect  of  private  writings.  The  effect  of  private  writings, 
when  offered  in  evidence,  has  been  incidentally  considered,  under 
various  heads,  in  the  preceding  pages,  so  far  as  it  is  established 
and  governed  by  any  rules  of  law.  The  rest  belongs  to  the  jury, 
into  whose  province  it  is  not  intended  here  to  intrude. 

§  584.  Conclusion.  Having  thus  completed  the  original  design 
of  this  volume,  in  a  view  of  the  principles  and  rules  of  the  law  of 
evidence,  understood  to  be  common  to  all  the  United  States,  this 
part  of  the  work  is  here  properly  brought  to  a  close.  The  student 
will  not  fail  to  observe  the  symmetry  and  beauty  of  this  branch 
of  the  law,  under  whatever  disadvantages  it  may  labor  from  the 
manner  of  treatment;  and  will  rise  from  the  study  of  its  princi- 
ples, convinced,  with  Lord  Erskine,  that  "they  are  founded  in  the 
charities  of  religion  —  in  the  philosophy  of  nature  —  in  the  truths 
of  history  —  and  in  the  experience  of  common  life.  "^ 

»  Supra,  §  84,  note  (2)  ;  Doe  v.  Ross,  7  M.  &  W.  102  ;  s.  c.  8  Dowl.  389. 

2  24  Howell's  St.  Tr.  96(3.  [It  may  be  convenient  here  to  advert  to  six  practical 
rules  of  some  importance,  all  of  which  will  he  found  applicable  to  evidence  of  every 
description.  First,  where  evidence  is  offered  for  a  particula.r  purpose,  and  an  objection 
is  taken  to  admissibility  for  that  purpose,  if  the  court  pronounces  in  favor  of  its 
general  admissibility  in  the  cause,  a  court  of  error,  on  exceptions  taken  (a  bill  of  excep- 
tions cannot  be  tendered  on  a  criminal  trial,  R.  v.  Esdaile,  1  Fost.  &  Fin.  213,  228,  per 
Ld.  Campbell),  will  support  the  decision  of  the  court  below,  provided  the  evidence  be 
admissible  for  any  purpose.  The  Irish  Society  v.  Bp.  of  Derry,  12  CI.  &  Fin.  641,  665. 
The  proper  coui'se  for  the  opposing  counsel  to  take  in  such  a  case  would  seem  to  be,  to 
call  upon  the  judge  to  explain  to  the  jury,  that  the  evidence,  though  generally  admis- 
sible in  the  cause,  furnishes  no  proof  of  the  particular  fact  in  question  ;  and  then, 
should  the  judge  refuse  to  do  so,  his  direction  might  be  the  suliject  of  a  distinct  excep- 
tion, or  an  application  might  be  made  to  the  court  above  for  a  new  trial  on  the  ground 
of  misdirection.  Id.  672-674,  per  Ld.  Brougham.  Secondly,  where  inadmissible  evi- 
dence is  received  at  tlie  trial  without  objection,  the  opposite  party  cannot  afterwards 
object  to  its  having  been  received.  Reed  v.  Lamb,  29  L.  J.  Ex.  452  ;  s.  c.  6  H.  &  N.  75  ; 
or  obtain  a  new  trial  on  the  ground  that  the  judge  did  not  exiu-essly  warn  the  jury  to 
place  no  reliance  upon  it,  Goslin  v.  Corry,  7  M.  &  Gr.  342  ;  Doe  v.  Benjamin,  9  A.  & 
E.  644.  Thirdhj,  where  evidence  is  objected  to  at  the  trial,  the  nature  of  the  object  ions 
mu8t  be  distinctly  stated,  whethei'  a  bill  of  exceptions  be  tendered  or  not  :  and,  on 
either  moving  for  a  new  trial,  on  account  of  its  improper  admission,  or  on  arguing  the 
exceptions,  the  counsel  will  not  be  permitted  to  rely  on  any  other  objections  than  those 
taken  at  Nisi  Prius.  Williams  v.  Wilcox,  8  A.  &  E.  314,  337  ;  Ferrand  v.  Milligan. 
7  Q.  B.  730  ;  Bain  v.  Whitehaven  &  Furness  Junct.  Ry.  Co.,  3  H.  of  L.  Cas.  1,  15-17, 
per  Ld.  Brougham.     Fourthly,  where  evidence  is  tendered  at  the  trial  on  an  untenable 

(a)  The    rule    in    England    has    been  he  lias  in  his  possession  a  counterpart,  a 

stated   to   be  at  present   "that   the   law  copy,   or  an  abstract  of  the  document." 

recognizes  no  degrees  in  the  various  kinds  Cf.   Hall  v.  Ball,  3  M.  &  G.  242  ;   Brown 

of  such  evidence,"  and  that  if  a  paper,  v.  Woodman,   6  C.    &  P.   206  ;    Jeans  v. 

whether  it  be  a  will  or  deed,  be  lost,  or  in  Wheedon,  2  M.   &  Rob.   486  ;    Brown  v. 

the    hands   of  the    adversary,   who,  after  Brown,   27   L.  J.  (Q.  B.)   173  ;    Quick  v. 

notice,  refuses  to  produce,  the  party  giv-  Quick,  33  L.  -J.  (P.  &  M.)  146  ;  Johnson 

iiig  the  notice  may  at  once  have  recourse  v.  Lyford,  37  L.  J.  (P.  &  M.)  65. 
to  parol  testimony,  "though  it  appear  that 


732  LAW    OF   EVIDENCE,  [PART   III. 

ground,  and  is  consequently  rejected,  the  court  will  not  grant  a  new  trial  merely  because 
Tt  has  since  been  discovered  that  the  evidence  was  admissible  on  another  ground  ;  but 
the  party  must  go  much  further,  and  show,  first,  that  he  could  not  by  due  diligence 
have  oOered  the  evidence  on  the  proper  ground  at  the  trial,  and,  next,  that  manifest 
injustice  will  ensue  from  its  rejection.  His  position,  at  the  best,  is  that  of  a  party  who 
has  discovered  fresh  evidence  since  the  trial.  Doe  v.  Beviss,  18  L.  J.  C.  P.  128  ;  s.  c. 
7  Com.  B.  456.  Fifthly,  where  evidence  is  rejected  at  the  trial,  the  party  proposing  it 
s\io\x\iX  formally  tender  it  to  the  judge,  and  request  him  to  make  a  note  of  the  fa:ct ; 
and,  if  this  request  be  refused,  he  should  then  tender  a  bill  of  exceptions.  If  this 
course  has  not  been  pursued,  and  the  judge  has  no  note  on  the  subject,  the  counsel 
cannot  afterwards  complain  of  the  rejection  of  the  evidence.  Gibbs  v.  Tike,  9  M.  &  W. 
351,  360,  361  ;  Whitehouse  v.  Hemmant,  27  L.  J.  Ex.  295  ;  Penu  v.  Bibby,  36  L.  J. 
Ch.  455,  461,  per  Ld.  Chelmsford,  Ch.  Lastly,  where  evidence  has  been  improperly 
admitted  or  rejected  at  Nisi  Prius,  the  court  will  grant  a  new  trial,  unless  it  be  clear 
beyond  all  doubt  that  the  error  of  the  judge  could  have  had  no  jwssible  effect  upon  the 
verdict,  in  which  case  they  will  not  enable  the  defeated  party  to  protract  the  litigation. 
Wright  V.  Doe  d.  Tatham,  7  A.  &  E.  330  ;  Baron  de  Faitzen  v.  Farr,  4  A.  &  E.  53,  57  ; 
Crease  v.  Barrett,  1  C.  M.  &  R.  919,  933  ;  Doe  v.  Langfield,  16  JI.  &  W.  497.  These 
cases  overrule  Doe  v.  Tyler,  6  Bing.  561  ;  s.  c.  4  M.  &  P.  377  ;  a  dictum  of  Ld.  Ten- 
terden  in  Tyrwhitt  v.  Wynne,  2  B.  &  Aid.  559  ;  and  one  by  Sir  J.  Mansfield  in  Hor- 
ford  V.  Wilson,  1  Taunt.  14.  See  Mortimer  v.  M'Callan,  6  JM.  &  W.  75  ;  Edwards  v. 
Evans,  3  East,  451.  It  may  further  be  stated,  that  the  wrongful  reception  of  evidence 
will  not  furnish  less  available  ground  for  a  new  trial,  although  the  jury  accompany 
their  verdict  with  a  distinct  and  positive  statement  that  they  have  arrived  at  it  inde- 
pendently of  the  obnoxious  evidence.     Bailey?;.  Haines,  19  L.  J.  Q.  B.  73,  78.] 


INDEX. 


INDEX. 


A. 

Section 

ABDUCTION,  wife  competent  to  prove 343 

ABSENT  WITNESS,  testimony  of 163,  n. 

ACCEPTANCE  AND  INDORSEMENT,  not  explicable  by  parol     .  276,  n. 

ACCESS,  when  presumed        {See  Non-Access) 28 

ACCESSORY,  not  a  competent  witness  for  the  principal 407 

ACCIDENT,  FRAUD,  AND  MISTAKE,  parol  evidence  to  correct  .     296  a 

ACCOMPLICE,  when  acts  of  one,  evidence  against  another  .     ...  Ill,  n. 

may  be  convicted  on  his  own  confession,  if  he  refuse  to  testify  219,  n.,  379 

who  is,  question  for  the  court 380,  n. 

apparent  accomplices 382,  382,  n. 

detectives,  &c 382,  n. 

by  becoming  witness,  waives  privileges 451,  n.,  454 

when  admissible  as  witnesses 379-382 

apparent 382 

should  be  con-oborated 381,  n. 

what  is  corroborative  of 381,  n. 

who  are  corroborative  of         (See  Witnesses) 380-382 

ACCOUNT,  rendered,  effect  of,  as  an  admission 212 

ACCOUNTS,  voluminous,  secondary  evidence  of    .     .     .    93,  436,  «.,  439,  n. 
ACKNOWLEDGMENT,  limitations,  joint  debtor  ....     112,  «.,  174,  n. 

of  payment  by  receipt 212 

certificate  of, "whether  impeachable  by  parol 276,  n. 

of  deed,  force  and  effect  of 573,  n. 

ACQUIESCENCE,  what  is,  so  as  to  bind  the  party 197,  1!.'8 

ACQUITTAL,  record  of,  when  evidence 583 

ACT,  public,  what 5,  n. 

ACTION  OF  CRIM.  CON.,  letters  of  wife  to  husband  inadmissible     .    102 

ACTS,  book  of,  when  evidence 519 

evidence  not  hearsay .■■.""  .^*^"^ 

of  Conirress,  and  of  State  Legislatures  if  public,  are  judicially  noticed  5,  n. 

proof  of  authority 83 

public,  what  are,  are  judicially  noticed 5,  n. 

ACTS  OF  PARTIES,  when  admissible  to  explain  writings      .     .     293,  295 
ACTS  OF  STATE,    {See  Public  Recokus  and  Documents.) 

how  proved 479,  487,  n. 


736  INDEX. 

Section 

ADJUSTMENT  OF  LOSS,  when  and  how  far  conclusive 212 

{See  Admissions.) 

ADMINISTRATION,  letters  of,  how  proved 519 

prima  facie  evidence  of  death 41,  550 

foreign,  effect  of ^44 

ADMINISTRATOR,  competency  of,  as  a  witness 347,  402 

admissions  by ]^^^ 

promise  by,  when  it  must  be  in  writing 267 

sales  by,  presumed  regular 20 

ADMIRALTY,  courts  of,  and  seals,  judicially  noticed ^' '*^^ 

judgments,  when  and  how  far  conclusive 525,  541 

ADMISSIBILITY,  relevancy,  the  test  of 49,  n.,  462,  n. 

ADMISSIONS,  of  contents  of  a  writing,  when  not  sufficient      .     .    96,  96,  n. 

distinction  between  coH/ess<o./ur/s  and  co/i/eA-sto/«c<i 96,203 

by  agents,  when  binding  on  principal 113,114 

what,  and  when  receivable 169.  170 

admissibility  of,  is  for  judge 169,  n. 

in  chancery jiV 

made  by  a  party  to  the  record I'l 

made  in  pleadings ito 

made  by  party  in  interest •     •    1''2 

one  of  joint  parties 112,  172, 174,  n. 

party  merely  nominal,  excluded 172 

how  avoided,  if  pleaded      ....    173 
one  of  several  parties,  not  receivable  unless  a  joint  in- 
terest        174,  174,  n. 

of  joint  devisee  or  legatee 174,  n. 

rated  parishioner 175 

quad  corpoiators '     '     '     '    ^'^'* 

one  of  several  parties,  common  interest  not  sufficient, 

unless  also  joint 176 

apparently  joint,  is  pn?na/acie  sufficient 177 

answer  in  chancery  of  one  defendant,  when  receivable 

against  others 178 

persons  acting  in  autre  droit,  when  receivable    .  176,  n.,  179,  180 

guardian,  &c.,  binds  himself  only 179 

party  interested 180 

strangers,  when  receivable 181 

persons  referred  to,  whether  conclusive 183,  184 

only  as  to  facts  in  reference 182,  n. 

wife,  when  admissible  against  husband   .     .     .     185,  n.,  341,  n. 
not  admissible  unless  some  proof  of  agency  of  wife  or 

ratification 185,  n. 

attorney         (See  Attorney) 186 

principal  as  against  surety 187,  188 

one  in  privity  with  another 189,  n.,  190 

assignor,  before  assignment 190 

by  attorney  when  binding  on  client 186 

executor 1^" 

parishioner 179 

infant  in  suit  after  majority 171,  n. 

answers  to  interrogatories 171,  n. 

part  payment,  limitations 174,  n. 

son  in  action  brought  by  father 180,  n. 

interpreter ^'^' 

reference  and  award lo2 


INDEX.  737 

ADMISSIONS,—  Ton/nn/^J.  Section 

tenant  against  laiidloifl •_   1^3 

conduct,  assumed  oliaracter,  silence .      195-197 

answer  to  iutoi  roj^atory  filed  iu  suit 552 

use  of  deposition  of  anotlier 553 

of  cestui  (jue  Irust 180 

by  bankrupt,  in  examination,  not  admissible 226 

by  omission  from  schedule  of  debts 190 

intestate,  binding  upon  administrator 189 

by  procheln  ainij 1"9 

of  deputy  against  sheriif ^     180 

by  persons  afterwards  interested 179,  ISO 

coexecutor  and  administrator 189 

wliom  they  may  be  proved 191 

time  and  circumstances  of  making  the  admission 192 

offer  of  compromise  is  not  an  admission 192 

made  under  duress 193 

competent,  of  contents  of  writing 20:>,  n. 

not  rebutted  by  i)roof  of  different  statements 209,  n. 

on  oath,  when  conclusive 210 

not  rebutted  by  proof  of  different  statements 209,  n. 

direct  and  incidental  admissions,  same  in  effect 194 

implied  from  assumed  character,  language,  and  conduct      .     .      195,  190 

acquiescence,  when 197, 197  n 

possession  of  documents 198 

possession  of  unanswered  letters 198,  n. 

implied  assent  to  the  verbal  statements  of  another 199 

verbal  to  be  received  with  great  caution 45,  200 

whole  to  be  taken  together 201,202 

containing  hearsay 202,  n. 

verbal,  receivable  only  to  facts  provable  by  parol 96,  203 

when  and  how  far  conclusive 204 

judicial  admissions,  how  far  conclusive 27,  186,  205,  527  a 

if  improvidently  made,  what  remedy    ....    206 

by  payment  into  court 205 

acted  upon  by  others,  when  and  how  far  conclusive    ...     27,  207,  208 

of  principal  as  against  surety 187 

not  acted  upon,  not  conclusive 209 

when  held  conclusive,  from  public  policy 210,211 

by  receipts 212 

by  adjustment  of  a  loss '     "     •    ~^" 

of  facts  not  involving  guilt  in  criminal  trials,  are  not  confessions    213,  n.^ 

omission  from  bankrupt's  schedule  of  creditors 196 

by  account  rendered 21- 

in  bill  ill  equity      {See  also  Confessions,  Hearsay,  Res  gestae)   .   212 

ADULTERY,  one  act  of,  how  far  proof  of  another 53 

provable  by  confession  in  divorce  case 217 

competency  of  husband  or  wife,  in  proceedings  based  on     .     .     .    334,  n 

ADVERSE  ENJOYMENT,  presumption  from 16 

when  it  constitutes  title 1" 

AFFIDAVIT,  fx  pn77e,  admissible,  when 104,  7i. 

may  be  made  in  his  own  case,  by  atheist 370,  n. 

persons  infamous 375 

other  parties 348,  349,  558 

wife 344 

observations  on  value  of 462,  n. 

AFFIRMATION,  judicial,  when  substituted  for  an  oath 371 

vor,.  I.  —  47 


738  INDEX. 

AFFTR:\rATIVE,         {See  Onus  ruoBANDi.)  Section 

AGE,  proof  of .'    .     .     104,  116,  440,  n.,  493 

AGENT,  auctioneers,  of  both  parties 269 

presumption  in  favor  of  authority  of 21 

when  and  liow  far  his  declarations  bind  the  principal      .     .      .       113,  234 
when  a  competent  witness  for  the  principal,  and  when  not      .      416,  417 
(See  Witnesses.) 

may  prove  his  own  authority,  if  parol 416 

■when  his  authority  must  be  in  writing 269 

AGREEMENT,         {See  Contract.) 

ALLEGATIONS,    {See  Onus  Probandi)  and  proof  must  correspond    .      51 

how  proved 78,  79 

negative,  burden  of  proof  of 74,  n.,  80 

material 51 

exclude  collateral  facts 52 

what  are  collateral  facts 53 

when  character  is  material 54,  55 

descriptive,  nature  of 56-5S 

formal  and  informal,  what 59 

made  descriptive  by  the  mode  of  statement 60 

of  time,  place,  quantity,  &c.,  when  descrijjtive 61,  62 

redundant 67 

difference  between  these  and  redundancy  of  proof     ...      68 
"  immaterial,"    "  impertinent,"    and 

"unnecessary" 60,  n. 

ALIBI,  burden  of  proof  of 81,  «. 

ALTERATION,  erasures  and  interlineations 564-568  a 

of  written  contracts  by  oral  agreements 302 

of  instruments,  what,  and  effect  of 564-568 

presumption  as  to  time  of 565 

distinguished  from  spoliation 566 

immaterial,  need  not  be  explained 564,  n.,  567 

burden  of  proof  as  to 564,  n. 

AMBIGUITIES,  latent  and  patent,  what     _ 297-300 

when  parol  evidence  admissible  to  explain 297-300 

not  to  be  confounded  with  inaccuracies 299 

AMENDMENT,  allowed,  to  avoid  the  consequences  of  a  variance      .     .      73 

ANCIENT  BOUNDARIES,     {See  Boundaries  ) 

ANCIENT  WRITINGS,  what  are 21,  141,  n. 

age  at  time  of  trial  decides  admissibility    {See  Documents)    •     .   141,  n. 
when  admissible  without  proof  of  execution      ....  21,  142-144,  .570 

rights  provable  by  hearsay 130 

possessions  provable  by  hearsay 141-146 

boundaries  provable  by  heai'say 145,  n. 

documents,  presumptions  in  favor  of 21,  143,  144,  570 

books  of  town-officers,  taxes 150,  n. 

ANSWER,  to  interrogatory,  admission  by 552,  n. 

of  ono  defendant  in  chancery,  when  admissible  against  the  other  .      .    178 

in  chancery,  whether  conclusive 210 

what  amount  of  evidence  necessary  to  disprove 260,  n. 

admissible  for  defendant,  why 351,  551 

proof  of 512 

APPEARANCES,  provable  by  opinion 440,  n. 


INDEX.  739 

Section 
APPOINTMENT  TO  OFFICE,  when  proved  by  acting  in  it  .     .     .     8'.]A)2 

when  pioved  by  parol 92 

APPRENTICESHIP,  contract  of,  must  be  in  writing 274 

ARBI'lTiATORS,  not  bound  to  disclose  grounds  of  award 249 

ARMORIAL  BEARIN(iS,  when  evidence  of  pedigree 105,  n. 

ARREST,  exemption  fiom,     (See  Witnessks) 316 

ART,  processes  of,  and  science,  judicially  noticed 6,  n. 

ARTICLES  OF  THE  PEACE,  by  wife  against  husband 343 

ARTICLES  OF  WAR,     (See  Acts  of  State) 449 

ASSAULT  AND  BATTERY,  of  wife,  by  husband 343 

ASSESSMENT  BOOKS,  admissibility  and  effect  of  .     .     .     .     143,  ?i.,  493 

ASSIGNMENT,  of  c//ose.s  m  ac/io?i 173 

ASSIGNOR,  admissions  by 190 

ASSUMPSIT,    (See  Contract)   action  of,  when  barred  by  prior  re- 
covery in  tort    .     .         532 

ATHEISTS,  incompetent  witnesses 368-372 

statutes  concerning 368,  u. 

mode  of  proving  atheism 370,  n. 

competency  of,  is  for  judge     {See  Witnesses) 370,  n. 

ATTACHMENT,  for  contempt 319 

ATTENDANCE  OF  WITNESSES,  how  procured  (5ce  Witnesses)  309-319 

ATTESTATION  OF  COPIES,  mode  of 506 

ATTESTING  WITNESSES,  who  are 569 

declarations  of  deceased  witnesses  rejected,  why 126 

character  of,  impeachable 126,  n. 

when  not  required      (See  Private  Writings) 571,  572 

ATTORNEY,  may  prove  client's  handwriting 242 

when  his  admissions  bind  his  client 186 

•whether  a  competent  witness 237,  n.,  364,  386 

(See  Privileged  Communications.) 

AUCTIONEER,  is  agent  of  both  buyer  and  seller 269 

AUDITOR'S  REPORT,  presumed  correct 44,  n. 

AVERMENT,      (See  Allegations) 51-60,  n. 

AWARD,  arbitrators  not  bound  to  disclose  grounds  of 249 

generally  conclusive 183,  n.,  184 


B. 

BAIL,  how  rendered  a  competent  witness  for  principal  (See  Witnesses)  430 

BAILOR,  when  a  competent  witness 348 

BANK,  books  of     (See  Public  Records  and  Documents)     .     .      474-493 

BANK  BILL,  holder  not  bound  to  explain  possession 81,  w. 

BANKRUPT,  admission  by  omission  of  debt  from  schedule      ....    196 

when  competent  as  a  witness 392 

BANKRUPTCY,  efTect  of  discharge  by,  to  restore  competency  ....    430 

examination  in,  no  admission  by  bankrupt 226 

BAPTISM,  proof  of 104,  n.,  115,  n. 

register  of 493 

BARON  AND   FEME,     (See  Husband  and  Wife.) 


740  INDEX. 

Section 

BASTARDY,  cross-examination  of  complainant 458,  n. 

BEGINNING  AND  REPLY,  who  are  entitled  to ^75 

whether  affected  by  proof  of  damages 75,  76 

BELIEF,  grounds  of 7-12 

how  far  admissible 440 

of  handwriting 575 

religious,  presumed     (See  Experts,  Witnesses) 370 

BENTHAM,  JEREMY,  character  of  his  legal  writings 435,  n. 

BEST  EVIDENCE,   defined      (See  Primary  Evidence)  ...    82,  82,  n. 

BIBLE,  family  record  in,  when  evidence 104 

BIGAMY,  proof  of,  by  second  wife 339 

BILL  IN  EQUITY,  how  far  its  statements  are  evidence  against  plaintiff  212 
BILL  OF  EXCHANGE,  parties  to,  when  incompetent  to  impeach  .  383-385 

(See  Witnesses.) 

BILL  OF  PARCELS,  may  be  explained  by  parol 305,  n. 

BILL  OF  SALE,  absolute,  may  be  shown  to  have  been  conditional  by 

parol 284,  n. 

BIRTH,  proof  of 104,  115,  n.,  116,  493 

BIRTHPLACE,  not  provable  by  common  repute 104 

BISHOP'S  REGISTER,  inspection  of 474 

nature  of      (See  Public  Books) 483,  484 

BLANK,  in  an  instrument,  when  and  by  whom  it  may  be  filled  567,  568,  568  a 

BONA  FIDES,  question  for  jury 49,  n. 

BOND,  absolute,  may  be  shown  by  parol  to  be  conditional    ....  284,  n. 

consideration  for,  presumed 19 

office,  how  proved      (See  Private  Writings) 573 

BOOK  CHARGES,  evidence  of  what     (See  also  Entries) 118 

BOOKS,  of  science,  not  admissible  in  evidence 44,  n. 

shop,  when  and  how  far  admissible  in  evidence 117,  118 

of  third  persons,  when  and  why  admissible  ....      115-120,  151-154 

of  custom-house,  inspection  of 475 

of  deceased  rectors      (See  Hearsay) 155 

office  books,  corporation  books,  &c 474-476,  493-495 

(See  Public  Records  and  Documents.) 

BOUNDARY,  surveyor's  marks  provable  by  parol 94 

judicially  noticed,  when 6,  n. 

ancient,  provable  by  hearsay 139,  n.,  145,  n. 

ancient  private,  what  declarations  will  prove 145,  n. 

declarant  must  have  competent  knowledge 145,  n. 

and  must  have  since  died 145,  n. 

Massachusetts  rule  as  to 145,  n. 

general  rule  in  United  States 145,  n. 

proved  by  surveyors 1*5,  n. 

parish,  proof  of ^149 

when  provable  by  reputation 145,  n. 

rules  of  construction  as  to 301,  n. 

BURDEN"  OF  PROOF 74-81 

does  not  shift  in  the  trial J4,  n. 

different  from  weight  of  evidence 74,  7i. 

extent  of 74,  »i. 

in  criminal  cases 74,  7*^ 

of  license "9,  n. 


INDEX.  741 

BURDEN   OF  mO OF,— Continued.  Section 

of  insanity ol,  ?». 

of  alibi ^1'  "■ 

as  to  alteration      (.Sec  Onus  Pkobandi) 5G1,  n. 

BUSINESS,  usual  course  of,  presumption  from 38,  40 


c. 

CALENDAR,  prison,  proves  commitment 493 

CANCELLATION  of  deed,  effect  of 2G5,  5C8 

of  will 2U8 

CANON  LAW,  rules  of 260fl,  r,. 

CAPACITY,  and  discretion,  presumed 28,  367 

CARE,  and  negligence,  generally  for  jury 49,  n. 

CARRIER,  when  admissible  as  a  witness 410 

CERTAINTY,  degree  of,  requisite  in  testimony 440 

CERTIFICATES,  of  Secretary  of  State,  proof  by 479 

of  contents  of  record,  inadmissible 485,  498,  514,  n. 

by  public  officers,  in  what  cases  admissible 485,  498 

CERTIORARI,  to  remove  records 502 

CESTUI  QUE  TRUST,  when  his  admissions  are  evidence  against  his 

trustee 180 

CHANCERY,       (See  the  particular  titles  of  Bill,  Answer,  Deposi- 
tions, and  other  proceedings  in  Chancery.) 

CHARACTER,  best  evidence  of 55,  n. 

when  in  issue 55,  7i^ 

not  provable  by  particular  acts 55 

of  horse  may  be  proved  by  particular  acts 55,  n. 

not  admissible  to  impeach  credit  of  entries  in  shop  books    .     .     .    118,  ri. 

admissible  to  impeach  attesting  witness 126,  n. 

when  it  is  relevant  to  the  issue 54,  55 

when  provable  in  support  of  witness 469 

defined 54,  «. 

always  relevant  when  jurors  assess  the  fines 54 

CIIILDREX,  competency  of,  as  witnesses 367 

legitimacy  of,  presumed 28,  28,  n. 

CHOSE  IN  ACTION,  not  assignable  when 173,  n. 

CIRCUMSTANCES,  proof  of,  in  criminal  cases 13fl,  n. 

force  of 13«,M. 

CIRCUMSTANTIAL  EVIDENCE 13,13  a 

definition  of I'^ 

must  be  based  on  facts  proved  by  direct  evidence 13,  n, 

must  be  a  strong  and  clear  inference  from  those  facts      .     .     .     •     13,  n. 

weight  of,  is  for  jury 13,  n. 

quantity  of,  to  support  a  verdict 13,  n.,  13  a,  13  a,  n. 

degrees  of      (See  Evidence,  Presumption) 13  a 

CITIZENSHIP,  immaterial  as  to  effect  of  foreign  judgment      ....    549 

CLERGYMEN,  generally  bound  to  disclose  confessions  made  to  them  229,  247 
by  statute,  such  confessions  are  privileged  in  some  States    .     .     .  247,  n. 

CLERK,  of  attorney,  when  not  compellable  to  testify 239 

COERCION,  of  wife  by  husband,  when  presumed 28,  28,  n. 


742  INDEX. 

Section 
COHABITATION,  as  ground  of  liability  of  liusband  lor  goods  sold  the 

alleged  wife 207 

whea  presumptive  evidence  of  legitimacy  of  issue 82 

COINCIDENCES,  as  grounds  of  belief 12 

COLLATERAL  FACTS,  what  and  when  excluded     .     51  a,  n.,  52,  443,  459 

admissible  if  connected  with  the  issue 51  a,  n.,  52,  n. 

to  prove  value 51a,  n.,  52,  ?i. 

in  opinion  of  experts 52,  m. 

to  show  motive 52,  n,  53,  n. 

to  show  guilty  knowledge 53,  n. 

to  identify  person 52,  /i. 

on  questions  of  negligence 51  n,n. 

admissibility  is  for  judge 51  a,  n.,  52,  n. 

COLLATERAL  WRITINGS,  provable  by  parol 89 

COLOR,  when  a  material  averment 65 

COMITY,  international,  presumed 43 

COMMISSION,  to  take  testimony    . 320 

COMMITMENT,  proved  by  calendar  *. 493 

COMMON,  customary  right  of,  provable  by  reputation    128,  131,  137,  n.,  405 

COMMON  REPUTE,  evidence  of  relationship 103,  n. 

and  death 104,  n. 

COMMONER,  when  a  competent  witness 505 

COMMUNICATIONS,  privileged 237-245 

COMPARISON  OF  HANDWRITINGS  (See  Private  Writings)  576-581 
COMPETENCY,  of  parties  and  persons  interested  in  the  suit  .     .     .  428,  n. 

of  witness,  how  restored 430 

of  creditor,  as  witness 392 

of  defaulted  co-defendant 355-357 

of  corporator 430 

when  to  be  objected  (See  Witness) 421 

COMPLAINT,  recenti  facto,  not  hearsay 102 

of  rape,  admissible  though  not  recen^i/ac<o 102,  n. 

but  of  the  particulars,  qucere 102,  n. 

COMPROMISE,  offer  of,  not  an  admission  _ 192 

is  presumed  to  be  made  without  prejudice 192,  n. 

CONCUBINAGE,  not  provable  by  reputation 107,  n. 

CONDEMNATION,  as  prize 541 

CONFESSION  OF  GUILT,  difference  between  confessio  juris  and 

confessio  facti 96 

direct  and  indirect 213 

improperly  obtained,  admissible 193 

to  be  received  with  great  caution 214 

weight  of  for  jury _214 

may  be  supported  by  corroborative  evidence 215,  n. 

in  writing,  must  be  proved  by  writing 215,  n. 

to  clergymen  not  privileged      (See  Clergyman) 229,  247 

judicial,  conclusive -^o 

extrajudicial,  not  conclusive,  without  corroborating  proof    ....    217 

the  whole  to  be  taken  together 218 

the  confession  must  be  complete ^ 218,  n. 

and  witness  who  proves  it,  must  remember  substantially  the  whole   218,  n. 

must  be  voluntary 219,  220 

the  voluntariness  is  decided  by  the  court 219,  n. 

and  must  be  shown  by  the  prosecutor 219,  n. 


INDEX.  743 

CONFESSTOX   OF    QVJhT,—  Conllnued.  Section 

prisoner  may  t,nve  evidence  that  it  was  involuntary 219,  n. 

effect  of  iilirase  "  you  had  better,"  on  confession 220, 7i. 

effect  of  caution  or  advice  ou  confession 220,  n. 

of  promise  of  pardon 220,  n. 

of  threatening  conduct 220,  n. 

of  arrest 220,  n. 

influence  of  inducements  iireviously  offered  must  have  ceased  .      221,  222 

presumed  to  continue 221_,  h. 

after  inducement,  and  after  caution  from  the  court 257  n 

made  under  inducements  offered  by  officers  and  magistrates      .     .     .    222 

private  persons     .      .     .       193,  n.,  223 
generally  admissible  when  inducement  is  ottered  by  one  not  in 

authoi-ity 223  7i_. 

made  during  official  examination  by  magistrate 224-227 

form  of  examination  of  accused  before  a  magistrate  in  England   .   224,  n. 

answers  then  made,  admissible 224,  n. 

answers  of  one  not  under  arrest  but  strongly  suspected    ....  224,  n. 

answers  under  oath  not  admissible 224, 7i. 

-what  inducements  do  not  render  inadmissible •    229 

by  drunken  persons  admissible 229,  n. 

by  nun  comjxjs  admissible 2_9,  n. 

or  made  in  sleep 2l9,  »i. 

made  under  illegal  restraint,  whether  admissible 230,  n. 

when  property  discovered,  in  consequence  of     .   _ 231 

produced  by  person  confessing  guilt 232 

by  one  of  several  jointly  guilty 233 

by  agent -'^_ 

in  case  of  treason,  its  effect -'J^ 

CONFIDENTIAL  COMMUNICATION,  telegraphic  messages  not  .   249,  n. 

not  genei'ally  privileged,  unless  in  certain  cases 237,  248 

{See  EviDKNCK.     Pkivilkgkd  Communications.) 
CONFIRMATION,  of  testimony  of  accomplices,  when  required      .      380-382 

CONGRESS,  public  acts  of,  judicially  noticed 5,  n. 

CONSENT,  -when  implied  from  silence 197-199 

CONSIDERATION,  failure  of,  he  who  alleges  must  prove    .     .     .     •     •      ^^ 
whether  required  in  writing  under  Statute  of  Frauds      .     .     •     .^^^bH  n. 

■want  of,  provable  by  parol -°*'  ^Ij** 

for  specialty,  presumed ^^, 

when  the  recital  of  payment  of,  may  be  denied •     -^ 

-when  it  must  be  stated  and  proved oa-   ^aa 

when  a  further  consideration  may  be  proved -8o,  304 

CONSOLIDATION  RULE,  party  to,  incompetent  as  a  witness  ...  395 
CONSPIRACY,  conspirators  bound  by  each  other's  acts  and  declarations   111 

conspirators,  declarations  of  other l^f 

generally  not  competent  witnesses  for  each  other 40/ 

CONSPIRATOR,  flight  of  one,  no  evidence  against  another  ....  233 
CONSTABLE,  confessions  made  under  inducements  by,  inadmissible  .  222 
CONSTRUCTION,  when  for  court,  and  when  for  jury     .     .     .  49,  n.,  277^ n^ 

defined 'J' 

,        J?  28/,  n. 

rules  of ' 

CONTEMPT,  attachment  for -319 

may  be  issued  by  legislatures     ...  • qJr 

iu  arresting  a  witness,  or  preventing  his  attendance oio 


744  INDEX. 

Section 

CONTINUANCE,  presuniptiou  of -11 

of  ownership  of  property 41 ,  n. 

of  insanity ^l*  "• 

of  relations  of  parties 41,  n. 

of  residence  and  domicile 41,  n. 

CONTRACT,  when  presinned • 47 

is  an  entire  thing,  and  must  be  proved  as  laid 66 

what  is  matter  of  description  in 66-68 

parol  evidence  to  contradict  or  vary  {See  also  Pauol  Evidknck)  275-305 

reform '-QtJ  « 

apply  to  its  subject ,•     •    301 

prove  discharge  of 302,  304 

substitution 30-3,  304 

time  of  performance 304 

CONTRADICTORY  STATEMENTS,  when  proof  of,  admissible     .     .    462 

CONVEYANCE  of  legal  estate,  when  presumed 45,  ra.,  46 

CONVEYANCER,  communications  to,  privileged 241 

CONVICTION,  record  of,  is  the  only  proper  evidence  {See  Witnesses)  374,  375 

how  procured 4o7 

of  crime,  how  it  affects  witness 372,  372,  n. 

must  be  proved  by  judgment 375,  n. 

COPY,  proof  by,  when  allowed     .     .     .     .   91,  479-490,  513-520,  559,  571.^  n. 

office,  what  and  how  far  evidence _.    507 

by  machines,  admissible 558,  n. 

of  a  copy,  admissible  when 558,  n. 

examined      {See  Public  Records  and  Documents.     Records 

AND  Judicial  Whitings) 508 

COPIES,  who  may  give 485 

three  kinds  of 501 

may  be  used  to  refresh  recollection 438,  n. 

how  obtainable 4/1 

attested,  of  records,  proof  of o0<5 

examined,  of  records,  proof  of 508 

CORPORATIONS,  books  of •    ^^[^ 

their  several  kinds  and  natures 331-333 

shares  in,  are  personal  estate » 270 

CORPORATOR,  when  admissible  as  a  witness      {See  Witnesses)    831-333 
admissions  by • 175,  n. 

CORPUS  DELICTI,  confession  as  prooioi 217 

CORRESPONDENCE,  the  whole  read 201,  n. 

diplomatic,  admissibility  and  effect  of      {See  Letters) 491 

CORROBORATION,  of  accomplices 380-382 

of  answer  in  chancery 260 

in  perjury 2o7 

CORROBORATIVE  EVIDENCE,  what  it  is 381,  n. 

what  is  necessary  in  perjury 257,  n. 

COSTS,  liability  to,  renders  incompetent      {See  Witnesses)  .     .      401,  402 

CO-TRESPASSER,  when  admissible  as  a  witness    (See  Witnesses)  357,  359 

COUNSEL,  who  are      {See  Privileged  CoMxMUNications)     ....    239 
client's  communications  to,  privileged 240,  241 

COUNTERFEIT,  whether  provable  by  admission 97,  n. 

COUNTERPART,  whether  original  evidence _    •     •_•     Si,  n- 

if  any,  must  be  accounted  for,  before  secondary  evidence  is  admitted     558 


INDEX.  745 

Section 

COURTS,  judicially  notice  what  is  generally  known 6 

ecclesiiistical,  witnesses  in 2C()  a,  n. 

jurisdiction  of 518,  544,  545,  558 

of  inferior,  or  special,  not  presumed 38  a,  t?. 

proceetliug.s  in,  how  proved 510,518,550 

admiralty,  seals  of,  judicially  noticed 5,  179 

judgments  of 525,  541 

exchequer,  judgments  in 525,  5-11 

foreign,  judgments  in 510-540 

probate,  decrees  of,  when  conclusive 518,  550 

COVENANT,  effect  of  alterations  upon    (.See  ruiVATio  Writings)    504-508 

COVERTURE,       {See  Husband  and  Wife.) 

CREDIT  OF  WITNESSES  is  for  the  jury 10,  n. 

mode  of  impeaching 461-^69 

restoring 407 

collateral  facts  affecting 459 

matter  of  opinion 461,  n. 

CREDITOR,  when  competent  as  a  witness      (.See  Witnesses)     .     .     .    392 

CRIME,  how  far  one  is  proof  of  another 53 

burden  of  proof  of 74,  «.,  81,  81,  ?/. 

amount  of  proof  of,  necessary 13« 

amount  necessary  in  civil  cases ^'^,?'  '*' 

jointly  alleged,  must  be  jointly  proved 05,  ?j. 

variance  in  proof  of "''^>  '*• 

on  indif'tment  for,  judge  decides  the  law 49,  ?j. 

conviction  of,  affects  credibility  of  witness 372,  n. 

must  be  proved  by  judgment 375,  n. 

competency  of  husband  and  wife,  on  trial  of  the  other  for   .     .     .   334,  n. 

CRIMEN  FALSI,  what 373 

CRIMES,  what  render  incompetent       (See  Witnesses)  ....      373,  374 
CRIMINAL  CONVERSATION,  action  for,  letters  of  wife  to  a  hus- 
band admissible -^    •    10- 

wife  competent  to  prove 254,  n.,  337,  ?j.,  344 

CROSS-EXAMINATION,  of  parties 445,  n. 

of  witnesses 445-467 

as  to  contents  of  letters 88,  437,  n. 

and  facts  evidenced  by  writings 96,  n.,  404,  n. 

observations  on  proper  mode        (^ee  Witnesses) 446,  n. 

CURRENCY,  when  judicially  noticed 5,  n. 

CURTESY,  tenant  by,  a  competent  witness  for  the  heir 389 

CUSTODY,  proper  what 142 

CUSTOM,  how  proved 128-189 

by  what  witness 40o 

by  how  many  witnesses 2Q0a,7i. 

explains  lease _ -94 

of  law  merchant,  judicially  noticed 5»  "• 

but  local  mercantile  customs  not 5,  n. 

may  be  inferred  from  single  act 1-50'  "• 

how  far  provable  to  explain  writing 292-294 

CUSTOMARY,  right  of  common,  provable  by  reputation  128, 131,  137,  n.,  405 

(See  Hearsay.) 

CUSTOM-HOUSE  books,  inspection  of 475 

contents  of,  how  proved "1 


746  INDEX. 

D. 

Section 

DAMAGES,  proof  of,  right  to  begin 75 

when  unliquidated ^^ 

waiver  of,  parol  evidence is 

presumption  as  to  amount 48,  n. 

DATE,  when  material 65,  n.,  304,  n. 

of  witness's  birth,  he  may  give l^^j  "• 

DAY,  fractious  of,  presumption  as  to 40,  n. 

DEADLY  WEAPON,  presumption  from  use  of       • 18 

DEAF  AND  DUMB,  competent  witness 366 

DEATH,  when  presumed 29,  30,  35,  41 

e     e  .....     OOO 

proof  or .^    p._, 

letters  of  administration  as  proof  of 41,  oou 

DECEASED,  ABSENT,  INSANE,  OR  SICK  WITNESS,  testimony 

of,  at  former  trial,  when  admissible '^irq 

admits  testimony  of  a  party  to  suit jH  "• 

whether  admissible  in  civil  and  criminal  cases l0;5,  n. 

when  out  of  jurisdiction Trq' "* 

when  kept  away  by  opposite  party lo;J>  "• 

when  taken  in  writing,  may  be  proved  orally lo-3,  n. 

depends  on  cross-examination  in  previous  trial lol,  «• 

must  be  in  trial  between  same  parties •     •     '      ^p.'  "' 

and  must  be  substantially  proved  as  given  at  former  trial      .     .      16o,  n. 

may  be  proved  by  any  one  who  heard  it 166,  n. 

how  affected  by  interest  of  witness 167,  n. 

DECLARATIONS,  kinds  admissible  as  original  evidence       ....       123 

(lying  {See  Dyixg  Declarations)        ^^'^~\^J:'  It^ 

of  agents,  l)ind  principal,  when H'J)  ^^* 

of  deceased  attesting  witnesses,  rejected  why l"-6 

of  conspirators Ill 

in  disparagement  of  title 1J|^ 

as  to  domicile 1^° 

of  perambulators •       1*" 

of  family,  in  matter  of  pedigree 103,  104  a 

qualifying  acts.     .     .     •  ifo  I?? 

of  partners,  agents  and  third  persons hs-lh 

of  deceased  persons  to  prove  boundaries    (See  also  Boundaries)     145,  ?i. 

against  interest  (-See  Admissions) 147-155,  169-212 

and  replies  of  persons  referred  to ^   18'- 

of  husband  and  wife  against  each  other 345,  346 

by  interpreter,  provable  aliunde 183 

of  intestate  binding  upon  administrators 189 

of  owner  as  affecting  titles 10^)  109 

of  war,  admissibility  and  effect  of "191 

of  spectators  of  a  picture  as  to  its  meaning  not  hearsay     .     .     .       101,  n. 

aa  showing  intention        101,  n.,  108,  n^ 

as  res  gestie '^?aq 

whether  they  must  be  contemporaneous  with  some  act      ...      108,  n. 

as  to  medical  facts  and  state  of  declarant ^^^ino 

as  to  title  (See  a/so  Res  Gest^)      • 10^ 

under  oath |^^ 

as  to  pedigree    •     •      ■   .• Van    Ton 

of  former  owner  as  to  title -i°''»  ^^" 

DECREES,  of  probate  and  ecclesiastical  courts 5o0 


INDEX.  747 

Section 

DECREES  TN  CHANCERY,  proof  of 511 

thfir  admissibility  and  effect 550,  551 

DEED,  e.stoppel  by 22-24 

when  presumed 45,  n.,  40 

how  to  be  set  out  in  pleading 09 

cancellation  of,  when  it  divests  the  estate 205,  508 

number  of  witnesses  required  to 274 

delivery  of 508  a,  n. 

may  be  shown  by  parol  to  be  mortgages 284,  n. 

■what  is  matter  of  description  in 6S,  09 

enrolment  of 573,  n. 

estoppel  by 24,25,211 

execution  of 509,  572 

DEEDS,  ancient,  presumption  in  favor  of    ...     .       21,  143,  144,  504,  570 

prove  themselves 570 

(See  Documents.     Ancient  Writings.     Wkitings.) 

produced  by  adverse  party,  how  proved .     .     .     .       571 

the  holder,  how  proved 501 

•where  attesting  witness  is  not  to  be  had 572 

alterations  in 504,  n.,  500-508 

execution  of,  how  proved 509,  n. 

presumption  as  to  date  of •     .     .   38,  ?i. 

as  to  seal  of 38,  n. 

certified  copy  of,  proves  what 484,  n. 

registered  or  recorded  copy  when  admissible 9\,  n. 

proof  of  contents  of,  by  aclmission  of  party 90,  n. 

DEFAULT,  judgment  by,  its  effect  on  admissibility  of  the  party  as  a 

witness  for  co-defendants 355,  350,  357 

DEGREES,  in  secondary  evidence -     .    84,  ?i.,  582,  n. 

DELIVERY,  of  deed 508  a,  n. 

entry  in  shop-books,  evidence  of 118,  n. 

DE MON S TR A  TIO  FALSA,  ^^AroleYidenGe  to  correct 301 

DEINIURRER,  answer  and  plea  in  chancery,  effect  of 551 

DEPOSIT,  of  money,  to  restore  competency  of  a  witness 430 

DEPOSITIONS,  inferior  evidence _^   320 

of  witnesses  subsequently  interested,  whether  admissible       .     .    107,108 

residing  abroad,  when  and  how  taken 320 

distance  of  residence,  how  reckoned 322,  ?i. 

sick,  &c.       •.•■•. 220,321 

what  sickness  is  sufficient 322,  7i. 

in  general,  manner  of  taking 321-324 

certificate  of  magistrate  in 320,  n.,  323,  n. 

witness  generally  must  be  cross-examined      .     .     .      322,  n. 

in  perpetuum 324,  3_o,  oo- 

may  be  used  to  assist  memory .     .      430,  7i. 

taken  in  chancery,  how  proved,  to  be  read  at  law 552,  554 

foreign .■•■".■■■  " 

to   be  read  in  another  action,  complete  identity  of  parties   not^ 

requisite      ....  553,  554 

to  prove  custom,  prescription,  seisin,  &c .•■*.■■    ^'^'^ 

to  be  read  in  another  action,  power  of  cross-examination  requi- 
site      554 

when  admissible  against  strangers  (See  Witnesses) 555 

under  commission 517 

in  behalf  of  defendant  in  criminal  case 320,  n. 

and  verdict  to  prove  reputation  . _•    555 

use  of,  when  admission  of  facts  deposed  to 553,  n. 


748  INDEX. 

Section 

DESCRIPTION,  what  is  matter  of 56-72 

yields  to  name 30  L 

in  general 56-64 

in  criminal  cases 65 

in  contracts 66-68 

in  deeds 68,  69 

in  records 70 

in  prescription 71 

false  effect  of 301 

DESTRUCTION    AND  FABRICATION    OF    EVIDENCE,   pre- 
sumption from 37 

DEVISE,  must  be  in  writing * 272 

admissibility  of  parol  evidence  to  explain 287,  289-291 

DILIGENCE,  generally  question  for  jury 49,  n. 

DIPLOMA,  of  physician,  when  necessary  to  be  shown 195,  n. 

DISCHARGE,  in  bankruptcy,  restores  competency      .......    430 

of  written  contract,  by  parol 302-304 

DISCHARGE  ON  EXECUTION,  receipt,  variable  by  parol    ....    305 

DISCRETION  AND  CAPACITY,  presumed 28 

DISFRANCHISEMENT,  of  a  corporator,  to  render  him  a  competent 

witness 430 

DISPARAGEMENT  OF  TITLE,  declarations  in 109 

DIVORCE,  upon  confession  of  adultery  decreed 217 

competency  of  husband  and  wife  as  witness  in  proceedings  for      .  334.  n. 

foreign  sentence  of,  its  effect 544,  545 

decree  against,  as  evidence  of  facts  set  up  in  defence 525 

DOCUMENTS,  production  of,  how  secured 309 

produced  on  subpoena  duces 309 

how  described  in  subpoena 309,  n. 

presumption  as  to  date  of 38,  n. 

as  to  seal  of  .     . 38,  n. 

executed  in  duplicate  or  counterpart  are  primary  evidence  of  con- 
tents  84,  n. 

ancient,  contents  of,  proved  by  documents 84,  n. 

contents  of,  proved  by  the  writing  itself 84,  n. 

secondary  evidence,  when  admissible 84,  91-94 

proof  of  loss  of,  made  to  judge 84,  n. 

contents  of,  when  proved  by  admission 96,  n. 

ancient,  prove  themselves 141,  n. 

must  be  thirty  years  old 141,  n. 

age  at  trial  determines  admissibility 141,  n. 

are  admissible  without  proof  of  possession 143,  n. 

(See  al.fo  Ancient  Writings.     Writings.) 

DOMICILE,  declarations  as  to 108,  108,  n. 

DOUBT,  reasonable,  prisoner  has  benefit  of 223,  n. 

DOWER,  tenant  in,  a  competent  witness  for  heir 389 

DRIVER,  of  carriage,  when  incompetent  as  a  witness 396 

DRUNKENNESS,  confession  during 229 

DUCES  TECUM,  subpoena(S'ee  Private  Writings.    Witnesses)     414,  558 
DUPLICATE,  must  be  accounted  for,  before  secondary  proof  admitted    .    558 

notarial  instruments  and  deeds,  originals 97,  n. 

DURESS,  admissions  made  under 193 

DITTY,  performance  of,  presumed 227 


INDEX.  749 

Section 
DYING  DECLARATIONS,  when  admissible,  value  and  effect  of   15G-16-2.  M6 

admissible  only  in  cases  of  homicide 15G,  ». 

not  in  cases  of  abortion l->0,  n. 

admissibility  of,  is  for  judge I'JO,  n. 

must  be  relevant Ini],  n. 

must  be  definite 156,  n. 

must  be  uttered  after  loss  of  all  hope 158,  n. 

must  not  be  hearsay,  or  res  uiter  alios 159,  7i. 

nor  opinion 159,  n. 

but  may  be  in  answer  to  leading  questions 159,  «. 

or  in  form  of  deposition 159,  n. 

when  admitted  as  to  contemporaneous  homicides 15(J,  n. 

when  objectionable  from  incompetency  of  declarant  as  witness      .   157,  n. 

not  excluded  by  atheism  of  declarant 157,  «. 

as  to  subsequence  of  death 158,  n. 

when  taken  in  writing,  (/itaere  if  it  may  be  proved  orally     .     .     .  IGO,  n. 
impeachable  by  showing  unbelief  of  declarant  (See  Hearsay)     .   16"2,  7i. 

whether  admissible  in  civil  cases 156,  n. 

of  deceased  subscribing  witness  inadmissible  to  impeach  instru- 
ment witnessed 126,  156,  n. 


E. 

ECCLESIASTICAL   COURTS,  number  of  witnesses  required  in    260  a,  n. 

what  part  of  their  jurisdiction  known  here 518,  559 

proceedings  in,  how  proved,  &c •     .     .      510,  518 

their  effect 550 

EJECT^NIENT,  defendant  in,  when  a  competent  witness        360 

ENROLMENT,  of  deeds 573,  n. 

ENTRIES,  not  impeachable  by  proof  of  character  of  party       .     .     .     n9  iu 

by  steward '     '     "     ■      ^^"'  ^^'^ 

against  interest  and  in  the  course  of  duty  distinguished       .     .     .  115,  n. 

made  in  course  of  duty,  admitted  if  maker  is  dead 115,  n. 

in  registry  of  baptisms  admissible 115,?). 

in  party's  books  of  account,  admissible  to  prove  what     ....  117,  n. 

must  be  made  in  ordinary  course  of  business 117,  n. 

must  be  original  entries  and  not  copies 117,  n. 

minutes  and  records  as lib,  n. 

in  shop-books 117-119 

not  instruments 116,  n^ 

by  third  persons,  when  and  why  admissible        .     .  115-117,  120,  151-155 

by  deceased  rector ^^'^ 

by  deceased  attorney  prove  service  of  notice 116 

ENTRY,  forcible,  tenant  incompetent  witness  in 403 

EQUITY,  i)arol  evidence  to  rebut 296  a 

ERASURE       561-568  rt 

ESTOPPEL,  principle  and  nature  of 22,  23  n.,  201-210 

in  deeil  must  be  mutual 211,  n. 

by  written  instructions 276,  n. 

by  deed,  who  are  estopped,  and  in  what  cases 24,25,211 

as  to  what  recitals 26 

en  pais        -^'' 

ratification  by -"9 

by  admissions -' 

by  conduct   (See  Admissions) 27 


750  INDEX. 

Sectioh 

EVIDENCE,  nature  and  principles 1-3 

and  proof  distinguished 1 

demonstration,  what 1 

cumulative,  what 2 

sufficiency,  for  jury 2,  49,  n. 

competency,  for  court 2 

basis  of 7-12 

degrees  in  circumstantial 13  a 

definition 1 

moral,  what 1 

competent 2 

satisfactory  and  sufficient 2 

direct  and  circumstantial        13,  13,  n. 

presumptive,  {See  Presumption.) 

real 13  a,  n. 

relevancy  of 40-55. 

general  rules  governing  production  of 50 

must  correspond  with  the  allegations,  and  be  confined  to  the  issue     .      51 

of  knowledge  and  intention,  when  material 53 

how  far  necessity  modifies  rules  of 348,  n. 

six  practical  rules  concerning 584,  n. 

of  character,  when  material  to  the  issue 54,  55,  55,  n. 

proof  of  substance  of  issue  is  sufficient 56-73 

rules  of,  the  same  in  criminal  as  in  civil  cases 65 

meaning  of  "  weight  of  evidence  " 74,  n. 

the  best  is  always  required 82 

what  is  meant  by  best  evidence 82 

primary  and  secondary,  what 84 

secondar}',  whether  any  degrees  in 84,  n.,  582 

oral,   not  to  be  substituted  for  written,  where  the  law  requires 

writing 86 

oral  not  to  be  substituted  for  written  contract 87 

for  any  writing  material  to  the  contro- 
versy     88 

unless  collateral 89 

for  written  declaration  m  extremis      .     .     .161 

of  customs 128-139,  405 

of  deceased,  sick,  absent,  or  insane  witness 163-166 

{See  Deceased  Witness.) 

destruction,  fabrication,  and  spoliation  of,  presumptions  from       .     .      37 

notice  to  produce 561 

■when  may  be  called  for  on  notice 563 

order  of,  and  course  of  trial 469  a 

in  discretion  of  judges 52,  n. 

affirmative  more  weighty  than  negative 74,  n. 

voluntary  destruction  of  instruments  of,  effect  of 84,  n. 

of  absent,  deceased,  and  disqualified  witness 163,  n. 

order  of 469,  n. 

when  it  may  be  given,  though  a  writing  exists 90 

exceptions  to  the  rule  which  rejects  secondaiy  evidence  in,  — 

1.  case  of  public  records 91 

2.  official  appointments 92 

3.  result  of  voluminous  facts,  accounts,  &c.    ...      93 

4.  inscriptions  on  monuments,  &c 94,  105 

5.  examinations  on  the  voir  dire 95 

6.  some  cases  of  admission 96 

7.  witness  subsequently  interested,  his  former  depo- 

sition admissible 168 


INDEX.  751 

EVIDENCE,  —  Continued.  Bectiok 

excluded  from  public  policy,  what  and  when 236-254 

professional  communications      ....      237-248 

proceedings  of  arbitrators 249 

secrets  of  state 250,  251 

proceedings  of  grand  jurors 252 

indecent,   or   injurious    to   the    feelings   of 

others 253,  344 

communications  between  husband  and  wife, 

254,  334-345 

illegally  obtained,  still  admissible 254,  a 

what  amount  necessary  to  establish  a  charge  of  treason  .     .     .      255,  256 

perjury 2.57 

to  overthrow  an  answer  in  ciiancery     .     .      .    260 

in  ecclesiastical  courts 200  a,  n. 

written,  when  requisite  by  the  Statute  of  Frauds 201-274 

instruments  of 307 

oral,  what 3(»8 

not  admissible  to  contradict  or  vary  a  writing 275-305 

(5ee  also  Parol  Evidence.) 

viva  voce  best 320,  n. 

corroborative,  what 381,  n. 

objection  to  competency  of,  when  to  be  taken 421 

examined  copy     {See  Phivilkged  Communications) 508 

EXAMINATION,  of  prisoner,  how  proved 520 

of  prisoner,  confessions  in 224 

certificate  of,  how  far  conclusive 227 

on  criminal  charge,  when  admissible 224,  227,  228 

signature  of  prisoner  unnecessary 228 

of  witness,  (See  Witness.) 

EXAMINATION   IN   BANKRUPTCY,  not  admissible  against  the 

bankrupt  on  a  criminal  charge 226 

exclusion  of  witness  while  others  are  being  examined     ....  432,  n. 

EXCHEQUER,  judgments  in,  when  conclusive 525,  541 

EXCLAMATIONS,  in  mortal  terror  admissible  upon  the  same  ground 

as  dying  declarations 156,  n. 

evidence  not  hearsay 102 

of  pain,  alarm,  pleasure,  original  evidence 102,  n. 

must  be  of  present  feeling 102,  n. 

EXCLUSION,  of  witnesses  from  court  room        432 

in  discretion  of  judge 432,  432,  n. 

party  will  not  be  excluded 432,  n. 

EXECUTION,  of  deed,  &c.,  proof  of 569,  572 

of  ancient  deeds  not  necessary 141,  n 

(^ee  Documents.     Ancient  Writings.     Private  Writings.) 

EXECUTIVE,  acts  of,  how  proved 479 

EXECUTOR,  admissions  by 179 

foreign 544 

sales  by,  presumed  regular 20 

EXEMPLIFICATION,  what  and  how  obtained 501 

EXPENSES   OF   WITNESSES,    (See  Witnesses.) 

EXPERIENCE,  as  ground  of  belief 8-12 

EXPERTS,  will  be  required  to  attend,  when 319 

who  are 440,  n. 

comparative  value  of  their  evidence 10,  ». 


752  INDEX. 

EXPERTS,  —  Continued.  Section 

wlieu  their  testimony  is  admissible  to  decipher  writings 280 

to  explain  terms  of  art    ....    280 
to  explain  provincialisms,  &c.      .    280 

to  what  matters  they  may  give  opinions 440,  576,  580,  n. 

entitled  to  pay  before  testifying 310,  n. 

testimony  of,  in  comparison  of  handwriting 580,  w. 

EXPRESSION'S,  of  bodily  or  mental  feslings  not  hearsay 102 

EXTRADITION,  proof  by  deposition  in  .     , 552,  n. 


F. 

FABRICATION,  and  destruction  of  evidence,  presumption  from   .     .     37,  n. 

FACT,  presumption  of 44 

FACTOR,  (See  Agent.) 

FALSE   PRETENCE,  one  may  be  proof  of   fraudulent  intent  in  an- 
other         53 

FALSUS  IN   UNO,   FALSUS  IN  OMNIBUS,   meaning  of  the 

maxim    • 461,  n. 

FAMILY,  recognition  by,  in  proof  of  pedigree  ,..'...  103,  104,  134 
(See  Hearsay.     Pedigree.) 

FEES  of  witnesses,  how  taxed 310,  310,  n. 

of  experts 310,  n 

FELONY,  conviction  of,  incapacitates  witness  (See  Witnesses)      .     .    373 

FIXTURES,  what  are 271 

FLAGS  of  other  nations  judicially  noticed -     .     .     .     .        4 

FLEET  BOOKS,  contents  provable  by  copy 91 

FLIGHT  of  one  accomplice  no  evidence  of  guilt  of  another  ....   Ill,  n. 

FORCIBLE  ENTRY,  tenant  incompetent  as  a  witness  (^ee  Witnesses)   403 

FORCIBLE  MARRIAGE,  wife  competent  to  prove 343 

FOREIGN  COURTS,  judgments  in,  effect  of 540-546 

proof  of 514 

jurisdiction  of,  must  be  shown 540,  541 

FOREIGN  JUDGMENTS  of  infamy  do  not  go  to  the  competency    .     .    376 

proof  of 514 

in  rem,  effect  of .     ,      543-545 

in  personam 545-540 

at  common  law      (See  Records  and  Judicial  Writings)   .     .     .    549 

FOREIGN  LAWS  are  not  judicially  noticed 5,  ?i. 

presumptions  as  to 43,  n. 

proof  of       (See  Public  Records  and  Documents)     .     .     .     483,  488 

FOREIGN  STATES,  (See  Judicial  Notice.  Presumptions. 
Public  Records  and  Documents.  Records  and  Judi- 
cial Writings.) 

FORGERY,  conviction  of,  incapacitates  witness      ......      373,  374 

party  whose  name  is  forged,  when  competent 414 

(See  Private  Writings.) 

FORMER  RECOVERY,  whether  conclusive  as  evidence 531 

in  tort,  effect  of 533 

FRAUD,  general  presumption  against 34,  35,  80 

parol  proof  of 284 

one  may  be  proof  of  another 53 

accident  and  mistake,  parol  evidence  to  prove  (See  Presumptions)  296  a 

FRAUDS,  Statute  of     (See  Writings) 262-274 


INDEX.  768 

G. 

Sectios 
GAME  LAWS,  want  of  qualifications  under,  must  be  proved  by  affirmant  78 
GAZETTE,  GOVERNMENT,  in  what  cases  admissible  (See  Public 

Recokds  and  Documknts) 492 

GENERAL  REPUTATION,  original  evidence 101,  101,  n. 

GESTURES,  evidence  of  feelings 102 

GOODS,  what  are,  under  Statute  of  Frauds 271 

GOVERNMENT,  new,  existence  of,  how  proved 4 

acts  of ,  how  proved 383,478,491,492 

(See  Public  Records  and  Documents.) 
GOVERNOR  of  a  state  or  province,  when  not  bound  to  testify      .     .     .    251 

provincial,  communications  from,  privileged 251 

(See  Privileged  Communications.) 

GRAND  BILL  OF  SALE,  requisites  on  sale  of  ship 261 

GRAND  JURY,  transactions  before,  how  far  privileged  - 252 

(See  Privileged  Communications) 

GRANT,  when  presumed    .     . 45,  45,  ??.,  46 

conclusively 17 

GRAVESTONES,  inscriptions  on 94 

(iROANS,  evidence  of  feelings 102 

GUARDIAN,  admission  by,  binds  himself  only 179 

GUILTY  POSSESSION,  evidence  of 34,  35 


H. 

KABEkS  COnVVS,  ad  testificandum      (5e«?  Witnesses) 312 

HANDWRITING,  proof  of  genuineness  of 96,  «. 

attorney  competent  to  prove  client's  writings 242 

proof  of,  in  general      (See  Private  Writings) 576-581 

HEALTH,  proof  of,  by  opinion 440,  h 

HEARSAY,  admissible  on  preliminary  questions  for  the  court  ...     99,  n. 

what  IS 99,  100 

statements  of  party  in  his  own  favor  out  of  court  are      ....     99,  n. 
what  is  not  hearsay 

information,  upon  which  one  has  acted 101 

conversation  of  one  whose  sanity  is  questioned      .     .     .    101 
answers  given  to  inquiries  for  information   .     .     .      101,  574 

date  of  witness's  birth 104,  ?;. 

general  reputation 101,  101,  ». 

expressions  of  bodily  or  mental  feelings 102 

must  express  a  present  feeling •     •   102,  n. 

complaints  of  injury,  recenti  facto 102 

recent  limitation  of  rule 102,  ?!. 

declarations  of  family  as  to   pedigree      (See  also 

Pedigree) 103,  103,  n,  104,  104  a,  134 

inscriptions •    105 

declarations  accompanying  and  qualifying  an  act  done  108, 109 

in  disparagement  of  title 109 

of  other  conspirators .Ill 

of  partners H- 

of  agents ■     •     •      113.114 

of  agents  and  employees  of  corporations  .     .     .     114  a 

VOL.  I.  —  48 


754  INDEX. 

• 

HEARSAY,  —  Continued.  Section 

entries  by  third  persons 115-117,  120 

indorsements  of  partial  payment 121,  122 

in  an  admission 202,  n. 

in  an  answer  in  Chancery • 202,  n. 

•when  and  on  -what  principle  hearsay  is  rejected 124,  125 

■when  admissible  by  way  of  exception  to  the  rule,  — 

1.  in  matters  of  public  and  general  interest  .  .  '  .  128-140 
restricted  to  declarations  of  persons  since  dead  .  .  .  loO 
and  concerning  ancient  rights 130 

ante  litem  motam      ....       131-134 

situation  of  the  declarant 135 

why  rejected  as  to  private  rights '  137 

particular  facts 138 

includes  writings  as  well  as  oral  declarations  .  .  .139 
admissible  also  against  public  rights 140 

2.  in  matters  of  ancient  possessions 141-146 

boundaries,  when 145,  n. 

perambulations 146 

3.  declarations  against  interest 147-155 

books  of  bailiffs  and  receivers 150 

private  persons     .     - 150 

the  rule  includes  all  the  facts  related  in  the  entry  .  .  152 
the  party  must  have  been  a  competent  witness  .  .  .  153 
in  entries  by  agents,  agency  must  be  proved  .  .  .  154 
books  of  deceased  rectors,  &c 155 

4.  dying  declarations     . 156-162 

principle  of  admission 156-158 

declarant  must  have  been  competent  to  testify  .  .  .  159 
circumstances  must  be  shown  to  the  court     ....    160 

if  written,  writing  must  be  produced 161 

■weakness  of  this  evidence 162 

substance  of  the  declarations 161  « 

answers  by  signs 161  b 

of  husband  or  wife,  when  admissible  against  the 

other   {See  also  Dying  Declarations)     .     .      345,  346 

5     testimony  of  witnesses  since  deceased  ....      163-166 

whether  extended  to  case  of  witness  sick  or  abroad  .  163,  n. 

must  have  been  a  right  to  cross-examine 164 

the  precise  words  need  not  be  proved 165 

may  be  proved  by  any  competent  witness 166 

witness  subsequently  interested 167,  168 

declarations  and  replies  of  persons  referred  to  admissible  182 

declarations  and  replies  of  interpreters 183 

HE  ,\THEN  not  incompetent  as  a  witness,  and  how  sworn 371 

HEIR,  apparent,  a  competent  witness  for  ancestor 390 

when  competent  as  witness 392 

HERALD'S  BOOKS,  when  admissible 105,  n. 

HIGHWAY,  judgment  for  non-repair  of,  when  admissible  in  favor  of 

other  defendants 534 

HISTORY,  local,  not  admissible 6  n,  n. 

public,  when  admissible 6  a,  n.,  440,  n.,  497 

HOMICIDE,  when  malice  presumed  from 34 

HONORARY  OBLIGATION  does  not  incapacitate  witness    ....    388 

HOUSJii,       (See  Legislature.) 

HUSBAND  AND  WIFE,  declarations  of,  when  admissible  against 

each  other 345,  346 


INDEX.  755 

HUSBAND   AND  WIFE,  —  Continued.  Section 

each  competent  against  the  other  for  self-protection 1543 

incompetent  as  to  non-access 28,  L'53 

intercourse  between,  when  presumed 28 

coercion  of  wife  by  husband,  wlien  presumed 28,  28,  n. 

as  to  her  torts  as  against  husband 28,  n. 

as  to  her  separate  estate 28,  n. 

admissions  by  wife,  when  good  against  husband 185 

not  without  proof  of  agency  or  ratification 185,  n. 

comnmnications  inter  .se.se  privileged 254,  i334 

{See  Pkivileged  Communications.) 

no  matter  when  the  relation  began  or  ended 336 

competency  of,  as  witness 334,  n. 

competency  of,  as  affected  by  statute 334,  n. 

competent  except  m  criminal  cases      .     • 334,  n. 

or  proceedings  based  on  adultery  of  either 334,  n. 

as  to,  in  proceedings  for  divorce 334,  n. 

wife  competent  witness  after  husband's  death,  when 338 

none  but  lawful  wife  incompetent  as  witness     ........    339 

whether  husband's  consent  removes  incompetency 340 

rule  applies  when  husband  is  interested 341,  407 

competent  witness  in  collateral  ])roceedings 342 

exceptions  to  the  rule  in  favor  of  wife 343,  344 

rule  extends  to  cases  of  treason,  semb 315 

wife  not  competent  witness  for  joint  conspii'ators  with  her  husband  .    407 

articles  of  peace  between 343 

when  competent  witnesses  for  or  against  another   .    334.  344,  363,  381,  n. 


IDENTITY,  of  name,  evidence  of  identity  of  person  .     .   38,  38,  n.,  512,  575 

proof  of,  when  requisite 381,  493,  575,  577 

by  attorney 245 

IDIOT,  incompetent  as  a  witness 365 

statutes  concerning 365,  n. 

competency  of,  as  witness,  is  decided  by  judge 365,  n. 

ILLEGALITY  OF  CONTRACT,  provable  by  parol 284,  .304 

IMPEACHMENT  of  witness .      461-469 

of  security  by  maker  or  indorser 383-385 

IMPRISONMENT,  jonma/acie  tortious 80,  n. 

INACCURACIES,  distinguished  from  ambiguities 299 

INCIDENTS,  parol  evidence  to  annul 294 

INCOMPETENCY,       (i>e  Witnesses.) 

INCORPOREAL  RIGHTS,  how  effected  by  destruction  of  deeds  .     265,  568 

INDEMNITY,  when  it  restores  competency 420 

INDICTMENT,  inspection  and  copy  of,  right  to      ........    471 

what  is  matter  of  description  iii  .     . 65 

INDIRECT  EVIDENCE 13  a,  n.,  48,  n. 

INDORSEE,  how  affected  by  admissions  of  indorser  (5ee  Admissions)    .    190 
INDORSEMENT,  presumed  to  be  of  its  date     .     .     .  ' 121 

of  part  payment  on  a  bond  or  not>e 121,  122 

not  explicable  by  parol 276,  n. 

INDORSER  not  competent  to  impeach  indorsed  instrument      .     .     -  385.  n. 

when  a  competent  witness     {See  Witnesses) 190,  383,  385 


756  INDEX. 

Section 

INDUCEMENT,  what,  and  when  it  must  be  proved 63,  n. 

to  confession    (.See  aho  Confession) 220 

INFAMOUS  PERSONS,  who  are 375 

INFAMY  by  foreign  judgment  does  not  disqualify 376 

renders  a  witness  incompetent 372-375 

but  now  by  statute,  affects  credibility 372,  n. 

must  be  proved  by  judgment 375,  n. 

how  removed 37/,  oif^b 

cross-examination  to  show       {See  Witnesses) 451,  4o7 

INFANCY,  proof  of,  rests  on  the  party  asserting  it 81 

when  it  disqualifies  a  witness 365,  n. 

is  decided  by  the  judge      {See  Onus  Probandi) 365,  n. 

INFERENTIAL  EVIDENCE 13  a,  n.,  48,  n. 

INFERIOR  COURTS,  inspection  of  their  records 473 

proof  of  their  records  {See  Public  Records  and  Documents. 

Records  and  Judicial  Writings) 513 

INFIDEL  incompetent  as  witness     (See  Witnesses)      ....      368-372 

INFIDELITY  OF  WITNESS,  how  proved 370,  n. 

INFORMER,  competency  of,  as  a  witness 412-415 

question  who  is,  not  allowable     {See  Witnesses) 250,  n. 

INHABITANT,  admissions  by 1/5 

when  competent  as  a  witness 331 

rated  and  ratable  distinguished 331,  n. 

INNOCENCE,  presumed •     •     .  34,  35,  35,  n. 

except  in  cases  of  libel,  &c _  .     •    _ ^36 

presumption  of,  prevails  over  presumption  of  life 35,  n. 

{See  Presumptions.) 

INQUISITIONS,  post  mortem,  proof  of 515 

admissibility  and  effect  of 556 

of  lunacy • 556 

extra-judicial  inadmissible 556 

INSANE  PERSON,  when  competent  witness 365,  365,  n. 

testimony  of,  at  former  trial,  when  admissible 163 

{See  Deceased  AVitness.) 

INSANITY,  must  be  proved  by  party  alleging 81 

burden  of  proof  of ,  in  criminal  cases 81,  n. 

in  probate  of  wills 81,  w. 

in  civil  actions 81,  7i. 

non-experts  may  testify  as  to .•;"■■  ^'^'^'  ^^' 

presumed  to  continue  after  being  once  proved  to  exist  {See  Lunacy)      42 

INSCRIPTIONS,  not  hearsay 105 

pi'ovable  by  secondary  evidence 90,  94,  105 

INSOLVENT,  omission  of  a  claim  by,  in  schedule  of  debts  due  to  him  .    196 

(h'ee  Admissions.) 

INSPECTION,  of  public  records  and  documents 471-478 

{See  Public  Records  and  Documents.) 

of  private  writings 5o9-oo2 

of  corporation  books *' * 

of  books  of  public  officers  {See  Private  Writings)      •     •     •     475,  476 

INSTRUCTIONS,  to  counsel,  privileged 240,  241 

{See  Privileged  Communications.) 

INSTRUMENTS,  entries  in  book  not 116,  "• 

original,  what  are 84,  n. 


INDEX.  757 

Section 
INTENT,  when  presumed 14 

and  knowledge,  when  material 53 

provable  from  other  similar  acta 61a,  n.,  53 

or  by  direct  testimony 51  a,  n, 

or  by  declarations  part  of  ?'e,v  (/e.s/cB        .  101,  n. 

and  meaning,  provable  by  opinion 440,  n. 

INTEREST,  in  land,  what 270,  271 

disqualifying 329-364,  38G-411 

of  witness,  effect  of,  when  subsequently  acquired   .     .     .     .167,  418-420 

subsequent,  does  not  exclude  his  previous  deposition  in  chancery      .    168 

whether  it  does  at  law      {See  Witnesses)        .     .     .     .168 

INTERLINEATIONS,  erasures,  and  alterations 5G4-568  a 

INTERNATIONAL  COMITY,  presumed 43 

INTERPRETATION,  rules  of 278,  287,  n.,  514,  n. 

defined 277 

whether  for  court  or  jury 49,  n.,  277,  7i. 

INTERPRETER,  will  be  required  to  attend,  when      ......  319,  n. 

his  declarations,  when  provable  aliunde 183 

communications  through,  when  privileged 239 

may  give  dying  declarations 161  a,  n. 

admissions  by 183 

INTESTATE,  his  declarations  admissible  against  his  administrator    .     .    189 

(See  Admissions.) 

INTOXICATION,  confession  during 229,  n. 

ISSUE,  pi-oof  of,  on  whom,      (See  Onus  Probandi.) 

what  is  sufficient  proof  of 56-73 

identity  of     (See  Allegations.     Variance) 532 


J. 

JEW,  how  to  be  sworn 371 

JOINT   OBLIGOR,  acknowledgment  by 112 

competency  of 395 

JOURNALS,  of  legislature,  how  proved 482 

admissibility  and  effect  of 491 

JUDGE,  his  province 49,  49,  n.,  160,  219,  277,  n.,  365,  n. 

instructions  of,  as  to  credibility  of  witness 10,  n. 

or  weight  of  evidence 49,  n. 

or  law  in  criminal  cases 49,  n. 

when  incompetent  as  a  witness 166,  249,  n.,  364 

his  notes,  when  admissible 166,  168,  n. 

may  resort  to  history,  records,  &c.,  when 6 

may  ask  questions  at  his  discretion 434,  n. 

JUDGMENT,  former,  when  provable 531 

effect  of 531-534 

in  criminal,  not  admissible  in  civil  cases 537 

in  admiralty,  how  far  conclusive 525,  541 

by  default  against  co-defendant 355-357 

foreign,  of  divorce 544,  545 

of  Court  of  Exchequer 525,541 

ii  rem,  effect  of 543-545 

JUDGMENTS,  of  inferior  courts,  how  proved 513 

in  trespass,  when  bar  in  trover 533 

as  admissions 513 


758  INDEX. 

JUDGMENTS,  —  Continued.  Section 

grounds  of  conclusiveness  of 528 

upon  what  parties  and  facts  binding 522-531 

who  are  parties  and  privies  to 535,  536 

as  facts,  always  provable  by  the  record 538,  539 

against  joint  and  several  contractors 539  a 

foreign,  in  rem  and  in  personam 540,  541,  54(3 

in  trustee  process 542 

171  rem,  how  far  conclusive 543 

affecting  personal  status 544 

JUDICIAL  NOTICE,  of  what  things  taken 4,  6  a,  479 

of  boundary ,6a 

JUDICIAL  PROCEEDINGS,  presumption  in  favor  of 19,  227 

(See  Records  and  Judicial  Writings.) 

JURISDICTION,  of  foreign  courts  must  be  shown 540,  541 

of  inferior  courts,  not  presumed 38  a,  ?i. 

JURORS,  sole  judges  of  credibility  of  witness 10,  n.  13,  n. 

when  advised  by  court 13,  n.,  45-48,  49,  49,  n. 

their  province 44,  49,  49,  n.,  160,  219,  277,  n.,  365,  ti. 

their  competency  as  witnesses 252,  252  a,  363,  n.,  364,  n. 

grand,  proceedings  not  to  be  disclosed 252 

evidence  before,  when  provable 252,  n. 

traverse  jurors,  not  competent  witnesses 252  a,  n. 


K. 

KINDRED,  (See  Family.     Hearsay.     Pedigree.) 

KNOWLEDGE,  proof  by  .common  repute 138,  n. 

by  similar  acts 51  a,  n. 

and  intent,  when  material 53 

notoriety,  evidence  of 138 


L. 

LANDLORD,  title  of,  tenant  cannot  deny 25 

LANDS,  meaning  of,  in  Statute  of  Frauds 270 

LANGUAGE,  how  to  be  understood 278 

what  it  is,  who  to  determine 288  b 

LAPSE   OF   TIME,  not  conclusive  bar  to  title 45 

LARCENY,  presumption  of,  from  possession,  when 11,  34 

(See  Presumptions.     Guilty  Possession.) 

LAW,  questions  for  court,  and  not  for  jury 49,  n. 

LAW    AND   FACT,  questions  of 49 

presumptions  of 14 

LAWFULNESS,  of  acts,  when  presumed 34 

LAW  MERCHANT,  and  its  customs  judically  noticed 5,  7i. 

LAWS,  judicially  noticed,  when 5,  5,  n.,  6 

of  other  states,  when  judicially  noticed  in  state  or  federal  courts  .     .  5,  n. 
LEADING   QUESTIONS,  what,  and  when  permitted     .     .     .  434,  435,  447 

(See  Witnesses.) 
LEASE,  when  it  must  be  by  writing 263,  264 

expounded  by  local  custom,  when 294 


INDEX.  759 

Section 
LEGAL  ESTATE,  conveyance  of,  when  presumed 46 

LEGATEE,  when  competent  as  a  witness 392 

LEGISLATURE,  public  acts  of,  judicially  noticed 5,  n. 

may  punish  witness  for  contempt 309,  n. 

journals  of,  how  proved 482 

admissibility  and  effect  of 491 . 

transactions  of,  how  proved 480-482 

(See  Public  Rkcords  and  Documents.) 
proceedings  in,  how  far  privileged  from  disclosure 251,  n. 

LEGITIMACY,  when  presumed 28,  28,  «.,  291,  n. 

not  conclusively  presumed 28,  n. 

presumption  of,  how  rebutted 81 

mother's  declaration  in  disparagement  of 103,  n. 

LESSEE,  identity  of,  with  lessor,  as  party  to  suit 535 

LESSOR,  of  plaintiff  in  ejectment,  regarded  as  the  real  party  ....    535 

LETTERS,  if  duly  mailed  and  addressed,  are  prima  facie  received      .     40,  n. 

so  if  marked  to  be  returned 40,  n. 

post-marks  on 40 

parol  evidence  of  contents  of .    87,  88 

may  be  explained  by  replies,  or  by  parol 197,  n. 

admission  of  truth  of  statements  in,  by  silence 198,  198,  n. 

how  used  in  cross-examination 465 

proof  of,  by  letter-book 116 

cross-examination  as  to 88,  89,  463-466 

addressed  to  one  alleged  to  be  insane 101 

written  by  one  conspirator,  evidence  against  others Ill 

of  wife  to  husband,  when  admissible 102 

whole  correspondence,  when  it  may  be  read 201,  n. 

prior  letters,  by  whom  they  must  be  produced 201,  n. 

of  public  agent  abroad,  admissibility  and  effect  of 491 

of  colonial  governor 491 

(See  Evidence.     Hearsay.     Parol  Evidence.     Witnesses.) 

LETTERS   OF   ADMINISTRATION,  how  proved 519 

as  proof  of  death 41,  550 

LETTERS   ROGATORY,  what 320 

LIABILITY   OVER,  its  effect  on  competency  of  witness      .     .     .      393-397 

(See  Witnesses.) 

LIBEL,  published  by  agent  or  servant,  liability  of  principal  for     .     .  36.  234 
puts  character  in  issue 55,  n. 

LICENSE,  must  be  shown  by  the  party  claiming  its  protection    79,  79,  n.,  81 
what  is  evidence  of 79,  n. 

LIFE    AND   DEATH,  presumptions  of 41 

when  presumption  of  life  conflicts  with  innocence 35,  n. 

LIMITATIONS,  joint  debtor,  acknowledgment 112,  n.,  121,  n. 

entry  in  shop-books,  admission 174,  n.,  212,  n. 

i/5  3/(9 r.l,  what,  and  its  effect 104,  n.,  131-1.34 

LLOYD'S   LIST,  how  far  admissible  against  underwrites 198 

LOCAL   CUSTOM,  explains  leases 294 

LOG-BOOK,  how  far  admissible 495 

LOSS,  adjustment  of,  when  conclusive 212 

LOST  RECORDS  AND  WRITINGS,  proof  of  contents  of  86,  509,  n..  .558.  n. 
private  writings,  proof  of 84,  n.,  5-37,  558 


7U0  INDEX. 

LOST  RECORDS  AND  WRITINGS,  —  Continued.  Section 

records 84,  n.,  508 

(See  Evidence.     Private  Writings.     Records  and  Judicial 
Writings.) 

LUNACY,  when  presumed  to  continue 42 

luquisitioa  of,  its  admissibility  and  effect 55G 


M. 

MAGISTRATE,  confessions  made  to 216,  222,  224,  227 

MAGNITUDE,  and  number,  how  far  material  {See  Confession  of  Guilt)     61 

MALICE,  when  presumed 18,  18,  n.,  34 

when  necessary  to  be  proved 18,  n. 

MALICIOUS   PROSECUTION,  puts  character  in  issue,  when      .     .     55,  n. 
testimony  of  defendant  given  before  grand  jury,  admissible  in      .     .    352 

judgment  of  acquittal,  when  admissible  in 5o8 

copy  of  judgment  of  acquittal,  whether  plaintiff  entitled  to      .     .     .   471 

MALICIOUS    SHOOTING,  wife  competent  to  prove 343 

MAPS  AND  SURVEYS,  when  evidence   139, 145,  ».,  189,  n.,  285,  n.,  484,  «. 

MARK,  signing  by , 272,  572 

MARKS,  surveys,  boundary 94 

MARRIAGE,  whether  provable  by  reputation 107 

by  town  clerk's  record ,     .     .  115,  7i. 

forcible,  wife  admissible  to  prove 343 

second,  in  case  of  polygamy,  by  whom  proved 339 

and  time  of  nicluded  in  pedigree     . 104 

when  presumed,  from  cohabitation 27,  207 

foreign  sentences  as  to,  effect  of , 544,  545 

proof  of 342,  343,  484,  493 

{See  Husband  and  Wife.     Public  Records  and  Documents. 
Records  and  Judicial  Writings.) 
MARRIED   WOMAN,  (See  Wife.) 

MASTER,  when  liable  for  crime  of  servant 234,  n. 

when  servant  witness  for 416 

when  not 396 

MEANING    AND     INTENT,  provable  by  opinion 440,  n. 

MEDICAL   WITNESS,  not  privileged 248 

may  testify  to  opinions,  when 440 

when  not 441 

MEMORANDUM,  to  refresh  memory  of  witness 436-439 

(See  Witnesses.) 

MEMORY,  refreshed  by  writing 436-439 

writing  so  used  need  not  be  original 436 

nor  made  by  witness 438 

writing  is  not  itself  evidence 437 

unless  adopted  by  other  party 437,  437,  n. 

essentials  of  writing  so  used .      430-438 

mercantile  customs,  judicially  noticed 5,  n. 

MIND,  state  of,  presumed  to  continue 42,  370 

MINUTES,  of  recording  officer,  unextended,  provable  by  parol      .     .     86,  n. 

of  proceedings  at  corporation  meeting      .     .     • 115,  n. 

MISJOINDER   OF   PARTIES,  effect  on  competency 358 


INDEX.  761 

Section 

MISTAKE,  accident,  and  fraud,  parol  evidence  to  correct 2'Jii 

admissions  by,  effect  of ^'JOG 

of  law  apparent  in  a  foreign  judgment,  effect  of 547,  /*. 

MIXED   QUESTIONS,  of  law  and  fact     (See  Juuous) 40 

MONOMANIAC,  whether  competent  as  witness 365 

MONTH,  meaning  of,  when  for  court,  when  for  jury 49,  >/. 

MONUMENTS,  niscriptions  on 94 

MORAL   CERTAINTY,  meaning  of,  in  criminal  cases     ....      13  a,  n. 

motive;  how  proved 53,  n. 

MUNICIPAL   CORPORATION,  acts  of  incorporation  of,  are  public, 

and  are  judicially  noticed 5,  n. 

books 493 

MURDER,  when  malice  presumed 18 


N. 

NAME,  prevails  over  description 301 

identity  of,  is  identity  of  person 38,  512,  575 

NAVY   OFFICE,  books  of 493 

{See  Public  Records  and  Documents.) 

NECESSARIES,  how  proved IIG,  n. 

NEGATIVE,  when  and  by  whom  to  be  proved 74,  7i.,  78-81 

{See  Onus  Puobandi.) 

NEGLIGENCE,  proof  of  burden  on  him  who  alleges 81 

NEGLIGENCE    AND   CARE,  generally  question  for  jury  .     .     .     .     49,  n. 

proof  of 49,  n. 

what  is  evidence  of 49,  n. 

by  collateral  similar  acts 51  a,  n. 

must  be  defined  by  judge  to  jury 49,  n. 

NEGOTIABLE   INSTRUMENT,  unimpeachable  by  party  to  .     .      383-385 

NEUTRALITY  OF  SHIP,  when  presumed 31 

NEW   PROMISE,  by  one  partner  binding  upon  the  other      112,  n.,  117.  189, 

207,  527  a 

limitations 112,  n. 

NOLLE   PROSEQUI,  eSectoi,  to  restore  competency   ....      356,303 

{See  Witnesses.) 
NON-ACCESS,  husband  and  wife,  when  incompetent  to  prove      .     .  28,  253 

NON-PAYjNIENT,  twenty  years,  presumption  from QQ 

NOTARIES,  seals  of,  judicially  noticed 5 

NOTES,  brokers',  bought  and  sold,  whether  original  evidence    ,     .     .     97,  n. 
NOTICE,  judicial,  what  within -4-6 

notoriety,  evidence  of 138 

to  produce  writings     {See  Private  Writings) 560-563 

NOTICE   TO    QUIT,  service  of ,  how  proved 116 

NOTORIETY,  when  evidence  of  the  existence  of  a  lease     ....  491,  n. 

general,  when  evidence  of  notice 138 

whether  noticeable  by  a  judge 364 

NULLUM  TEMPUS   OCCURRIT  REGI,  when  overthrown  by 

presumption      ..." 45 

NUL    TIEL  RECORD,  plea  of,  how  tried 502 


762  INDEX. 

Section 
NUMBER  AND  MAGNITUDE,  when  material 61 

NUMBER   OF   WITNESSES,  (See  Answer.    Perjury.     Statute 
OF  Frauds.     Treason.     Usage.     Wills.) 


O. 

OATH,  affirmation  substituted  for 371 

its  nature 328 

in  lilem,  when  admissible 348-350,  352,  558 

how  administered     . 371 

OBLIGATION,  legal  and  moral,  not  provable  by  opinion  of  witness  .     .   441 
OBLIGEE,  release  by  one  of  several  binds  all     (See  Witnesses)     .     .   427 

OBLIGOR,  competency  of  joint 395 

release  to  one  of  several  discharges  all     (See  Witnesses)  ....   427 
OFFER   OF   COMPROMISE     (See  Compromise) 

OFFICE,  appointment  to,  when  presumed      . 83,  92 

OFFICE   BOND,  how  proved 573 

OFFICE-BOOKS 474-476,  493-495 

OFFICER,  (/e /yc^o,  j9nma/acie  proof  of  appointment 83,92 

OFFICIAL    APPOINTMENTS,  when  provable  by  parol 92 

OFFICIAL    CERTIFICATES,  when  admissible 498 

OFFICIAL   COMMUNICATIONS,  when  privileged       ....      249-252 

(See  Privileged  Communications.) 
OFFICIAL   REGISTERS 484,485,496 

ONUS   PROBANDI,  devolves  on  the  affirmant 74 

on    party  producing  a  witness  deaf 

and  dumb 366 

on  party  alleging  defect  of  religious 

belief 370 

in  probate  of  wills 77,  81,  n. 

of  insanity  in  civil  actions 81,  n. 

in  criminal  cases 81,  n. 

in  probate  of  wills 81,  n. 

of  alibi 81,  n. 

in  actions  on  promissory  notes,  &c.,  fraudulently  put  in  circulation       81  a 

of  license,  authoi'ity,  &c 74,  n. 

in  actions  by  the  holder  of  a  bank-bill  shown  to  have  been  stolen       81  a 

in  criminal  cases       81  6 

exceptions  to  the  rule,  — 

1.  when  action  founded  on  negative  allegation  .     .  74,  n.,  78 

2.  matters  best  known  to  the  other  party 79 

3.  allegations  of  criminal  neglect  of  duty 80 

4.  other  allegations  of  a  negative  character 81 

(See  also  Burden  of  Proof.) 

OPEN   AND   CLOSE,  right  to 75,  75,  n.,  76,  76,  n. 

in  probate  proceedings 75,  n. 

in  equity 75,  n. 

in  cases  of  land  damage 75,  n. 

OPINIONS,  when  admissible .280,  440,  441,  461,  576,  580,  n. 

presumed  to  continue 42,  370 

of  underwriter 441 

of  physician 440 


INDEX.  763 

Section 

ORAL  EVIDENCE,  inadmissible  to  prove  contents  of  writing     .     .     86-93 

to  contradict  or  vary  a  writing       275-305 
(.See  Evidence.     Pakol  Evidence.) 
ORDINANCES,  county,  city,  and  town,  when  judicially  noticed     .     .       5,  n. 

ORIGINAL,  inatrumeuts  of  evidence,  what 84,  n. 

j)rinted  papers 90 

brokers'  entries,  and  bought-and-sold  notes 97,  n. 

OUTLAWRY,  judgment  of,  works  infamy 375 

OVERT  ACT,  proof  of,  in  treason 235 

OWNER,  of  property  stolen,  a  competent  witness 412 

OWNERSHIP,  proved  by  possession 34 


P. 

PAPERS,  printed,  all  originals 90 

private,  when  a  stranger  may  call  for  their  production 246 

(See  PiiiVATE  Wkitings.) 

PARCELS,  bill  of,  explained  by  parol 305,  n. 

PARDON,  its  effect  to  restore  competency     (5ee  Witnesses)      .      377,  378 

PARISH,  boundaries,  proof  of 145 

judgment  against,  when  evidence  for  another  parish 534 

books      (See  Public  Records  and  Documents) 493 

PARISHIONER,  rated,  admissions  by 179 

PARLIAMENT,  proceedings  in,  how  far  privileged  from  disclosure    .  251,  n. 
PAROL  EVIDENCE,  inadmissible  to  contradict  magistrate's  certificate 

of  examination 227,  n. 

admissible  to  establish  a  trust    .     ,     ,     , 266,  288,  n. 

its  admissibility  to  explain  writings 275-305 

inadmissible  to  contradict  or  vary  a  record 275,  n. 

written  instructions 276,  ?i. 

principle  of  exclusion 276 

the  rule  excludes  only  evidence  of  language 277,  282 

but  admits  evidence  to  show  the  existence  of  a  writing    ....  283,  /i. 

or  to  explain  the  language 283,  n. 

in  what  sense  the  words  are  to  be  understood 278 

the  rule  of  exclusion  is  applied  only  in  suits  between  the  parties  .  .  279 
does  not  exclude  testimony  of  experts  .  .  .  280 
illustrated  by  examples  of  exclusion    ....    281 

does  not  exclude  other  writings 282 

excludes  evidence  of  intention 282  a 

is  admissible  to  show  the  written  contract  originally  void      ....    284 

or  conditional 284,  n. 

want  of  consideration         .     .     .     .     .     •      284,  304 

fraud 284 

illegality 284,304 

incapacity  or  disability  of  party 284 

want  of  delivery 284 

that  a  deed  is  a  mortgage  ....     284,  n.,  296,  n. 

or  is  wrongly  dated 284,  n. 

admissible  to  explain  and  contradict  recitals,  when 285 

ascertain  the  subject  and  its  qualities,  &c.       .    286-288,  301 
ascertain  who  are  children    ....  ....  288,  n. 

these  rules  apply  equally  to  wills 287,  289-291 

Mr.  Wigram's  rules  of  interpretation  of  wills 287,  n. 


764  INDEX. 

PAROL  EVIDENCE,  —  Continued.  S^"™" 

of  any  intrinsic  circumstances  admissible 288,  288  a 

extrinsic  evideuce  not  admitted  when  description  applies  to  one 

object 290,  «. 

but  when  it  applies  to  two 290,  n. 

declarations  of  intent  are  then  admissible 290,  n. 

who  must  determine  correct  reading  of  a  paper 288  b 

of  usage,  when  and  how  far  admissible 292-294 

to  annex  incidents  admissible 294 

to  show  that  apparent  joint  obligees  are  sureties 281,  n. 

explanatory  language  during  negotiations      .     .    280.  »z.,  282,  n. 
whether  admissible' to  show  a  particular  sense  given  to  common  words    29o 

admissible  to  rebut  an  equity •    ^96 

reform  a  writing  .     .    _ 296  a 

explain  latent  ambiguities 297-300 

apply  an  instrument  to  its  subject 301 

correct  a  false  demonstration •    301 

show  the  contract  discharged 302,  304 

prove  the  substitution  of  another  contract  by  parol  303,  304 
show  time  of  performance  enlarged  or  damages  waived   304 

contradict  a  receipt,  when _305 

explain  a  bill  of  parcels 305,  n. 

PARSON,  entries  by  deceased  rector,  &c.,  when  admissible 155 

(See  Hearsay.) 

PARTICEPS  C RIMINI S,  admissible  as  a  witness        378 

PARTIES,  generally  incompetent  as  witnesses 329,  330 

competent,  when 321,  w.,  329,  n.,  348,  363 

for  all  purposes 329,  n. 

statutes  on  this  point 328,  n. 

except  when  adverse  party  is  executor,  &c 320,  n. 

as  to  conversations  of  deceased 329,  n. 

as  to  transactions  with  deceased 329,  n. 

unless  executor  testifies 329,  n. 

in  criminal  cases  may  testify 329,  n. 

by  so  doing,  waive  privileges 329,  n. 

may  testify  to  intent,  motive,  &c 329,  n. 

friends  and  strangers 523,  536 

waive  rights  to  object  to  criminating  questions 331,  n. 

impeachable,  like  ordinary  witnesses 331,  n. 

refusal  of,  to  testify,  presumption  from 331,  n. 

may  file  interrogatories  to  each  other 353,  n. 

may  be  mutually  called  and  cross-examined 445,  n. 

when  witnesses  are  entitled  to  witness  fees 310,  n. 

will  not  be  ordered  to  withdraw 432,  n. 

{See  Witnesses.     Admissions.) 

PARTITION,  when  presumed 46,  n. 

PARTNERS,  mutually  affected  by  each  other's  acts 112 

when  bound  by  new  promise  bv  one  to  pay  a  debt  barred  by  statute  112,  n. 

admissions  by      {See  Witnesses) 177,  189,  207,  527  a 

PARTNERSHIP,  once  proved  presumed  to  continue 42 

how  proved 112 

PART  PAYMENT,  effect  of,  on  Statute  of  Limitations 112,  n. 

indorsement  of 121,  122 

PAYEE,  admissibility  of,  to  impeach  the  security  {See  Witnesses)    383-385 

PAYMENT,  provable  by  parol 302-305 

of  money,  effect  of,  to  restore  competency 408-430 

prior,  admission  of,  effect  of 122,  n. 


INDEX.  765 

PAYMENT,  —  Continued.  Section 

indorsement  of  part 121,  12L' 

lion,  twenty  years',  presumption  from      (.S^ee  Witnksses)  .     .     .     .      ;j9 
PAYMENT  INTO  COURT,  when  and  how  far  conclusive       ....    205 

PEACE,  articles  of,  husband  and  wife 343 

PEDIGREE,  what  is  included  in  this  term 104 

proof  of 103-105,  n. 

declarations  as  to,  are  not  hearsay 103,  n. 

only  admissible  when  pedigree  is  in  issue 103,  n. 

and  when  declarant  is  a  member  of  family 103,  n. 

and  ante  litem  motam 105,  n. 

armorial  bearings,  as  proof  of 105,  n. 

family  recognition 103-104  a 

when  recital,  proof  of      {See  Hearsay) 104 

PERAMBULATIONS,  declarations  during 146 

when  admissible  in  evidence 146 

PERFORMANCE,  enlar<rement  of  time  of,  parol  evidence  to  show     .     .    304 

of  contract,  parol  evidence  to  prove  time 304 

PERJURY,  corroborative  proof  of 257,  257  a,  257,  n. 

what  amount  of  evidence  necessary  to  establish 257-260 

PERSONALTY,  presumptions  as  to 47 

what  is,  though  annexed  to  land 271 

PHOTOGRAPHS,  evidence  when 6  a,  n.,  82,  n.,  581,  n. 

PHYSICIANS,  when  diploma  must  he  shown    .     . 195,  n. 

generally  bound  to  disclose  confidential  communications      ....    248 

statutory  enactments  protect  in  several  States 248,  n. 

only  communications  made  in  course  of  treatment    .     .     .  248,  w. 

to  a  regular  physician        248,  n. 

do  not  protect  symptoms  of  poisoning 248,  n. 

nor  facts  patent  to  any  observer 248,  7*. 

protection  may  be  waived  by  client 248,  n. 

{See  Privilkgkd  Communications.) 

PLACE,  when  material  or  not 61-63,  65 

PLAINTIFF,  when  admissible  as  a  witness  {See  Witnesses)  318,  349,  361,  558 

PLAN  OR  MAP.  explains  location 285,  n. 

PLEA,  answer  and  demurrer  in  chancery,  admissibility  and  effect  of     .     551 

PLEAS  AND  PLEADINGS       52-68 

when  admissible  as  admissions ^"i^i  "• 

how  far  evidence 171,  n. 

POSSESSION,  character  of,  when  provable  by  declarations  of  possessor   .    106 

(^S'ee  Hearsay.) 

when  evidence  of  property 34,  34,  n. 

of  guilt ■ 34 

must  be  recent,  exclusive,  and  unexplained 34,  n. 

is  not  a  presumption  of  law 34,  n. 

its  admissibility  is  for  th«  court 34,  n. 

may  prove  other  crimes  besides  larceny 34,  n. 

{See  Presumptions.) 
whether  necessary  to  be  proved,  under  an  ancient  deed  .     .     .     -21,  144 

adverse,  presumption  from 1*^ 

when  it.  constitutes  title ^'^ 

of  unanswered  letters,  presumption  from 19*^ 

POST-MARKS 40 

POST-OFFICE,  books 484 

{See  Public  Records  and  Documents.) 


766  INDEX. 

Section 

PRESCRIPTION,  presumption  from 17 

what 17 

variance  in  the  proof  of 71,  72 

must  be  precisely  proved 56,  58 

PRESIDENT   OF   THE   UNITED  STATES, 

(See  Executive.     Privileged  Communications.     Witnes.ses.) 

PRESUMPTIONS,  of  conveyance  of  legal  estate 46 

only  from  facts  directly  proved 44,  n. 

against  party  producing  inferior  grade  of  evidence     ....    82,  84,  n. 

of  law,  conclusive,  on  what  founded 14,  15 

limitations  ro  the  class  of 48,  n. 

conclusive,  how  declared 16,  17 

from  prescription 17 

from  adverse  enjoyment 16 

from  use  of  deadly  weapon 18 

in  favor  of  judicial  proceedings 19,227 

consideration  of  bond 19 

formality  of  sales  by  executors,  &c 20 

but  not  of  matters  of  record  ...  20 
ancient  documents  ....  21,  143,  144,  570 
genuineness  and  integrity  of  deeds   .     .      144,  564 

authority  of  agent 21 

as  to  estoppels  by  deed 22-24 

by  admissions 27 

by  conduct 27 

omnia  rite  acta 20  a 

as  to  capacity  and  discretion  .........  28,  367 

legitimacy 28,  28,  n. 

coercion  of  vv'ife  by  husband 28,  28,  n. 

her  torts 28,  n. 

survivorship 29,  30,  n. 

neutrality  of  ship 29,  31 

performance  of  duty 227 

from  spoliation  of  papers 31 

from  omission  to  call  witness 51  a,  n. 

or  to  put  in  deposition 51  a,  n. 

principle  and  extent  of  conclusive  presumptions  of  law  .     .     .     .    31,  32 

disputable,  nature  and  principles  of 33 

differ  from  presumptions  of  fact 48,  w. 

of  innocence 34,  35 

except  in  case  of  libel,  and  when 36 

of  malice 18,  34 

of  lawfulness  of  acts 34_ 

from  possession 34' 

guilty  possession 34 

destruction  of  evidence 37 

fabrication  of  evidence 37 

usual  course  of  business 38,  40 

non-payment  twenty  years 39 

of  continuance 41 

of  date  of  writing 38,  n. 

of  seal  of  deed 38,  n. 

oi  life,  not  after  seven  years'  absence,  &c 41 

of  continuance  of  partnership,  onca  proved       .       ...      42 
of  opinions  and  state  of  mind     .     .     .  42,  370 

of  capacity  and  discretion  in  children 367 

in  persons  deaf  and  dumb  .     .    366 
of  religious  belief  in  witnesses 370 


INDEX.  7G7 

PRESUMPTIONS,  —  Continued.  Section 

of  international  comity 4:i 

of  foreign  laws 43,  n. 

of  laws  of  other  states 43,  n. 

always  against  fraud 34,  35,  80 

of  fact,  nature  of 44 

relation  of,  to  circumstantial  evidence 48,  n. 

belong  to  the  province  of  the  jury 44 

when  juries  advised  as  to,  by  the  court 4o-48 

as  to  receipt  of  letters  duly  mailed 40,  n. 

so  of  telegrams 40,  n. 

of  agency  in  liquor  cases • 44,  n. 

of  correctness  of  auditor's  report  . 44,  n. 

PRIMARY,  evidence,  and  secondary,  what      .     .     .     .     .     .     ,     .    82,  n.,  84 

press  copies  of  letters  are  not 82,  n. 

bought  and  sold  notes  are 82,  n. 

notarial  instrument  is 82,  n. 

counterpart  documents  are 84,  n. 

duplicates  are 84,  n. 

maps  or  plans  referred  to  in  documents  are 87,  n. 

books  or  plays  ai-e 88,  n. 

secondary  evidence,  when  admissible '84,  91-94 

what  is  primary  evidence  of  telegraphic  message    ....    84,  n.,  88,  n. 

of  registered  or  recorded  deed 91.  ??. 

of  written  laws 91,  n.,  480 

of  entries  and  books  of  account 93,  w. 

PRINCIPAL  DEBTOR,  when  his  admissions  bind  the  surety  ....    187 
PRINCIPAL  FELON,  accessory,  not  a  competent  witness  for  ....    407 

PRINTED  PAPERS,  all  originals  .     • 90 

PRISON  BOOKS,  {See  Public  Records  and  Documents.) 

when  and  for  what  purposes  admissible 493 

PRISONER  OF   WAR,  mode  of  procuring  attendance  of,  as  a  witness  .   312 

PRISONERS,  examination  of,  how  proved 520 

PRIVATE   ACTS,  what  are    .... 5,  rj. 

are  not  judicially  noticed 5,  «. 

PRIVATE  RIGHTS,  not  provable  by  reputation     ........    137 

PRIVATE   WRITINGS,  contemporaneous,   admissible  to  explain  each 

other •    283 

proof  of,  when  destroyed 558,  n. 

when  lost 557.  558 

when  fraudulently  withheld 558,  n. 

when  lost,  diligent  search  required 558 

production  and  inspection  of,  how  obtained 559 

notice  to  produce 560 

when  not  necessary •    561 

how  directed  and  served 561,  562 

when  to  be  called  for 563 

alteration  in,  when  to  be  explained 564 

when  presumed  innocent 564 

to  be  tried  ultimately  by  the  jury      .     , 564 

a  deed  renders  it  void 565 

reasons  of  this  rule 565 

alteration  and  spoliation,  difference  between 566 

by  insertion  of  words  supplied  by  law 567 

made  by  the  party,  immaterial  and  without  fraud  does 

not  avoid •     .    568 

made  by  party  with  fraud,  avoids 568 

but  does  not  divest  estate 568 


768  INDEX. 

PRIVATE  WRITINGS,— Con/i«Mec?.  Section 

alterations  made  by  party  defeats  estate  lying  in  o;rant 568 

destroys  future  remedies 5(J8 

made  between  two  parties  to  au  indenture,  but  not  affect- 
ing the  others 568 

•nroof  of,  must  be  by  subscribing  witnesses,  if  any     ....      272,  569 

unattested 569,  n. 

exceptions  to  this  rule:  — 

1.  deeds  over  thirty  years  old  ............    570 

2.  deed  produced  by  adverse  party  claiming  under  it    ...     .    571 

3.  witnesses  not  to  be  had 572 

4.  office  bonds 57-3 

subscribing  witness,  who  is •    569 

diligent  search  for  witnesses  required 574 

secondary  proof,  when  witness  not  to  be  had 84,  n.,  575 

handwriting,  how  proved 272,  576 

personal  knowledge  of,  required ^.    577 

exceptions  to  this  rule 272,  578 

comparison  of  handwriting,  by  what  other  papers 579-582 

PRIVIES,  parties  and  strangers 523,  536 

who  are  privies 23,189,190,211 

PRIVILEGE  OF  WITNESS,  from  arrest 316-318 

from  answering 451-460 

PRIVILEGED  COMMUNICATIONS,  to  conveyancer 241,  n. 

statutes  as  to _ 237,  n. 

1.  made  to  legal  counsel  ;  principle  of  exclusion 237 

does  not  apply  to  attorney  in  fact 237,  n. 

extends  also  to  client 237,  n. 

counsel  not  permitted  to  disclose 237,  n. 

who  are  included  in  the  rule,  as  counsel 239,  241 

not  of  counsel 239,  n. 

nature  of  the  communication 240,  n. 

extends  to  papers  intrusted  with  counsel 240 

opinions  of  counsel 240  a 

not  to  transactions  iu  which  the  counsel  was  also  party  ....    242 
protection  remains  for  ever,  unless  waived  by  the  party  ....    243 

is  not  waived  by  party  going  on  stand 238,  n. 

or  calling  on  his  counsel  as  witness 238,  n. 

privilege  does  not  extend  to  cases  of  fraud 243,  n. 

limitations  of  the  rule 244,  245,  n. 

when  title-deeds  and  papers  of  one  not  a  party  may  be  called 

out  of  the  hands  of  his  agent 246 

2.  made  to  clergymen,  how  far  privileged 229,  247 

3.  made  to  medical  persons,  and  other  confidential   friends  and 

agents,  not  privileged *. 248 

unless  by  statute 218,  n. 

do  not  include  telegraphic  despatches 218,  n. 

4.  arbitrators  not  bound  to  disclose  grounds  of  awai'd 249 

but  judges  may  be  compelled  to  testify  to  proceedings  before 

them 219,  n. 

5.  secrets  of  State 250,  251 

and  State  officials,  e.  fj.,  members  of  Congress,  heads  of  depart- 
ment, officers  of  police 251,  n. 

6.  proceedings  of  grand  jurors 252,  252  a. 

and  traverse  jurors 252  a,  n. 

7.  between  husband  and  wife ■     •      254,  334 

how  affected  by  statutory  competency  of  husband  and  wife  .     .  254.  n. 
English  statute  a//o?ra  but  does  not  co?7?/)e/ such  disclosure    .     .  254,  n. 


INDEX,  769 

PRIVILEGED  COMMUNICATIONS,— Co«///iWf?^i.  Section 

generally  not  allowed .*.••■  ^■^^'  "" 

communication,  if  repeated  to  third  person,  not  admissible      .  254,  n. 
if  made  to  a  third  person,  not  privileged     .     .  254,  n. 

but  may  be  proved  by  one  who  overheard  it 254,  n. 

in  some  States,  only  private  communications  privileged  .     .     .  254,  n. 

in  some  confidential  only • 254,  n. 

in  others,  all  communications 254,  n. 

(See  also,  Attorney.     Clergymen.     Husband  and  Wife. 
Physician.) 

PRIZE,  foreign  sentence  of  condemnation  as 541 

PROBABILITY,  what 8 

PROBABLE  CAUSE,  when  for  court,  when  for  jury 49,  n. 

PROBATE  COURTS,  decrees  of,  when  conclusive 518,  550 

PROBATE  OF  WILLS,  effect  of 550 

PROCHEIN  AMY,  admissions  by \    •    V^ 

inadmissible  as  a  witness 347,  391 

PROCLAMATIONS,  proof  of 6  a,  479 

admissibility  and  effect  of 491 

PRODUCTION  OF  WRITINGS,  private,  how  obtained     .     .     .      559-563 

(See  Private  Writings.) 
PROFESSIONAL  COMMUNICATIONS,  when  privileged      .     .      237-248 

admissible 352 

PROMISE,  new,  by  partner  binding  copartner    .  112,  n.,  177,  189,  207,  527  a. 
PROMISES  AND  THREATS,  as  inducing  confession 220 

PROMISSORY  NOTE,  parties  to,  when  competent  to  impeach  it    190,  383- 

385 

alterations  in 564,  n.,  566,  568 

stolen,  holder  must  show  that  he  took  them  in  good  faith    ....      81 
(See  Witnesses.) 

PROOF,  amount  required  in  civil  cases 13  o,  13  a,  «. 

criminal  cases 13,  13  a,  13  a,  n. 

defined j 

burden  of _ 74-81 

different  from  burden  of  giving  evidence 74  n. 

(See  Onus  Probandi.     Burden  of  Proof.) 

PROPERTY,  when  presumed  from  possession 34 

PROSECUTION,  malicious,  defendant's  testimony  before  grand  jury  ^ .    558 

judgment  of  acquittal,  in  actions  for  .      471,  558 

PROSECUTOR,  when  competent  as  a  witness 362 

PROTECTION  of  witness 316-318 

PROVINCIALISMS,  may  be  explained  by  experts 280 

PUBLIC  ACT,  what  is 5,  n. 

includes  charters  of  municipal  corporations       ...       5,  n. 

banks.  State  or  national 5,  n. 

generally  railroad  corporations 5,  "• 

but  query,  if  special  charters 5,  n. 

any  act  is,  if  declared  so  by  Legislature 5,  m. 

is  judicially  noticed 5,  n. 

PUBLIC  AND  GENERAL  INTEREST,     (See  Hearsay.) 

defined 5,  n. 

PUBLIC  BOOKS,  contents  provable  by  copy 91 

PUBLIC  MEETINGS,  doings  of,  provable  by  parol 90 

vol.  I.  — 49 


770  INDEX. 

Section 

PUBLIC  POLICY,  evidence  excluded  from 236-254 

(See  Attorneys.     Clergymen.     Physicians.     Privileged 
Communications.) 
PUBLIC  RECORDS  AND  DOCUMENTS, 

inspection  of  records  of  superior  courts 471,  472 

inferior  courts      .......,.,    473 

corporation  books     .     .     .     .» 474 

•when  proved  by  parol 90 

inspection  of  records  of  books  of  public  offices 475,  476 

when  an  action  is  pending 477 

when  not 478 

proof  of  public  documents  not  judicial 479-491 

by  copy      •     •     • 91,  479-484 

acts  of  State ,     .    479 

statutes 480,  481 

legislative  journals 482 

official  registers,  &c 483,  484 

official  registers,  &c.,  character  of  these  books     ....      485,  496 

proper  repository 142,  485 

who  may  give  copies 485 

foreign  laws 486,  487,  488,  488  a. 

laws  of  sister  States 489,  490 

judicially  noticed  by  Federal  courts  .     .     .    490 
admissibility  and  effect  of  these  documents  .......      491-498 

proclamations 491 

recitals  in  public  statutes 491 

legislative  resolutions 491 

journals 491 

diplomatic  correspondence 491 

foreign  declarations  of  war 491 

letters  of  public  agent  abroad 491 

colonial  governor 491 

government  gazette 492 

official  registers 498 

parish  registers 493 

navy  office  registers 493 

prison  calendars 493 

assessment  books 493 

municipal  corporation  books 493 

admissibility  and  official  private  corporation  books 493 

registry  of  vessels 494 

log-book 495 

what  is  an  official  register 484, 495,  496 

public  histories,  how  far  admitted 497 

official  certificates 498 

PUBLIC  RIGHTS,  provable  by  reputation 128,  140 

PUBLIC  RUMOR,  original  evidence 101 

PUBLICATION,  of  libel  by  agent,  when  principal  liable  for     .     .     .  36,  234 
PUNISHMENT,  endurance  of,  whether  it  restores  competency      .     .  378,  n. 


Q. 

QUAKERS,  judicial  affirmation  by  .     . 371 

QUALIFICATION,  by  decree,  when  proof  of,  dispensed  with  .     .     .  195,  n. 
by  license,  must  be  shown  by  party  licensed 78,  79 


INDEX.  771 

Section 

QUANTITY  AND  QUALITY,  whether  material GI 

provable  by  oj)inion 440,  n. 

QUESTIONS,  LEADING,  what  and  when  allowed     .     .     .     .431,435,447 

in  alternative,  may  be 434,  n. 

mixed,  law  and  fact,  for  jury 49 

QUO   WARRANTO,  judgment  of  ouster  in,  conclusive  against  sub- 
officers  under  the  ousted  incumbent 53G 


E. 

RAPE,  cross-examination  of  prosecutrix 458,  460,  n. 

when  prosecutrix  may  be  supported  by  proof  of  her  statements 

out  of  court 469 

complaint  of,  admissible 102,  n. 

but  of  particulars  of,  (/mere 102,- n. 

wife  competent  to  prove 343 

RATABLE  INHABITANTS,  distinguished  from  rated 331,  n. 

RATED  INHABITANTS,  admissions  by 175,331 

RATIFICATION,  by  estoppel 269 

REAL  EVIDENCE 13  a,  n.,  82,  n. 

REALTY,  what  is     .     . 271 

REASONABLE  DOUBT,  proof  beyond,  necessary  to  conviction  .     .        13  a. 

not  necessary  in  civil  cases    13  a,  n. 
in  suits  for  penalty    .     .     ,  13  a,  n. 

meaning  of,  as  defined  by  courts 13  a,  n. 

moral  certainty,  its  relation  to 13  a,  n. 

REASONABLE  TIME,  question  for  jury 49,  n. 

REBUTTAL,  evidence  in,  of  dying  declarations  favored 156 

RECEIPT,  effect  of,  as  an  admission 212 

when  it  may  be  contradicted  by  parol      .     .   _ 305 

of  part  payment,  by  indorsement  on  the  security 12L  122 

when  admissible  as  evidence  of  payment 147,  n. 

RECITAL,  may  be  contradicted  by  parol 284,  304 

RECITALS,  in  statutes,  effect  of •     •     •     ■    491 

in  deeds,  when  conclusive 23,  7i.,  .-4--D,  -,11 

when  evidence  of  pedigree ^^^ 

RECOGNITION,  family,  in  pedigree 103,  104,  134 

of  new  and  independent  States * 

RECOGNIZANCE,  of  witness 313 

RECOLLECTION,  refreshed  by  memoranda 93,  436,  n. 

RECORD,  what  is  matter  of  description  in o'o    '     JH 

lost,  how  proved      .  _  ._ 86,  n.,  509 

not  provable  by  admission *        °^ 

not  impeachable  by  parol  _  (See  also  Parol  Evidence)    .     .     .     '^'»' "• 

written  in  pencil,  not  admissible ^01 

nul  del,  how  tried ; kna 

extended  from  minutes  and  papers,  original 5"^'  "• 

RECORDS,  of  inferior  courts  what  are 513,  n. 

of  deeds,  when  admissible ^1'  "• 

variance  in  the  proof  of,  when  pleaded ^^ 

public,  provable  bv  copy •     •     •     •    ^ 

inspection  of     {See  Records  and  Judicial  Writings)       .      471-4/» 


772  INDEX. 

KECORDS    AND    JUDICIAL    WRITINGS,  Section 

proof  of 501-521 

by  copies,  three  kinds  of 501 

by  exemplification,  and  what 501 

by  production  of  the  record ,     .     .     .     .    502 

when  obtained  by  certiorari     .     .    502 

by  copy  under  seal 503 

proof  of  records  of  sister  States  of  the  United  States     .     .     .      504-50(5 

by  office  copy 507 

examined  copy 508 

■when  lost 64,  w.,  509 

proof  of  verdicts •    510 

decrees  in  chancery  .     .     .     ,, 510,  511 

answers  in  chancery 512 

judgments  of  inferior  courts 513 

foreign  judgments 514 

proof  of  foreign  documents 514  a 

inquisitions  post  mortem,  and  other  private  offices  .     .     .     .515 

depositions  in  chancery 516 

depositions  taken  under  commission 517 

wills  and  testaments 518 

letters  of  administration 519 

examination  of  prisoners 520 

writs 521 

admissibility  and  effect  of  these  records 522-556 

general  principles 522 

who  are  parties,  privies,  and  strangers 523,  536 

mutuality  required,  in  order  to  bind 524 

except  cases  in  rem 525 

cases  of  custom,  &c 526 

when  offered  for  collateral  purposes 

527,  527  a 
or  as  solemn  admissions       ....      527  a 


conclusive  only  as  to  matters  directly  in  issue    .     .     .      528,  534 

general  rule  as  stated  by  Lord  C  J.    DeGrey 528 

applies  only  where  the  point  was  determined 529 

to  decisions  upon  the  merits 530 

whether  conclusive  when  given  in  evidence  ....  531,  531  a 
to  be  conclusive,  must  relate  to  the  same  property  or 

transaction 532 

effect  of  former  recovery  in  tort,  without  satisfaction  .  .  .533 
sufficient,  if  the  point  was  essential  to  the  former  finding  .  534 
judgment  in  criminal  case,  why  not  admissible  in  a  civil 

action 537 

judgment,  for  what  purposes  always  admissible      .     .      538,  539 

foreign  judgments,  jurisdiction  of  court  to  be  shown  .     .     .    540 

in  rem  conclusive    ......      540,  542 

how  far  conclusive  as  to  incidental 

matters 543 

as  to  personal  status,  marriage  and 

divorce 544,  545 

executors  and  administrators    ....    544 
decisions  of  highest  judicial  tribunal  of  foreign  country 

conclusive ;     •  _ 546  b 

judgment  of  foreign  court  conclusive  inter  partes,  when      546  d 

foreign  decrees  operating  in  rem 546  e 

effect  of  defendant  becoming  party  to  proceedings  .  .  546  y 
requisites  to  a  plea  of  foreign  judgment  in  bar  ....  546  g 
foreign  judgments  in  personam,  their  effect    ....      546-549 


INDEX.  773 

RECORDS  AND  JUDICIAL  WRITINGS,  -  Continued.  Sectiom 

judgments  of  sister  States  of  the  United  States     .     .     .     ,    548 
citizenship   not  material,   as    to   the   effect   of    foreigu 

judgments 540 

admissibility  and  effect  — 

of  decrees  of  courts  of  probate  or  ecclesi- 
astical courts 550 

of  chancery  decrees 551 

answers 551 

demurrers 551 

pleas 551 

of  depositions 552 

of  foreign  depositions  ........    552 

of   verdicts  and  depositions  to  prove  matters  of 

reputation 555 

of  inquisitions 556 

of  mutuality,  as  to  depositions 553 

whether  cross-examination  is  essential  to  their  admissibility     .      553,  554 

RECOVERY,  prior  in  tort  bars  assumpsit,  when 532 

REDUNDANCY,  of  proof,  and  allegation  distinguishable 67 

what  is 58,  n. 

RE-EXAMINATION,  of  witnesses  {See  Witnesses)     ....     467,  468 
REFEREE,  statements  of,  as  admissions  {See  Admissions)      .     182,  182,  n. 
REFRESHING  MEMORY,  of  witness,  {See  Memory.  Witness.) 
REGISTER,  official  nature  and  proof  of     ...     .       483-485,  493,  496,  497 

parish 493 

of  baptisms 115,  n. 

bishop's 474,  484 

ship's 494 

foreign  chapel 493,  n. 

fleet 493,  n. 

proper  custody,  when 142,  485 

{See  Public  Records  and  Documents.) 

REGISTRY,  of  vessels        494 

RELATIONSHIP,  proved  by  common  repute 103,  n.,  105,  n. 

of  declarant,  necessary  in  proof  of  pedigree,  when,    103,  103,  n.,  104,  134 
{See  also  Pedigree.) 

RELEASE,  competency  of  witness  restored  by,  when 426,  430 

{See  Witnesses.) 

RELEVANCY,  of  evidence 49 

rules  as  to        50,  51,  51  and  notes 

decided  by  judge 51  a,  7i. 

as  to  collateral  facts 51  a,  n. 

RELIGIOUS   BELIEF,  defect  in,  how  proved 370,  n. 

RELIGIOUS   PRINCIPLE  AND   BELIEF,  presumed 370 

what  necessary  to  competency  of  witness  {See  Witnesses)     .      368-372 

RENT,  presumption  from  payment  of 38 

REPLEVIN,  surety  in,  how  rendered  competent 392,  n. 

REPLIES,  of  persons  referred  to,  not  hearsay 182 

REPUTATION,  of  witnesses 101,  461 

is  not  hearsay    (.S'ee   Hearsay.    Witnesses) 101,  n. 

evidence  of,  when  proved  by  verdict ■    139 

proof  of  relationship,  death,  and  place  of  birth 104,  n. 

not  proof  of  concubinage 107.  n. 

proof  of  marriage 107,  n. 


774  INDEX. 

REPUTATION,  —  Continued.  Section 

fact  not  hearsay 101,  101a 

proof  of,  by  verdict  and  deposition 139,  555 

of  party  or  place,  when  admissible 54,  n. 

as  to  property,  when  admissible 101,  n. 

REPUTED   OWNERSHIP,  original  evidence 101 

RES   GESTAE,  what 108,  109,  111,  114 

declarations,  when  part  of 108,  ?i. 

must  characterize  an  act 108,  n. 

qucere,  whether  they  must  be  contemporaneous      .     .  108,  n. 

if  showing  motive,  are  admissible 108,  n. 

of  mental  state 101,  n.,  108,  n. 

showing  pain,  etc. 102,  n. 

as  to  title 109,  n. 

made  in  possession  of  land 109,  n. 

pointing  out  boundaries 109,  n. 

made  by  deceased  persons ,     .     .     .  109,  n. 

by  surveyors 109,  n.,  145,  n. 

of  agents,  when  part  of  res  gestce 113,  n. 

must  characterize  some  act 113,  n. 

agency  must  be  proved  aliunde 113,  n. 

(See  Hearsay.     Entries.) 

RESIGNATION,  of  corporator  restores  competency 430 

RESOLUTIONS,  legislative 479 

at  public  meeting  may  be  proved  by  parol 90 

RESULTING   TRUSTS,  when  they  arise 266 

REVOCATION    OF   WILLS 273 

REVOLUTIONARY   GOVERNMENT,  when  judicially  noticed  .     .       4,  n. 

REWARD,  title  to,  does  not  render  incompetent 412,  414 

RIGHT   TO  BEGIN 74-76 

RIGHTS   OF   COMMON,  provable  by  reputation 129,  130 

ROGATORY   LETTERS,  what 320 

RULES,  six  practical,  concerning  evidence 584 

RULES   OF   EVIDENCE,  same  in  civil  and  criminal  cases      ....     65 


S. 

SALE,  by  administrator,  presumed  regular 20 

when  to  be  proved  only  by  writing      (See  Writing)       .     .     •      261,  267 
of  liquor,  by  bar- tender,  presumed  to  be  authorized 44,  n. 

SANITY,  presumed 28 

whether  letters  to  tlie  party  admissible  to  prove 101,  n. 

opinions  of  physicians  admissible  as  to 440 

SCIENCE,  processes  of,  and  art,  judicially  noticed 5,  n. 

SCIENTER,  notoriety  as  proof  of 135 

SCRIVENER,  communications  to,  whether  privileged 244 

SEALS,  of  new  and  independent  power,  how  proved 4 

of  notaries,  judicially  noticed ^ 

of  foreign  nations,  judicially  noticed 4 

of  admiralty  courts ^ 


INDEX.  775 

SEALS,  —  Continued.  Section 

of  courts,  when  judicially  noticed 4-6,  503 

of  corporations,  whether  to  be  proved  after  thirty  years       ....    570 
(See  TuBLio  Kecokds  and  Documents.     Kecokds  and  Judicial 
Wkitxngs) 

SEARCH,  for  private  writings  lost        558 

for  subscribing  witnesses     {See  Private  Writings) 574 

SECONDARY  EVIDENCE,  and  primary,  what 84,  84,  n. 

by  duplicate  and  counterpart 84,  n.,  558 

wlietlier  degrees  in 84,  n.,  582 

when  admissible 84,  91-96,  105,  509,  558,  56o',  575 

(See  also  Evidence.     Best  Evidence.) 

SECRETARY  OF  STATE,  when  his  certificate  admissible     ....    479 

SECRETS  OF  STATE,  privileged 250-252 

SECURITY,  impeachment  of,  by  payee 383-385 

SEDUCTION,  character  admissible  in  action  for 54 

particular  acts  of  unchastity  with  others 54 

SENTENCE,  of  foreign  courts,  when  conclusive 543-547 

(See  Records  and  Judicial  Writings.) 
SERVANT,  when  competent  as  a  witness  for  master  (See  Witness)     .    416 

SERVICE,  of  notice  to  quit,  proved  by  entry  by  deceased  attorney    .     .116 
to  produce  papers 561 

SHERIFF,  admissions  of  deputy,  evidence  against 180 

of  indemnifying  creditor  admissible 180 

SHIP,  registry  of 494 

title  to  proof  by  ship's  register 494 

log-book,  what  and  when  evidence 495 

SHIPS,  neutrality  of,  when  presumed 31 

grand  bill  of  sale  requisite  on  sale  of 261 

SHOOTING,  MALICIOUS,  wife  may  prove 343 

SHOP-BOOKS,  when  and  how  far  admissible  in  evidence    .     .     .      117-119 
statutes  on  this  point 118,  n. 

SIGNING  BY  TELEGRAPH,  Statute  of  Frauds 268,  n. 

by  mark 272,  n.,  572,  n. 

SIGNING  WILL,  what  constitutes 272 

SIGNS,  evidence  of  feelings,  not  hearsay 102,  161  b 

SILENCE,  admissions  by 197-199 

SLANDER,  who  is  to  begin  in  action  of 76 

puts  character  in  issue 55,  ?i. 

SOLICITOR,      (See  Attorney.    Privileged  Communications.) 

SPECIALTY,  consideration  for,  presumed 19 

SPIES,       (See  Accomplices.) 

SPOLIATION,  of  papers,  fraudulent  effect  of 31,  36,  n. 

presumj)tion  raised  by 37 

only  when  no  evidence  of  the  contents 37,  n. 

diiference  between,  and  alteration 5G6,  568 

STAMP       (See  Memorandum) 436 

STATE,  unacknowledged,  existence  how  proved 4 

secrets,  not  to  be  disclosed 250-252,  n. 

(See  Privileged  Communications.) 
STATUTE,  how  proved 480 


776  INDEX. 

Section 

STATUTE  OF  FRAUDS 262-274 

requires  writing,  to  convey  an  interest  in  lauds 273 

but  not  in  personalty 266,  n. 

to  make  a  sui-render 265 

to  prove  a  trust  of  lauds 266 

collateral  promise 267 

certain  sales  of  goods 267 

devise  to  be  in  writing     (See  Writings) 272 

STATUTES,  public,  proof  of ,     .     .   480 

of  sister  States 6  a,  489-491 

private       (See  Public  Records  and  Documents) 480 

STEWARD,  entries  by     (See  Hearsay  ) 147,  155 

STOCK,  transfer  of,  proved  by  bank-books .         484 

(See  Public  Records  and  Documents.     Corporations.) 

STOLEN  PROPERTY,  possession  of,  evidence  of  theft 34,  35 

STRANGER,  right  of,  to  call  for  private  papers 246 

admissions  by,  when  admissible 181 

privies  and  parties  523,  536 

depositions  admissible  against 555 

SUBJECT-MATTER,  of  contract,  parol  evidence  to  ascertain   .  286-288,  301 
SUBORNATION,  an  admission  of  a  bad  cause  ........  196,  n. 

SUBPCENA,  to  procure  attendance  of  witnesses 309,  414,  558 

when  and  how  served 314,  315 

duces  tecum,  writ  of,  force  and  effect  of 538,  n. 

must  contain  words  "to  testify" 309,  n. 

description  of  papers  in       (See  Witnesses)     .     .     .  309,  n. 

SUBSCRIBING  WITNESS 84,  n.,  569  a,  572,  575 

when  not  required 571,  572 

when  character  may  be  impeached -   126,  n. 

proof  of  signature  of  one,  wlien  sufficient 575 

(See  Attesting  Witness.     Pi^ivate  Writings.) 

SUBSTANCE  OF  ISSUE,  proof  of,  sufficient 56-73 

what  in  libels  and  written  mstruments .58 

prescriptions 58,  71 

allegations  modo  et  forma 59 

under  a  videlicet 60 

of  time,  place,  &c 61,  62 

variance  in  proof  of       .     .  ............     63,  64 

what,  in  criminal  prosecutions 65 

actions  on  contract 66 

case  of  deeds 69 

records      (See  Description)        70 

SURETY,  when  bound  by  admissions  of  principal 187 

how  rendered  a  competent  witness  for  principal 430 

in  replevin,  how  rendered  competent       (See  Witnesses)  .     .     .  392,  n. 
SURGEON,  confidential  communications  to,  not  privileged  .     .     .      247,  248 

SURPLUSAGE,  what 51 

SURRENDER,  when  writing  necessary 265 

SURVEYS  AND  MAPS,  ancient,  when  evidence   139, 139,  «.,  145,  n.,  189,  n., 

484,  m 
SURVIVORSHIP,  not  presumed,  when  both  perish  in  the  same 

calamity 29,  30,  n. 


INDEX.  777 


T. 

Section 

TAXES,  aucient  books  of  assessors  prove  abatement  of 150,  n. 

TELEGRAM,  presumed  to  be  received 40,  n. 

which  original •   84,  n.,  88,  ti. 

not  privileged '249.  ii. 

instructions  by,  signing,  Statute  of  Frauds 2(J8,  n. 

contract  by,  in  writing 284  a,  n. 

TENANT,  estopped  to  deny  title  of  landlord,  when 25 

TERM,  satisfied,  presumed  to  be  surrendered 46 

TERMS  OF  ART,  may  be  explained  by  experts 280 

TERRIER,  what,  and  when  admissible 484,  496 

TESTAMENT  AND  WILLS,  proof  of 518 

TESTIMONY,  of  deceased,  sick,  absent,  or  insane  witness       .     .       163-166 
{See  Deceased  Witness.) 

THREATS,  mducing  confession 220 

TIME,  reasonable,  question  for  jury 49,  n. 

when  not  material 56,  61,  62 

fractions  of  day^,  presumption  as  to 40,  n. 

TITLE,  possession  as  evidence 34 

of  landlord,  tenant  cannot  deny 25 

not  conclusively  barred  by  lapse  of  time 45 

presumptions  for  quieting 46 

to  land,  acts  of  ownership  as  proof 53  a 

declarations  of  former  owner  as  to 189,  190 

not  transferred  by  judgment  in  trover  and  trespass 533,  n. 

declarations  in  disparagement  of     .... 109 

of  owners  as  affectiUg  titles 166 

TITLES  OF  SOVEREIGNS,  judicially  noticed 4 

TOMBSTONE,  inscription  on  provable  by  parol 94,  105 

TRANSFER,  of  stock  proved  by  books  of  bank 484 

TREASON,  what  amount  of  evidence  necessary  to  prove  .     .     ,  234,  255,  256 

wife  incompetent  to  prove^  against  husband 345 

confession  of  guilt  in,  its  effect 235 

proof  of  overt  acts  in -     •    235 

TREATIES,  judicially  noticed o,  n. 

TRESPASS,  defendant  in,  when  admissible  for  co-defendant     .     .      357,  359 

TRIAL,  order  of  proof,  and  course  of 469  a 

when  put  off  on  account  of  absent  witnesses 320 

for  religious  instruction  of  witness 367 

{See  Witnesses.) 

Trover,  whether  barred  by  prior  judgment  in  trespass 533 

{See  Recokds  and  Judicial  Writings.) 

trustee,  when  competent  as  a  witness 333,  409 

presumed  to  convey  where  he  ought  to  convey 46 

TRUSTEE'S  PROOF,  judgment  in,  effect  of     .     . 542 

trusts,  to  be  proved  ^  writing 266 

j»except  resulting  trusts 266 

resulting,  when  they  arise 266 

established  by  parol,  when 266,  n. 


778  INDEX. 

u. 

Section 

UNCERTAINTY,  what 298,  300 

UNDERSTANDING,  not  presumed  in  persons  deaf  and  dumb     .     .     .   366 

UNDERTAKING,  to  release,  its  effect  on  competency 420 

UNDERWRITER,  party  to  a  consolidation  rule  mcompetent  ....    395 
who  has  paid  loss,  to  be  repaid  on  plaintiff's  success,  incompetent      .    392 

opinions  of,  when  not  admissible 441 

UNITED  STATES,  laws  of,  how  proved,  i/i^er  sese 489,490 

judgments  of  courts  of ^4o 

{See  Public  Records  and  Documents.     Records  and  Judi- 
cial Proceedings.) 
USAGE,  admissibility  and  effect  of,  to  effect  written  contracts  .     .      292-294 
(See  Parol  Evidence.) 

number  of  witnesses  to  prove 260  a,  n. 

of  law  merchant,  judicially  noticed o,  n. 


V. 

VALUE,  relevancy  of  evidence  of 52,  n. 

when  to  be  proved  as  laid _  63 

how  to  be  alleged  in  criminal  cases  _ 65,  n. 

entries  in  shop-books /jrma /acie  evidence 118,  n. 

provable  by  opinion 440,  n. 

VARIANCE,  avoided  by  videlicet 60 

nature  of    ... 63,  64^73 

in  criminal  prosecutions 65,  65,  n. 

in  the  proof  of  a  contract 66 

consideration 68 

date 65,  n. 

deeds 69 

when  literal  agreement  in  proof  not  necessary 69 

in  the  name  of  obligor 69,  n. 

records • 70,  70,  n. 

prescriptions 71,  t2 

fatal  consequences  of,  how  avoided 73 

(See  Description.     Substance  of  the  Issue.) 

VERDICT,  how  proved,  and  when  admissible 510 

inter  alios,  evidence  of  what 139,  538,  555 

separate  when  allowed 358,  363 

restores  competency  when 355 

VERDICTS,  and  depositions  to  prove  reputation 555 

courts  may  direct  in  criminal  cases  for  the  government,  when       .     49,  n. 

VESSEL,  registry  of 491 

VIDELICET,  its  nature  and  office 60 

when  it  will  avoid  a  variance 60 

VOIR  DIRE,  examination  on 95 

wliat     (See  Witnesses) 424 

VOLUMINOUS,  facts  and  accounts,  result  of,  provable  by  parol     93,  436,  n., 

439,  n. 
VOLUNTARY  CONFESSION,     (See  Confession.) 
VOTER,  declaration  of  intention  of 108,  n. 


INDEX.  779 


w. 

Section 

WAIVER,  of  damages,  parol  evidence  of 304 

WAR,  notoriety,  proof  of  existence  of ^'^Htq 

articles  of, "how  proved ^'^ 

WARRANTY,  limited,  in  deed,  cannot  be  extended  by  parol    .     .     •  281,  n. 

WAY,  judgment  for  non-repair  of 534 

WEKJIIT  OF  EVIDENCE,  meaning  of,  and  how  used 74,  n. 

W  incompetent  to  testify  to  admissions  by  deceased  husband  .     .    337 
(.See  Husband  and  Wife.     Pkivileged  Communications.) 


WIDO 

FE,  _ 
extends  to  torts 


WIFE,  presumption  of  coercion  of,  by  husband  . 28,  28,  n. 

■hpnrls  to  torts 2b,  n. 


may  prove  abduction ^^g 

letters  of,  to  husband  admissible  in  action  of  crim.  con lU- 

admissions  of,  when  evidence  against  husband iqx 

not  without  proof  of  agency ;^_  ■         k^i 

may  prove  crim.  con '-'^*'  "•'  ^ 

malicious  shooting ,     .      .     .    did 

competency  of,  as  witness,     (.See  Husband  and  Wife.) 

witness  against  husband  for  self-protection o4d 

may  prove  rape • 

WILL,  must  be  in  writing 970^'^^ 

what  constitutes  such  writing 2/ J,  n. 

pencil  is  sufficient jjA''  "• 

but  slate  not ^^;'  "' 

in  form  of  a  letter  is  enough ^'^'  ^ 

signature  of ^_.'^' 

certificate  of  attestation  is  evidence  of  execution -;i^-,  «• 

cancellation  of ^n. 

how  to  be  executed .^'     '     '     '     °     I-    '     ' 

parol  evidence  admissible  to  show,  to  take  effect  upon  a  contin- 

.....   2oU,  Ti- 

gency      •     •     • 979 

how  to  be  revoked " 

cancellation  of,  what •    -  ' 

admissibility  of  parol  evidence  to  explain,  &c -o/--yi 

{See  Parol  Evidence.) 

Mr.  Wigram's  rules  of  interpretation -°| '  "• 

general  conclusions .7,.    r!o 

t    t  ^  440,  518 

proof  of      ... , 

effect  of  the  probate  of • •_„ /     •    ''^^ 

alterations  in • '      ' 

WITNESS,  credibility  of,  is  for  jury '^^'"''^^569 

subscribing,  who  is \    ■'     '     ' 0 1R'^    « 

testimony  of,  subsequentlv  deceased,  insane,  &c ioo,  n. 

(See  Dp:ceased  Witness.) 

particeps  crhninis  admissible a^'p^Aq 

may  refresh  memory  by  memorandum ioo  toy 

WITNESSES,  how  many  necessary  to  establish  treason   ....     2oo,  256 

perjury   ....      zoi-.H)U 
to  overthrow  an  answer  in  chancery     .     .     .    260 

how  to  procure  attendance  of qnq 

by  suhpcena '    q 

subpoena  ducex  tecum qoo 

suhpcena  duces,  requisites  of ^^^1  "• 


780  INDEX. 

WITNESSES,  ~  Continued.  Section 

teuderoffees 310,  310,  n.,  311 

not  in  criminal  cases 311 

parties  entitled  to,  as  witnesses   .  310,  n. 
experts  entitled  to,  as  witnesses  .  310,  n. 

habeas  corpus  ad  testificandum 312 

recognizance •    313 

subpi£na,  wlien  served 314 

how  served     .     .     .      • 315 

how  and  when  protected  from  arrest 316 

voluntarily  coming  from  other  States 316,  n. 

before  Legislative  Committees 316,  n. 

discharged  from  unlawful  arrest 318 

neglecting  or  refusing  to  appear,  how  compelled     .......    319 

by  Legislatures  as  well  as  courts   .     .     .   309,  n. 

to  produce  papers 558,  n. 

omission  to  call  raises  unfavorable  presumption 51  a 

when  summoned  to  two  places  on  the  same  day 319,  n. 

liable  to  action  for  non-attendance •  319,  n. 

residing  abroad,  depositions  taken  under  letters  rogatory     ....    320 
sick,  depositions,  taken  by  commission,  when     ........    320 

depositions  of,  when  and  how  taken 321-324 

in  perpeiuam  rei  memoriam 324,  325 

competency  of "  •     •      327-430 

statutes,  as  to 328,  n. 

interested,  now  generally  competent 386,  n. 

to  be  sworn.     Oath,  its  nature    .'....... 328 

competency  of  parties 327,  330 

attorneys 364,  386 

quasi  corporators 331 

private  corporators -    .     .     .      332,  333 

members  of  charitable  corporations 333 

husband  and  wife 334-336 

how  affected  by  statutes 334,  n. 

compellability  of 334,  n. 

competent  except  in  criminal  proceedings  334,  n. 
^  or  proceedings  based  on  adultery  of  either  331,  n. 

in  proceedings  for  divorce 334,  n. 

time  gf  marriage  not  material 336 

rule  operates  after  divorce  or  death  of  one    .    337 

exception 338 

rule  applies  only  to  legal  marriages'      .     .     .    339 

how  affected  by  husband's  consent     .     .    340 

V  applies,  wherever  he  is  interested .     .     .   341 

competent  in  collateral  proceedings      .     .     .    342 

exceptions  in  favor  of  wife  .     .     .      342-345 

rule  extends  to  cases  of  treason,  semh.  .     .     .    345 

dying  declarations 346 

parties  nominal,  when  incompetent  ...........    347 

when  competent 329,  n.,  348,  353,  558 

from  necessity 348-350 

from  pni)lic  policy 350 

answer  in  chancery  admissible 351 

oath  given  diverso  intuitu,  admissible  ......    352 

never  compellable  to  testify 353 

one  of  several  not  admissible  for  the  adverse  party, 

without  consent  of  all  . 354 

when  admissible  for  the  others  in  general    .     .     .    355 
in  actions  ex  contractu '  .     .    356 


INDEX.  781 

WITNESSES,  —  Continued.  Section 

in  actions  ex  delicto 357-359 

made  party  by  mistake,  when  admissible 359 

defendant  in  ejectment,  wiien  admissible       ....    360 

in  chancery,  wlien  examinable 3fil 

in  criminal  cases,  as  to  prosecutor 302 

defendants 303 

judge,  when  incompetent 304 

juror  competent 364,  v. 

as  to  competency  of  persons  deficient  in  understanding   .     .     .      3G5-367 

persons  insane 365 

cause  and  permanency  immaterial     ......    365 

statutes  regarding 365,  n. 

persons  deaf  and  dumb 366 

as  to  competency  of  children 367 

persons  deficient  in  religious  principle  .     .      368-371 

statutes  regarding 368,  n. 

mode  of  proving  atheism 370,  ■/*. 

com{)etency  of  such  persons  is  for  the  judge  .  370,  n. 

general  doctrine  ' 368 

degree  of  faith  required 369 

defect  of  faith  never  presumed 370 

how  ascertained  and  proved 370,  n. 

how  sworn 371 

infamy  of,  renders  incompetent  .     .     .- 372 

reason  of  the  rule  .......    372 

but  now,  by  statute,  affects  credibility  only 372,  n. 

conviction  nuist  be  shown  by  judgment 375,  n. 

what  crimes  render  infamous 37o 

extent  of  the  disability 374 

infamy  of,  exceptions  to  this  rule  of  incompetency 374 

must  be  proved  by  record  of  the  judgment 375 

foreign  judgment  of  infamy  goes  only  to  the  credit   ....    376 
disability  from  infamy  remoyecl  by  reversal  of  judgment    '  .     .     .     .    377 

by  pardon 377,  378 

accomplices,  when  admissible 379 

their  testimony  n^eds  corroboration     ........      380,  381 

what  evidence  is  corroborative 381,  n. 

unless  they  were  only  feigned  accomplices 382 

waive  privileges 451,  t?.,  454 

party  to  negotiable  instrument,  when  incompetent  to  impeach  it   383-385 

interested  in  theresult,  generally  incompetent 386-430 

nature  of  the  interest,  direct  and  legal,  &c 386 

real 387 

not  honorary  obligation 388 

not  in  the  question  alone "    .    389 

*  test  of  the  interest 390 

mode  of  proof 423 

magnitufle  and  degree  of  interest 391 

nature  of  interest  illustrated 392 

interest  arising  from  liability  over 393 

in  what  cases 394-397 

agent  or  servant      ...  * 394,  396 

co-contractor 395 

what  extent  of  liability  sufficient 396,  397 

implied  warranty  sufficient 398 

balanced  interest  does  not  disqualify  ....  391,  399,  420 

parties  to  bills  and  notes 399 

probable  effect  of  testimony  does  not  disqualify     .     .     •    400 


782  INDEX. 

WlTl^ESSES,  — Continued.  _  _  Section 

liability  to  costs  disqualifies 401,  40J 

title  to  restitution,  when  it  disqualifies 4(13 

in  the  record,  what,  and  when  it  disqualifies    .     .     .      404,  405 
iu  criminal  cases,  as  accessory  ..........    407 

conspiiator,  &c 407 

nature  of  disqualifying  interest  further  explained  by  cases  to  which 

the  rule  does  not  apply 408-410 

exceptions  to  the  rule  that  interest  disqualifies 411-420 

1.  witness   entitled   to   reward,   or   rather   benefit,   ou  convic- 

tion       412-414 

2.  party  whose  name  is  forged 414 

3.  rendered  competent  by  statute 329,  n.,  415 

4.  admitted  from  public  convenience  and  necessity  in  case  of 

middle-men,  agents,  &c , 416 

confined  to  ordinary  business  transactions 417 

5.  interest  subsequently  acquired 418 

6.  offering  to  release  his  interest 419 

7.  amply  secured  against  liability  over 420 

objection  of  incompetency,  when  to  be  taken 421,  422 

how,  if  subsequently  discovered 421 

objection  of  incompetency  arising  from  witness's  own  examination 

may  be  removed  in  same  manner    .     .    422 

from  interest,  how  proved     .     .     .      423,  424 

to  be  determined  by  the  court  alone  ....    425 

examination  of,  on  the  voir  dire,  what 424 

competency  of,  when  restored  by  a  release 426 

by  whom  given    . 427 

when  not 428 

delivery  of  release  to  the  witness  not  necessary     .    429 
when  restored  by  payment  of  money  .     .     .      408,  430 

by  striking  off  name •     .     .     .    430 

by  substitution  of  another  surety      ....    430 

by  operation  of  bankrupt  laws,  &c 430 

by  transfer  of  stock 430 

by  other  modes 430 

by  assignment  of  interest 408 

examination  of .     . 431-469 

regulated  by  discretion  of  judge 431 

may  be  examined  apart,  when 432 

withdrawal  ordered  by  judge  in  his  discretion     .     .     .  432,  n. 
generally  not,  when  witness  is  party  to  the  suit  .     .     .  432,  n. 

direct  and  cross-examination,  wiiat 433 

leading  questions,  what 434 

alternative  questions  may  be 434,  n. 

when  permitted 435 

when  witness  may  refer  to  writings  to  assist  his  mem- 
ory    (See  Memory) 436,  437 

when  the  writing  must  have  been  made 438 

if  witness  is  blind,  it  may  be  read  to  him 439 

must,  in  general,  depose  only  to  facts  personally  known    .    440 

when  opinions  admissible 440,  440  a 

when  not 441 

witness  not  to  be  impeached  by  party  calling  him    .     .     .    442 

exceptions  to  this  rule 443 

may  be  contradicted  as  to  a  particular  fact 443 

witness  surprising  the  party  calling  him 444 

cross-examination,  when 445 

value  and  object  of 44G 


INDEX.  783 

WITNESSES,  —  Continued.  Sbction 

how  loiif^  the  right  continues 447 

how  far  as  to  collateral  facts 448,  48J) 

to  collateral  fact,  answer  conclusive 449 

as  to  feelings  of  hostility 450 

as  to  existing  relations  and  intimacy  with  the  other 

party 450 

respecting  writings    . 463-466 

in  chancery _•    •'^^* 

whether  compellable  to  answer 451-400 

to  expose  him, 

1.  to  a  criminal  charge 451 

when  he  testifies  to  part  of  a  transaction 
without  claiming  his  privilege  .     .      451  a 

2.  to  pecuniary  loss 452 

3.  to  forfeiture  of  estate 453 

4.  to  disgrace 454,  455 

where  it  only  tends  to  disgrace  him _456 

impertinent  ciuestions  on  cross-examination  .  45()_a 
where  it  shows  a  previous  conviction  .....  4;i7 
to  questions  showing  disgrace,  but  not  affecting 

his  credit    . .•    458 

to  questions  showing  disgrace,  affecting  his  credit  459 
when  a  question  may  be  asked  which  the  witness 

is  not  bound  to  answer 460 

modes  of  impeaching  credit  of 461-469 

1.  by  disproving  his  testimony  .  _ 461 

2.  by  general  evidence  of  reputation 461 

extent  of  this  inquiry 461 

3.  by  proof  of  self-contradiction 462 

how  to  be  supported  in  such  case 469 

how  to    be    cross-examined    as   to   contents    of 

writings _ 463-466 

4.  by  proving  conviction  of  crime 372,  n. 

conviction  must  be  proved  by  judgment  .     .     .  375,  n. 

re-examination  of •     :•'','.'  'tat 

when  evidence  of  general  character  admissible  m  support  ot    .     .     .    4oy 

order  of  proof,  and  course  of  trial i«o^?r7 

deceased,  proof  of  former  testimony It»d-iO/ 

WORDS,  of  contract,  how  to  be  understood 278 

evidence  to  explain -^^ 

WRIT,  how  proved ^^^ 

WRITING,  presumption  as  to  date  of 38,  n. 

as  to  seal  of         ^«'  "• 

when  requisite  as  evidence  of  title,  —  ^ 

on  sale  of  ships     (See  Ships) -oi 

by  Statute  of  Frauds -^- 

to  convey  an  interest  in  lands -^^ 

to  make  a  surrender ^^^ 

to  prove  a  trust  of  lands -^^ 

a  collateral  promise -^ 

certain  sales  of  goods 267 

sufficient,  if  contract  is  made  out  from  several 

writings :     '     '     "    Xnn 

agent's  authority  need  not  be  m  writing      .     .    JJ9 

unless  "to  make  a  deed     .     .     .     •  ^-    -99 

the  term  interest  in  land  expounded     .      270,  271 


784  INDEX. 

WRITING,  —  Continued.  _  .  S^''"*"' 

devise  must  be  in  writing 272 

what  is  a  sufficient  writing 272,  n. 

(See  also  Wills.) 

how  to  be  executed 272 

revoked 273 

to  bind  an  apprentice 274 

in  wliat  sense  the  words  of  a  written  contract  are  to  be  taken  .     .     .    274 

parol  evidence  to  reform 296  a 

how  used  in  cross-exaniiuation    .     .     . 465 

when  parol  evidence  is  admissible  to  explain,  &c., 
(See  Parol  Evidence.) 

to  prove  contents  by  admission 96,  n. 

public, 
(See  Public  Documents.     Records  and  Judicial  Writings.) 

written  evidence,  different  kinds  of 370 

private,  explained  by  contemporaneous  writing 283 

how  proved  when  subscribing  witness  not  to  be  had   .     .     84,  n.,  572,  575 

ancient,  prove  themselves     (See  Documents.) 141,  n. 

used  to  refresh  memory  of  witness 436-439 

essentials  of 436-438 

is  not  itself  evidence  when  so  used 437,  n. 


END   OF   VOLUME  I. 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNU 

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